Embattled Hinds County District Attorney Robert Shuler Smith asked Special Circuit Judge Larry Roberts to dismiss his indictment. A Hinds County grand jury indicted Mr. Smith in September for three counts of improperly helping criminal defendants. Mr. Smith filed a motion to quash and dismiss the indictment today. Attorney General Jim Hood is prosecuting the indictment.
Mr. Smith argues the actual indictment does not state the offense he allegedly committed. The indictment states in Count I:
that, ROBERT SHULER SMITH and JAMIE K. McBRIDE, in the First Judicial District of Hinds County, Mississippi on or about and between the dates of December 1, 2015, and June 22, 2016, did then and there knowingly, unlawfully and feloniously, without authority of law, conspire with Ivon Johnson and with others known and unknown to the Grand Jury to commit the crime of Hindering Prosecution in the First Degree in violation of § 97-9-105 of the .Mississippi Code, 1972, as amended, by conspiring to hinder the prosecution, conviction and punishment of Christopher Butler in Hinds County Cause Numbers 12-452 and 12-831 in violation ...(code sections).....County II contains similar language. Count III states:
as part of a common scheme and plan, in Hinds County, Mississippi on or about and between January 14, 2016, and June 22, 2016, ROBERT SHULER SMITH while acting in his capacity as District Attorney for the Seventh Circuit Court District, Hinds County, Mississippi, did willfully and unlawfully consult, advise and counsel defendant Christopher Butler, who was then and there a defendant charged with a crime in the Seventh Circuit Court District, Hinds County, Mississippi, by meeting with Christopher Butler at the Hinds County Jail outside the presence of Butler's attorney, by later, advising Butler's attorney in various ways to attack the State's pending case against Butler, and by other means seeking the release of Butler from jail in violation of § 97-11-3 of the Mississippi Code, as amended...
However, Mr. Smith argues that the indictment does not state a specific act that violates the statute. Section 97-9-103 of the Mississippi Code states that a someone must :
a)hide or conceal someone or
b)warn someone of impending discovery or apprehension or
c) Help someone avoid discovery or apprehension by giving money, weapons, transportation, or other aid
d) Use force, intimidation, or deception to help someone avoid discovery or apprehension
e) destroy or hide evidence that might help discover, apprehend, or convict a criminal.
and that failure to state the specific act that is covered by the statute voids the indictment.
The motion also claims that the indictment never actually charges that Mr. Smith and co-defendant Assistant District Attorney Jamie McBride conspired together to assist Christopher Butler but it only states that the only person Mr. Smith allegedly conspired with was former Assistant District Attorney Ivon Johnson. Mr. Johnson pleaded guilty in federal court in August to accepting money to help criminal suspects get favorable treatment. It is argued that neither defendant can be convicted of conspiracy when the other conspirator was an informant.
However, Mr. Smith is not done with trashing the indictment. He argues that the third count is unconstitutional because it is vague. Count III states:
If the attorney general or any district attorney shall, in any manner, consult, advise, counsel, or defend, within this state, a person charged with a crime or misdemeanor or the breach of a penal statute, he shall, on conviction, be fined in a sum not exceeding five hundred dollars, be removed from office, and rendered incapable thereafter of filling any office of profit or honor in this state...The District Attorney argues that this statute "would chill" a prosecutor's ability to serve the people and limit his ability to talk to others. The law also criminalizes the ability of the D.A. to provide evidence to Mr. Butler that might clear his case.
Mr. Butler was indicted for drug dealing in Hinds County after he was arrested by Mississippi Bureau of Narcotics agents. Mr. Smith has tried to dismiss the indictment but Hinds County Circuit Judge Jeff Weill would not allow him to do so unless he filed a motion in writing. Mr. Smith never did submit the motion. The D.A. claims that MBN framed Butler and doctored a videotape that would clear Christopher Butler.
Mr. Smith states he has a duty under the Mississippi Rules of Professional Conduct to provide such exculpatory evidence to a defendant such as Mr. Butler. He also defends helping Mr. Butler:
This elementary principle – that a prosecutor’s advising criminal defendants may be a part of his job – is illustrated in this very case, where Mississippi Attorneys General and the Federal Bureau of Investigation have advised criminal defendant Ivon Johnson to secretly tape record Smith in order for Johnson to receive a lenient sentence for the bribery scheme in which Johnson was involved. That Johnson was advised either by an FBI agent or by an assistant attorney general is proved by the fact that Johnson has pled guilty, without having counsel and without any sentence being imposed. To prosecute Smith without prosecuting the FBI or Attorney General is to prosecute with an “unequal hand,” thus violating constitutional principles that were settled over a century ago...The motion makes several other allegations. Mr. Smith complains the A.G. will not return his personal and government-issued cellphones and that they were seized without warrants when he was arrested. The A.G. refuses to disclose the locations of Ivon Johnson and Christopher Butler. He also argues that the wearing of a wire by Ivon Johnson violated the D.A.'s constitutional rights.
As the District Attorney has said.... stay tuned.