"Copy of motion"
The prosecutor filed a motion to preserve testimony in the Karen Irby case July 17, 2009. The motion states:
"On or about April 24, 2009, Hinds County Investigator Kenny Lewis attempted to contact Mr. Irby in an effort to obtain Mr. Irby's recollection of the events that caused the injuries sustained to his person and the deaths of Mr. Pouge and Ms. Dedousis. Investigator Lewis was unable to speak with Mr. Irby but requested that Mr. Irby contact the District Attorney's Office at his earliest convenience.
4. On or about May 1, 2009, the undersigned (Patrick Beasley) received a phone call from Lisa Binder (formerly Milner), Esquire. Ms. Binder stated that she represents Mr. Irby in this matter and requested that the State not speak with Mr. Irby until she had the opportunity to speak with him first and ascertain his medical condition. The undersigned informed Ms. Binder that Mr. Irby was a victim in this matter and as such, the state had an affirmative duty to speak with him. Ms. Binder was also informed that Mr. Irby is a victim and a material witness; consequently, his recollection of the events that led to the collision is crucial in the State's preparation of its case."
Ms. Binder informed Mr. Beasley she would be in Jackson in early June and would discuss the issue of testifying with Mr. Irby. Ms. Binder apparently stated she would not waive her client's medical privilege and was very "cryptic" about her client's "willingness to cooperate." Mr. Beasley states in his motion that this "warrants the State's concern regarding Mr. Irby's medical status. Ms. Binder then claimed on the day she was to speak to her client she had a personal emergency that prevented her from doing so that day. (Is anyone surprised?) Ms. Binder repeated to Mr. Beasley she was not waiving his medical privilege and would contact him later in the week. The motion states Ms. Binder "failed to honor her commitment."
The prosecution claims since Ms. Binder repeatedly insists she will not waiver Mr. Irby's medical privilege, the State has "concerns that Mr. Irby's medical condition may be of a nature that requires immediate action be taken in order to preserve his recollection"... The State fears that unless immediate steps are taken by the Court, this information may be lost due to the severe head trauma and/or other injuries sustained by Mr. Irby....
Here is where the motion gets really good:
"This concern was further warranted when on July 16, 2009, the State received a letter from Ms. Binder, emphasizing the fact that Mr. Irby has "suffered substantial head trauma as a result of the collision..." See Letter from Ms. Lisa Binder, Esquire, dated July 16, 2010. See Exhibit "B". (The letter was not included in the filing as the two exhibits were filed under seal).
It is unclear whether Mr. Irby will be well enough, both mentally and physically to testify at the trial. His memory and recollection of the accident is material to the case at bar, and thus his testimony needs to be taken immediately and preserved for later use at trial..."
State requests that this Court compel the testimony of Stuart M. Irby be served and memorialized under oath as soon as practicable."
Apparently some legal gamesmanship is going on in this case. Mr. Irby hires a lawyer from Nashville (formerly of Jackson) who claims due to his severe injuries to his head, he can't testify. The State calls Ms. Binder's bluff with this motion to compel his testimony while justifying it on the grounds that if his condition is so serious it might get worse, the State needs to get his testimony now. What is interesting is Ms. Binder's attached letter doesn't state that Mr. Irby can't testify, it instead states "he does not want to speak with you." One should ask Ms. Binder if Mr. Irby is unable to testify because of his injuries how he can go to his condo in Destin. In any case, what is clear is the State is telling the Irby's it will call their bluff and raise them one.
It should also be noted that under the Article V, Rule 504 (d) of the Mississippi Rule of Evidence, Stuart Irby is barred from asserting the privilege of spousal immunity from testifying, as his wife is accused of committing a felony against him.
Monday, July 20, 2009
State files motion to compel Stuart Irby's testimony
Subscribe to:
Post Comments (Atom)
56 comments:
Hey Fish, the link isn't working.
Kingfish, cross reference Rule 504 with MCA 13-1-5 regarding competency of a spouse to testify.
See Turner v. State. The rule stands in this case.
Also see Stubbs v. State where it was allowed and the charge was aggravated assault.
I don't have access to those cases while at home, so I'll have to wait until tomorrow to read them...or you or another reader could help me out. Do those cases say that if one spouse is a victim of the crime then it is a "controversy between them" and under 13-1-5 the "victim" spouse can be compelled to testify against the defendant or do they say that if one spouse testifies when the other is a defendant then they cannot assert the 504 privilege?
