Sunday, August 14, 2016

DA wants day in court, AG tries to DQ lawyer

The prosecution of Hinds County District Attorney Robert Shuler Smith took several twists and turns last week.  The D.A. tried to get a hearing while the Attorney General tried to prevent attorney Jim Waide from defending Mr. Smith.   Attorney General Jim Hood arrested Mr. Smith and charged him with six misdemeanor counts of improperly helping criminal defendants and using a grand jury to pressure a judge.


All County Court judges in Hinds County recused themselves from handling the case.  The Mississippi Supreme Court appointed special Judge James Bell to preside over State of Mississippi v. Robert Shuler Smith.  Mr. Smith argued in a motion to dismiss that the Mississippi Constitution requires his indictment before he can be prosecuted and removed from office.  He also asked the court to unseal several documents and transcripts from  other cases.


Mr. Smith filed a notice that scheduled a hearing for August 18 at 9:30.  He asked the court rule on his

Motion for Immediate Dismissal Based Upon Admission of Mississippi Attorney General, Motion to Be Provided Transcripts of Sealed Proceedings and Copies of Documents Filed in Sealed Proceedings, Second Motion to Be Provided Transcripts of Sealed Proceedings and Copies of Documents Filed in Sealed Proceedings, Motion to Dismiss for Lack of Indictment by Grand Jury, and Motion for Extraordinary Relief for Appointing a Special Prosecutor in Lieu of the Mississippi Attorney General from Prosecuting Any Cases Against Robert Shuler Smith, on Thursday, August 18, 2016, before Special Circuit Court Judge James D. Bell, in the Circuit Court of Hinds County, Mississippi, at 9:30 a.m., or as soon thereafter as counsel may be heard.
However, the Attorney General asked the court on Thursday to postpone the hearing:

the State of Mississippi, by and through the Office of the Attorney General, and requests this honorable Court to stay all proceedings in this matter pending the resolution of a Motion concerning the grand jury which has been presented to Special Judge Larry E. Roberts.

Wherefore, premises considered, the State of Mississippi respectfully requests this honorable Court to stay all further proceedings in this matter – including the hearing set for August 18, 2016 – pending resolution of the Motion concerning the grand jury.

 The prosecution was not done firing at the defense as it filed a motion to disqualify Attorney Jim Waide from representing Mr. Smith.  The motion stated

the State of Mississippi, by and through the Office of the Attorney General, and moves this honorable Court to disqualify defense counsel, Jim Waide, from representing the defendant in  this matter. In support of its motion, the State of Mississippi would show the Court the following:

1. Attorney Jim Waide entered his appearance as counsel of record for the defendant, Robert Shuler Smith (“Smith”), in this action on June  29, 2016.  See Dkt. No. 5.

2. On the very next day, June 30, 2016, the State of Mississippi, through Special Assistant Attorney General Larry G. Baker, wrote Attorney Waide a letter advising him of the State’s view that since he may be a witness in this case, that he could be disqualified from representing Smith pursuant to Rule 3.7 of the Mississippi Rules of Professional Conduct. See Exhibit A.

3. In a telephone conversation with Special Assistant Attorney General Robert G. Anderson on July 1, 2016, Mr. Waide was again advised of the State’s view that he is a likely witness in this case and could be disqualified from representing Smith. Notwithstanding the State’s statement of its position that Waide is a likely witness in this case, he has filed a number of motions on behalf of Smith.

4. The State is mindful of that fact that the issue of disqualification should be raised in a timely manner so as to avoid any suggestion that the State has waived the issue of disqualification. See Colson v. Johnson, 764 So.2d 438 (Miss. 2000). At this point in time, there have been no hearings in this Court and none of the motions on file have been taken up by the Court as yet. For that reason, the State of Mississippi now urges the Court to disqualify Jim Waide from representing Smith further in this case.

6. Even before the Mississippi Rules of Professional Conduct were adopted, the Mississippi Supreme Court had ruled that if an attorney or prosecutor is aware before trial that he will be a necessary witness, he should withdraw....

