Hinds County District Attorney Robert Shuler Smith made it quite clear he is not going to meekly accept a complaint filed against him by the Mississippi Bar. The Bar submitted the complaint to the Mississippi Supreme Court in July after two Hinds County judges complained to the Bar about Mr. Smith's conduct in and out of the courtroom. Mr. Smith filed a response on August 16. Earlier post with copy of bar complaint.
The Attorney General's Consumer Fraud Division filed several charges against Christopher Butler. Judge Melvin Priester, Jr. attempted to hold a preliminary hearing for Butler in March. Judge Priester filed a bar complaint against Mr. Smith that was based on his alleged conduct in his courtroom that day. Earlier post on hearing. Copy of transcript included in post.
Judge Priester stated:
8. Mr. Smith interrupted the proceedings and accused the Attorney General's Office of misconduct in an unrelated investigation.
9. Judge Priester ultimately postponed the preliminary hearing in the Butler matter due to Smith's conduct...
(Smith) appeared before me in my courtroom and proceeded to act irrational, manic. and virtually out of control. Further, he could not stand still for any period of time and continuously moved back and forth from his seat, to the podium or up and down in his seat, even as other attorneys were addressing the bench. I have attached hereto a copy of the transcript for the sake of time; and while recognizing you cannot get an emotional flavor from this document that nevertheless. it must be taken into consideration.....
Mr. Smith disagreed with Judge Priester. The District Attorney said he
did not "disrupt a tribunal" or commit any other act of professional misconduct. As demonstrated by the preliminary hearing transcript, Exhibit "A," Smith did attend the preliminary hearing of Christopher Butler, where he properly brought to County Court Judge Melvin Priester's attention:
1. that drugs had been planted on Butler;
2. that at the request of the Attorney General, Circuit Judge Green had ex parte suppressed subpoenas which Smith had issued to assistant attorneys general and a circuit judge. The subpoenas were issued to investigate allegations of threats against Butler by law enforcement officers and an employee of the Attorney General; and
3. that under Williams v. State, 184 So.3d 908 (Miss. 2014), the Attorney General has no authority to bring criminal charges without the consent of the district attorney.
Keep in mind this was a preliminary hearing for some consumer fraud charges. However, the D.A. submitted several affidavits from people who witnessed Butler's arrest for drug charges by the Mississippi Bureau of Narcotics. The prosecution for those charges are currently being handled by Circuit Judge Jeff Weill. Mr. Smith provided the affidavit of one Stanley Smith. Mr. Smith claimed that the drugs were his (p.42):
I am Stanley D. Smith DOB July 5, 1968 of 3916 Hollywood Avenue, Jackson Mississippi 39213. Christopher Butler myself and several other people and were standing out in a yard on Hollywood next to Christopher's house. We observed two narcotics agents pass us in a maroon impala with tinted windows between 4 P.M. and 4:30 on April 3, 2012.Mr. Smith's brother testified that some of the drugs found in the bust were his drugs as well (p.43):
At that time, everyone in the yard began to leave because the narcotics officers were riding down the street. I borrowed Christopher Butlers blue avalanche because I dionot want to walk down the street to my house with my backpack. I had marijuana in a backpack that still had tags on it. I had a pound or better of marijuana that was basically shake and see~ In another plastic bag I had 2-3 ounces of shake and I had three pounds of marijuana in that same bag. I had another package that contained nearly a pound I had some small sacks of marijuana in the side pocket and digital scales and sandwich.bags. I then went in the house, where I told my brother, James Smith, that ifhe had any drugs to get them out of the house to me because narcotics officers were in the area. He had some crack in one sandwich bag tied up in the corner which he placed in the backpack that was in the back of the truck.. I went in the kitchen to check my meat that was thawing, but it was not ready to cook. I then went back outside to see if the narcotics agents were still in the area At that time I walked back down the street. Some other guys decided to start playing cards so I joined in I began to play cards. Christopher Butler came from his house, walked next door and asked me for the keys to his truck. I gave Christopher Butler the keys to his truck and told him that the truck was in my yard. I asked Christopher if was be about to leave and he said "no". I did not mention that my backpack was in the bed of the blue Avalanche. I tried to call Christopher when I realized that he had got in the truck and left. I later learned that Christopher Butler was stopped and the police found the bag in the back of the truck. I am very sorry that this has happened but I must be responsible for my property.
