Tuesday, October 11, 2016

D.A. asks court to quash indictment.

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. 


Anonymous said...

Waide needs a bigger fly-swatter with smaller holes. He is swatting at flies wherever he thinks he can find something pestering him.

Unconstitutional statute? Surely he jests. Guess he couldn't think of any other defense to create out of whole cloth for that charge.

Everything Smith has done has been for the good of justice and the proper prosecution of fairness to all. Bullshit!

Anonymous said...

Does this jackass seriously not understand the difference between "turning state's evidence" and willfully assisting a criminal defendant in order to thwart justice?

Anonymous said...

I want to know who made the decision to permit Ivon to continue operating in his capacity as a ADA, after they busted him for being dirty and unethical. I would also like a list of all cases he prosecuted after he was busted but before he pled guilty.

Anonymous said...

No doubt someone at the Mississippi Bar is asking the same question.

Anonymous said...

@5:56 the magnolia bar

Anonymous said...

Conspiring with the police (or an informant) was codified in 2007. Count 3's statute predates Brady v. Maryland so it could be struck as unconstitutional. Not saying it will, but it's a valid argument. And Waide is exactly right that the indictment is defective in counts 1-2. It doesn't list what they supposedly did.

Anonymous said...

Attorney here... very good motion. 6:36 is right. Smith haters are going to get a surprise on this..

Anonymous said...

If DA RSS out lawyers Jim Hood, heaven help the great state of Mississippi.

Anonymous said...

Non-attorney here, but commenting anyway.

Looks to me like count 3 (the misdemeanor charge) is there to assist with a final plea arrangement. Face the chance on two felonies, or plea to the misdemeanor and resign.

First arrest was on five misdemeanors; RSS fought those and they came back with the two felonies and one misdemeanor. In the beginning they were just looking to get this train wreck out of office. But he decided to enter the fight with Waide and got given this new option.

Hard to say that meeting with the convict (without his lawyer) in jail does not violate the role of the DA. Can't be aiding the defendant by providing him with required disclosure without attorney now, can you?

Anonymous said...

AG's office better not fuck this up

Anonymous said...

Outlawyering Jim Hood won't take much. And if it happens it won't be RSS but Waide (or whoever takes over once he is removed). But Hood has some capable lawyers working in the Sillers building for him that can handle the case.

Anonymous said...

It's already F'ed up. The real winner here is Ivon Johnson. That should have been a huge story. Somehow he pulled the wool and will he taking a walk.

Anonymous said...

Johnson doesn't have to be smart to get a book contract. He needs a good publisher, a decent attorney and experienced marketer. They could each pull in a couple of million. Stories of lesser ilk have brought in much more with a bit of sleeve and drama thrown in.

Anonymous said...

If the AG doesn't have evidence of RSS doing something illegal....taking money or other gifts for actually assisting...then the AG office may not win.

But....sitting Judges have filed a formal bar complaint against RSS and that body may take action against RSS.

So sit back and watch it play out.

Anonymous said...

actually, the lawyers prosecuting the case for the AG are primarily civil practitioners with very little criminal prosecutorial experience. and it is showing, starting back in June...

Anonymous said...

Lawyer here: The indictment is fine. An indictment only needs to put the defendant on notice of the alleged crime.
Also, please note there is nothing in Waide's motion that specifically states what the alleged agreement between Smith's prior attorney and the Assistant US Attorney (AUSA) actually is, or who the AUSA is. Why isn't the agreement attached to the motion as an exhibit? My bet is there is no such agreement. WAIDE is making this up. There is no Rule 11 in criminal practice. This rule requires that you have proof of allegations you put in motions or pleadings. WAIDE is savvy and unethical and is taking advantage of the lack of a Rule 11 in criminal practice.

Please know that Jim WAIDE will file anything. He is very unethical and will not let something like facts and|or the truth prevent him from filing what he wants the public to believe. Remember he claimed earlier that once the files under sealed where " unsealed", RSS innocence would be apparent. Is it just me or has the unsealed files put RSS in a worse "light".