In this case, the State has brought charges alleging that Smith, while acting in his capacity as District Attorney, willfully and unlawfully consulted, advised and counseled Christopher Butler, a defendant who had been charged with embezzlement and wire fraud in the First Judicial District of Hinds County, Mississippi. See Affidavit, Dkt. No. 1. Smith was arrested on the charges filed in this case on June 22, 2016. As part of its case-in-chief in this matter, the State intends to offer evidence that Smith had one or more conversations with Attorney Jim Waide regarding Smith’s attempts to assist Christopher Butler in connection with the pending charges against Butler. For example, in one recorded conversation between Smith and a confidential informant, Smith stated the following: “So we got Jim Waide . . . “ and “he [Waide] came down here straight from New Orleans when I called him. . . .” In a further discussion with the confidential informant about Waide, Smith stated “Oh, we going to get him [Buterl] free now between me and Waide and all that, and then Dennis is doing his thing on the other one.” During another recorded conversation, Smith receives a call and states, “Hey! How you doing, Jim?” This conversation lasts for over 15 minutes. After the call, Smith tell the confidential informant, “That was Jim Waide.” Smith later tells the confidential informant, “he said we have injunctive and declaratory relief.”

8. As these excerpts plainly reflect, Smith sought to have Waide represent Butler in a pending case, although Butler already had counsel. Since the Christopher Butler case is a central matter in the State’s case against Smith, Waide will be a necessary witness in the State’s case against his client, Smith. While other witnesses might be called to testify about Smith’s involvement in the Butler case, the State will put in issue the question whether Smith sought to engage Waide to represent Butler and, in that respect, Waide’s testimony is necessary to this prosecution and renders Waide disqualified under Rule 3.7.

Where is John Grisham when we need him?


35 comments:

Anonymous said...

I assume "Dennis" is Dennis Sweet?

Serious Question From Non-Lawyer said...

Since Mr. Waide made it known that he is representing Mr. Smith before the Attorney General's office suggested it may consider Waide as a witness, would it not be true that the 'first announcement' takes precedence over the second? If not, what's to keep a prosecutor, in ANY case, from up and claiming that the defense attorney may be called as a witness, thereby gaining an element of leverage?

Surely the State knew that Mr. Smith might employ Mr. Waide as attorney. And if that is true, was not the AG obligated to raise this objection in his original complaint?

This reminds me of the Perry Mason show where the defendant up and marries a witness just prior to her being called to the stand.

Anonymous said...

Non-lawyer you completely miss the point. If Waide is a witness he cannot represent Smith. What you are saying makes no sense. It is not a matter of who stated what side they were on first. Waide was enlisted by Smith to aid Butler. Please keep up. Smith is not supposed to be helping Butler--that is the crime he is charged with. If he told an informant that he (Smith) was getting Waide to aid in representing Butler, then Waide is a witness to the crime that Smith committed. This is not a Perry Mason episode. This is s real life instance of the DA breaking the law. Please keep up

Anonymous said...

Who is the confidential informant?

Anonymous said...

@7:02 - good try. But over the years it has become evident that the 'lawyer wannabees' on JJ just don't bother to take too much to fact, statutes, and details like that. Perry Mason (and with the younger set, Law & Order) amounts to their legal education. And they believe that every crime should be able to be solved with the techniques available on NCIS.

Waide is the one that I am surprised at in this case - surely he realized that he had a problem with this representation. Even if he didn't figure it out on his own, once Conway's folks informed him I'm surprised he didn't cut bait and run from ole eyebrows.

Anonymous said...

The confidential informant is probably a criminal.

Anonymous said...

Too many damn crooks involved for a normal person to keep up with.

Anonymous said...

Granted, it's been a while, but I used to be pretty sure only MBN had state power to wiretap. Did I miss where another state entity got that authority? Or are the Feds releasing transcripts?

Anonymous said...

This going to get ugly.

Anonymous said...

Who other than the fired asst DA. Sounds like the AG has his ducks in a row- unless the Hinds Co. jury pool is tainted to DA.

Anonymous said...

Ivon

Anonymous said...

7:02

Mr lawyer man....explain the rules which pertain to what information a prosecutor must provide to a defendant these days and then explain how it's possible (that's a key word matlock) that RSS' behavior could gel with these production requirements.

?

Anonymous said...

@ 7:54 PM

The facts, as written, do not necessarily provide any direct evidence of a "wiretap". IMHO.

Anonymous said...

@ 9:26 PM

Read the Uniform Rules..., as to when discovery is required in a criminal proceeding.

someoneinnorthms said...

Well, we all know that the United States Constitution doesn't apply in Mississippi--just the Uniform Rules.

A Man At A Table Is Not A Street Sign.. said...

7:02; As I said in my post, it was a serious question. The reference to Perry Mason was comical and went right over your head.

Do you think we need YOU to tell us that Smith is accused of a crime? And while you're reciting the elements of the charge, which we all know, you admonish others to 'keep up'?

The question remains: What is to keep any prosecutor from claiming he intended to call the defense attorney as a witness?