Mr. Smith also submitted the affidavit of Josh Ledford. Mr. Ledford provides more details about the MBN raid (p.49).
I am James Earl Smith DOB September 11, 1962. My brother Stanley walked in the house between 4 P.M and 4:30 on April 3, 2012. He told me that there were police riding down the street and if I had any drugs to get them out of the house. I placed a small amount out crack cocaine in the black book bag in the bed of Christopher Butler's blue Avalanche. I later learned that Christopher Butler drove off in the truck before I could get my drugs out of the bag in the back of the truck. The crack in the black backpack book bag belonged to me.
The Attorney General attempted to quash several grand jury subpoenas issued by the D.A in January. (p.3) Senior Circuit Judge Tomie Green appointed Amy Whitten as a special master to hear the A.G.'s petition. The D.A. allegedly tried to contact Ms. Whitten ex parte...
The Bar said the rules bar lawyers from communicating with judge's ex parte during a proceeding, attempting to disrupt a tribunal, and attacking the integrity of a judge. (p.4). Judge Green stated in a letter to the Bar on February 17:
l am appalled at your malicious and unprofessional statements made during a February 12, 2016 news conference. Your conduct was intentional, retaliatory and improperly coercive at a time when l had under advisement an issue dealing with the impropriety of subpoenas you issued. Consequently, your accusations caused my family and I to endure unflattering, destructive and dangerous repercussions from the public. Your statements were intentional, and you knew or should have known they would evoke unwarranted outrage by Hinds County citizens. (Dear Judge Green: At least he didn't do it in Iambic Pentameter.)
Judge Green also reported to the bar in a handwritten letter attached to the letter quoted above:
I am attaching other documents that proceeded our DA's news conference on 2/12/16. I had under consideration grand jury subpoena that were challenged by the Atty Gen & his staff, the MDOC Marshall Fisher and staff (formerly of MBN). I appointed Amy Whitten as special master. The DA attempt to contact and harass her. I issued a clarification order prohibiting ex parte contact by him or any other party. He never ceased. ...
On 2/9/16, the DA slipped a handwritten note under my office door "trying to get me to meet with his mother." I know of his mother but have no personal relationship with Alice Smith. I emailed him to let him know the note and request was odd and improper.Mr. Smith declares that Judge Green's actions are illegal and without precedent:
The next day his mom left a voicemail at my office. She said it was left in response to me but I never talked to her. She was a bit irate and demanded respect and said she knew "what to do". I can email you the voicemail for review.
Smith agrees that Judge Green, through ex parte communication with representatives of the Mississippi Attorney General's office, suppressed subpoenas, including subpoenas served upon assistant attorneys general Shaun Yurtkuran and Patrick Beasley. Without prior notice to the district attorney, Judge Green then appointed Amy Whitten as Special Master. District Attorney Smith knows of no statutory authority for appointment of a Special Master, at taxpayer expense, in a criminal case. Such an appointment is an unlawful expenditure of taxpayer money. being appointed.
Smith admits that he did have a press conference because the public has a legitimate interest in knowing about unlawful conduct, even by a judge. Smith had ample factual basis for believing Judge Green was issuing unlawful orders in criminal cases. See, for example, documents contained in Exhibit "F." These are documents evidencing Judge Green's releasing criminal defendants under the supervision of a private company. There is no statutory authority to use taxpayer funds to pay a private company for supervising pretrial detainees, and some of the orders so releasing criminal defendants were without appropriate notice to the district attorney.
Smith's note to Judge Green was not related to any pending case. It was written because Smith's mother had requested to meet with Judge Green, since she wanted Smith and Judge Green to "get along."
The District Attorney further argued that the Mississippi Bar can not regulate his right to free speech:
Kingfish note: Some commenters have asked why the Magnolia Bar is not handling this case. There is a really simple answer. The Mississippi Bar is empowered by the Mississippi Code and the Mississippi Supreme Court to regulate and discipline the legal profession. The Magnolia Bar is just an advocacy group for minority lawyers. The legislature and Mississippi Supreme Court would have to act before it could assume the regulatory powers of the Mississippi Bar. Keep in mind all minority lawyers belong to the Mississippi Bar as well.
His speech was not designed to influence any adjudicatory body. There was no "legitimate interest" in "regulating the speech."1 '·[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, ... And an enforced silence, however limited, solely in the name of preserving the dignify of the bench, would probably engender resentment, suspicion,and contempt . . . .