Update: Judge Bell postponed the hearing that was scheduled for today.
Embattled Hinds County District Attorney Robert Shuler Smith asked a Hinds County Court Judge to order the Attorney General to produce sealed transcripts of tape recordings recordings of Ivon Johnson as well as the live bodies of Johnson and Christopher Butler at a hearing scheduled for tomorrow afternoon. Special Judge James Bell will preside over the case.
Attorney General Jim Hood arrested Mr. Smith in June and charged him with six
misdemeanor counts of improperly helping Butler and another criminal defendant and using a
grand jury to pressure a judge. Former Assistant District Attorney Ivon Johnson pleaded guilty in federal court recently to accepting bribes in exchange for giving favorable treatment to criminal defendants.
Tupelo attorney JIM Waaaaaiiiide represents the District Attorney. A.G. prosecutors filed a motion to disqualify Mr. Waide from representing the D.A.. The prosecution argued it will call Mr. Waide as a witness:
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.”However, Mr. Smith fired back yesterday and asked for
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.
The transcripts of the tape recordings, recorded by the State’s “confidential informant” described on page 4 of the State’s Motion to Disqualify Defense Counsel
The person of Ivon Johnson, who is the “confidential informant” referenced in the State’s Motion to Disqualify Defense Counsel; and
The person of Christopher Butler, who alleges that he has been threatened in order to induce false testimony.
Mr. Smith then provides his reasons for submitting the motion:
The Mississippi Attorney General seeks to disqualify Attorney Jim Waide from representing Robert Smith on the grounds of Waide’s knowledge concerning Smith’s attempting to obtain Waide to represent Christopher Butler. The State’s Motion to Disqualify Defense Counsel is supported by a conversation which Ivon Johnson secretly recorded.....
The D.A. also alleges that the A.G.'s prosecutors tried to intimidate Butler into providing false testimony:
Besides being relevant on the Motion to Disqualify Defense Counsel, Butler’s testimony is also relevant on the State’s Motion to Stay Proceedings. Specifically, Butler alleges he has been threatened to give false statements against Smith. See letter written by Butler, Exhibit “A.” If such threats have occurred, there may be continuing pressure on Butler to testify falsely. In the face of such pressure to give false testimony, a stay is not appropriate....
Mr. Butler no longer resides at the Hinds County jail but Mr. Smith is attempting to find out where he is:
Butler was housed at the Rankin County Jail. Nevertheless, public records indicate that Butler has been transferred to an “unknown agency.” See Current Status Report of Christopher Butler, Exhibit “B.”...
Mr. Smith asks the court to dismiss all charges if prosecutors can not produce Butler and Johnson at the hearing scheduled for tomorrow.
24 comments:
RSS will lose this one.
The discovery rules mandate that the prosecuting party turn over all statements of the defendant, recorded or written. Seems like this has to be turned over period.
Looks like RSS's whisperers have gotten DonnerKay to carry his water.
12:34 this is true but criminal discovery rules only kick in after an indictment. There hasn't been an indictment against RSS yet. The AG really has no obligation to turn anything over at this point.
He's charged with misdemeanors so indictment is not necessarily required (though RSS says it is in his case). Under the way he's been charged thus far, he's entitled to discovery. Whether his requests are within the discovery rules is another matter altogether.
3:26 true and good point. So how does Circuit court have original jurisdiction?
County Court is where the misdemeanors are pending. It has misdemeanor jurisdiction.
12:34 must be a prosecutor . . . .
The United States Constitution requires prosecutors turn over to criminally-charged defendants any information in their actual or constructive possession if that information is relevant to the culpability or sentencing of the defendant. Also, they must turn over evidence that is impeachment material upon their own or the defendant's witnesses. Any information that would bear on the deliberations of a potential jury should be disclosed to the defense.
These categories of information are compelled by the CONSTITUTION. Whenever I ask for it I am routinely told (or hear in motion hearings), "but the rules don't require it." I may be wrong, but the theory of interposition died in October of 1962 in Oxford, Mississippi.
There ought to be an annual CLE requirement on the Supremacy Clause.
Why wouldn't you post my entry dickhead? He IS a clown and IS going down.
Robert Shooter Smith.
August 17, 2016 at 8:30 PM = Loyal JJ Reader!
5:01, please take that argument to Flowwod municipal court on a DUI or misdemeanor shoplifting and see how far it gets you.
I've been told in a justice court that shall remain nameless that, "we don't follow the constitution here. That's for the big courts." Just because it's the law doesn't mean courts or cops follow it. What's the rule of law between friends, right? Wink, wink. Nod, nod. After all, we know who's guilty anyway.
5:01, the constitution does not establish discovery in criminal cases. it is created by court rules. Mississippi has "open file" discovery which means the prosecution must divulge all information about the case including all statements, witnesses, physical evidence, expert opinions and so on. Contrasted to federal courts where you get very limited information from the government; no witness names or statements with few exceptions.
by filing the affidavits, Hood obligated his office to provide discovery. by filing the affidavits, they violated the law because only a grand jury can charge a DA under this statute. this is to prevent the AG from grinding political axes with a DA, at least in theory.
Hood better tie a cash injection to RSS or this is over
8:24, you're right! I see now in the Shepard's how Brady v. Maryland, Giglio v. U.S., and Kyles v. Whitley don't apply to Mississippi. I should have looked it up earlier. Who knew that US Supreme Court cases could interpret the Constitution in such a way that it exempts one of the States from it?
I have never understood why you prosecutors are so hell-bent on operating in such secrecy when there is so much authority telling you not to.
So, 8:24, if the MS Supreme Court amended those court rules away then the defendant is entitled to NO information about his case prior to trial? Other than public record requests and such. Is that what you're saying?
8:57 Brady and the other cases you semi-cited would exist even if there were no rules of discovery. Brady says it violates due process to convict someone by withholding exculpatory evidence. its not based on a discovery rule. you simply ASSumed that discovery is within the constitution. its not.
Sort of hard to accept that a person would be forced to go to court without even seeing the evidence used against him.
Sound un American to me.
well, accept this: the federal government is allowed to withhold the identify of witnesses and their statements. you are allowed to view and test physical evidence. you have no access to grand jury witness transcripts until after the witness has testified at trial. its been years since I practiced federal criminal law, so some things may have changed, but I doubt it.
why, you ask? because at one time the majority of trial in federal courts were of organized crime activity, and revealing the identity of witnesses risked their lives is one reason. I honestly don't know why that applies to medicare/Medicaid fraud and the vast array of nonviolent crimes they prosecute now.
I give. Arguing with prosecutors on a blog is worse than arguing with them in court. At least in a court there's a judge who might have read the law. Prosecutors obviously never do.
Just because a judge might know the law does not mean they will go by that law. Money is the great equalizer. If you have enough money laws do not pertain to you.
Judge Bell did the right thing. He is well aware that you can't, um, "unring the bell", so to speak.
8-18-16 @ 8:08PM
You do not really know the truth of the words of which you speak, most surely regarding Copiah County and others. Now, and certainly during the period of mass tort litigation.
It certainly continues to this day, not to the extent of the large amount of $$$$$ that passes through many hands, however pay to play does
indeed continue.
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