And in case you missed it, by not keeping up, Waide was 'listed' as defense attorney PRIOR TO the claim being made that he might be a witness (which was the basis for the original question). And no, we don't go to 'Law And Order' or NCIS for our legal training. We always come to Jackson Jambalaya for the correspondence courses.

Anonymous said...

"Anonymous said...
I assume "Dennis" is Dennis Sweet?"

Brilliant! We should put a stop watch on you.

Kingfish said...

Actually, the judge allowed the lawyer to testify in The Client.

That settles it.

Anonymous said...

@5:30 good point. Could be a recording made by the confidential informant.

Anonymous said...


My question would be, what is RSS defense to this? It looks like he clearly admits to committing the acts for which he is charged with.

Anonymous said...

An exceptional amount of ignorance in the comments today. That Madison stabbing must have caused all the chicken littles to lose sleep.

Anonymous said...

10:03 AM gets it....without knowing it.

The rules regarding disclosure of exculpatory evidence could cover RSS' actions.....unless he got paid.

Then there's a problem.

Anonymous said...

It's one thing to disclose exculpatory evidence and a whole nother thing to meet with the defendant, hire a lawyer for him, and collaborate on a defense for him.

Anonymous said...

1:37 PM

That makes sense to me...and I am not suggesting that this is proper....but the problem is...it may not be "illegal."

If the Feds and the AG have been scheming to find something on RSS and all they came up with is a simple misdemeanor.....don't you think its weak?

And what the AG can prove is a far cry from what he can allege in documents......

The DA has wide ranging powers and he has wide discretion in how he runs his office.....

This is not as easy as it looks for the AG.

Anonymous said...

2:58...WANNA BET?

Anonymous said...

3:39 - I want in on that bet if 2:58 takes.

The fact that the current charges are misdemeanors is not as significant as one would think. Frankly, it is probably to get the pot boiling and watch to see if the frog jumps out or stays in while the water gets hotter. Watching the circus from the sideline makes it look like RSS is going to let the pot boil over while he sits on the bottom and stews.

The DA might have 'wide ranging powers' but it does not include colluding with a defense attorney to get an indicted criminal and drug dealer (wonder who's) off the hook. The DA's job is to prosecute - if he thinks the one in jail is not a criminal, he should not be prosecuting rather than setting up a process using the judicial system to get the perp out of the rap.

And to the bright light at 8:23 - of course Waide was listed as defense atty before the AG told him he might be called as a witness. Prior to his filing an appearance, there was no need at the time for the AG to notify him. Once Waide filed the appearance, the AG immediately let him know of the conflict. Understand now? Up until the appearance by Waide, the AG had no reason to rush into notifying Waide of his potential testimony.

And what is to stop a prosecutor from whatever this theory is of yours that they could disqualify all attorneys? Well, they would have to have a basis for thinking they would call the individual as a witness. If they did it willy-nilly as you suggest, they would be setting themselves up for getting some pretty bad contempt charges and fines, I would imagine.

Anonymous said...


What 4:39 PM said!

Watta Clown.. said...

4:39 has obviously watched Matlock three days in a row on ATT U-Verse 138. "Immediately"? "Potential"? "Willy-Nilly"?

Anonymous said...

"immediately" - think it was filed within a day or two of Waide's notice. In legal terms of filing briefs and notices, that is pretty damn immediate.

"Potential" - That's all the AG has said; don't think it has been stated as an absolute

"Willy-nilly" - what you don't like about that term?

Does Matlock still come on? Haven't seen him for decades.

Anonymous said...

"Does Matlock still come on? Haven't seen him for decades."

Don't let us catch you lyin'. You watch Matlock every morning right before you watch The View.

Victor Commode said...

If Eyebrows-Esquire will hurry up and marry the incarcerated fellow, that would preclude his testimony. At least I saw that on Law and Order.

Anonymous said...

6:11 AM

Winner.

And that might be the best way to keep the only damning evidence out...that RSS did what he did for money.

If you can't put dollars with his actions these charges are dismissed.

Anonymous said...

Except I heard he recently got married. Although, bigamy would be the least of his problems. He needs REHAB!

Anonymous said...

Regarding the aforementioned conversation between RSS and the CI... Does anyone who knows RSS really believe that he has any idea what is meant by the terms "injunctive and declaratory relief"?

Anonymous said...

"...any idea what is meant by the terms "injunctive and declaratory relief"?"

Sounds to me like a late night television add for relieving a bowel problem. I checked into a Holiday Hotel two days ago right beside a lawyer who was on the phone.

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