What about the allegations about Beasley and Turk going after Butler for no reason and RSS was arrested and indicted because Smith was investigating them for picking on Butler for no reason. Did anyone read the Clarion Ledger and Jackson Free Press article were the Florida company is now suing Butler in federal court for the same allegations that Hood's guys indicted Butler for. My point is Waide is simply trying to create a scenario we're people will believe RSS is being singled out. Please notice that the NAACP has not said anything about a case that involves a black elected officia; from a very prominent civil rights family. There is a reason for this folks and that reason is Smith is guilty.

Smith is a thug with a law license and say what you want about Hood, his office is the only one that had the courage to go after RSS

Anonymous said...



Jacksonians for Justice said...

9:50, I love the idea of what the JFP story is about. Can that happen, attorneys?

Anonymous said...

9:04 another lawyer here. Curious how you find the indictment to be fine. Its the equivalent of saying (poor example but the best I can come up with after a long day) larceny without naming from whom, when, where, how, or an amount. There is a long line of cases that state an indictment must put the defendant on notice of the alleged crime. All that indictment does is allege a crime with zero specifics. As was ably pointed out earlier, hindering prosecution requires certain actions to take place. Unless I missed it, and I haven't paid a ton of attention cause your take on RSS is dead on, the indictment doesn't list any specific actions. Its defective on its face. Having dealt with the AG's office a few times, that's not surprising. They have a few good prosecutors. A few.

Judge Rudy said...

Smith has a really strange affect.

Anonymous said...

does the indictment allege any overt act towards accomplishing the conspiracy? if not, the first two counts are not valid.

8:03 - Hood has some fine appellate prosecutors, but those that do trial work handle mostly menial medicare/Medicaid fraud, nursing home abuse misdemeanors, and occasionally a public official embezzling money. nothing really high profile.

Kingfish said...

I've posted quite a few indictments on this website and just going off of the top of my head, I think they all stated specific criminal actions. Example: John Doe stole a car, VIN ____, from John Smith at XYZ Barnett Drive on June 1, 2010. However, I could be wrong.

Anonymous said...

To the lawyers - and non lawyers - I assume that disagreements like those expressed here is how lawyers make the big bucks. And that Judge Roberts will be quite capable of sorting out who is right and wrong about the indictment. What I find interesting is that Smith is not proclaiming his innocenose but rather that the indictment language is faulty.

But just like the Trump train drivers that claim the polls are rigged and faulty and we will all have an answer to that question in a month when the voters actually speak; to those that claim the indictment is faulty or fine we will have an answer to that in a few weeks as well.

Difference is, the Smith saga keeps us all interested and will affect us all with the result. The election want -we all get screwed no matter what the result is on Nov 8th.

Anonymous said...

Mississippi Unirform Rules of Circuit and County Court Practice 7.06 provides:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:

1. The name of the accused;

2. The date on which the indictment was filed in court;

3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;

4. The county and judicial district in which the indictment is brought;

5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;

6. The signature of the foreman of the grand jury issuing it; and7. The words "against the peace and dignity of the state." The court on motion of the defendant may strike from the indictment any surplusage, including unnecessary allegations or aliases.

Further, "the rule requires that an indictment provide a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him." Carroll v. State, 755 So. 2d 483, 487 (Miss. Ct. App. 1999)

Anonymous said...

There are just too many crooked people on both sides. It is very hard to decide who is right and who is wrong.

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Trollfest '09

Trollfest '07 was such a success that Jackson Jambalaya will once again host Trollfest '09. Catch this great event which will leave NE Jackson & Fondren in flames. Othor Cain and his band, The Black Power Structure headline the night while Sonjay Poontang returns for an encore performance. Former Frank Melton bodyguard Marcus Wright makes his premier appearance at Trollfest singing "I'm a Sweet Transvestite" from "The Rocky Horror Picture Show." Kamikaze will sing his new hit, “How I sold out to da Man.” Robbie Bell again performs: “Mamas, don't let your babies grow up to be Bells” and “Any friend of Ed Peters is a friend of mine”. After the show, Ms. Bell will autograph copies of her mug shot photos. In a salute to “Dancing with the Stars”, Ms. Bell and Hinds County District Attorney Robert Smith will dance the Wango Tango.

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