If one committed a crime against the other, then the privilege is revoked. One of the cases was aggravated assault.
I understand your argument that the privilege cannot be invoked but my point is that there is a broader question of whether the spouse can be forced to testify at all. The 504 privilege is a narrower question of whether a spouse can be forced to testify to confidential communications. The broader question is whether the spouse can be compelled to testify at all - to non-confidential information as well as information covered by the 504 privilege. The broader question of whether a spouse can be compelled to testify at all is answered by MCA 13-1-5. Under the facts here, I think 13-1-5 says that the spouse cannot be forced to testify unless both the spouse and the defendant consent to the testimony. On a side note, if the spouse did testify, despite the fact that said spouse did not have to testify, then yes the 504 privilege is irrelevant and the spouse must testify to confidential communications based on the law you have cited. I would ask your readers (NMC, Ipseblogit guys) who regularly practice in criminal litigation to comment because I think I'm right but I am by no means an expert - I don't practice in litigation. With that said, I will read your cases tomorrow and if they change my opinion I will post my retraction and mea culpa. If not, I will email you (which I should have done from the getgo) to try and clarify what I am trying to say.
This also overwhelmingly confirms Karen's assault against Stuart.
5:00 AM
Are you saying "Poor Stuart, was the victim in this relationship"? Not from some of the things I saw.
"5:00 AM
Are you saying "Poor Stuart, was the victim in this relationship"? Not from some of the things I saw."
Not at all. I'm just saying by him stating traumatic injury, she is pretty much nailed for the assault, if they back it up with medical evidence. I mentioned it as one consequence of this "defense". Not quite what a loving husband would do.
Look, who gives a crap about the drama between Stuart and Karen in their past and stick to the facts of the case. I find it very interesting to hear that by claiming "substantial head trauma as a result of the collision" Mr. Irby is all but condemning his wife on that charge. If that is all they need for that particular charge, what, oh what, do they need his testimony for beyond the Ag Assault charge? Those are the questions we need to be contemplating. That the DA would be trying to force this now makes you wonder what game playing is really going on with respect to guilty plea v. conviction.
My understanding of aggravated assault is that what matters is not the extent of the injuries but what was used to carry out the assault. Thus the issue was whether the car was a weapon and I think the jurisprudence on that issue is that it can be considered to be one.
1. The prosecutors have to ask
S. Irby to tell them what he knows.
2. He has a lawyer hired to represent his interest and to officially communicate for him.
Interesting drama for sure, between the prosecutors and S.Irby. Also, setting up the drama between K. Irby and
S. Irby.
If I had to guess , I would say S.Irby will never testify any useable information. K. Irby defense will not implicate S Irby
as partial cause of the accident.
I still think her best defense would be to say that she looked over and saw S.Irby
unconscious and was trying to rush him to the emergency room.
Someone should check with an, exvp of irby, he has spent alot of time with Mr. Irby, Mr Irby has not recovered from his head injury. he remains a little fuzzy.
KF, this is a great opportunity for precedent. A defense lawyer would NEVER be allowed to take depositions of unfriendly witnesses to "preserve their testimony." Since the DA rarely loses this type of motion, this will be precedent for defense depositions in future cases.
But how is Stuart on the defense? Has he be charged with ANYTHING Jim?
Not to overlook the obvious. Anyone that knows about Severe Traumatic Brain Injury will tell you that the victim is left with no recollection of the accident or the events preceding the accident. He is not just refusing, he does not know nor will he know for years to come, if ever... He just needs to let his MD cover this with a statement..
Who says he doesn't remember before. We know he doesn't know after.
I would hate to be in that house with all the tension. Could ignite more domestic abuse charges being filed. She might run over him with her wheel chair or hit him with her cane.
I'll bet Stu hankers for those glory days when he could hang with his buddy pounding back some beers then, later, bang his wife.
I am pretty sure the JCC Camera footage will help refresh his memory.
I should have said typically does not remember events that occur immediately preceding the accident.
No footage in the world will help that. They merely know that is there car. Typically speaking of course.
Regardless if this is the case for Mr. Irby, I can tell you, as someone who has/does experience similar memory lapses, that many things appear in the present as though it's something you watched on TV or what your brain has conjured up after someone told you about the events.
Your brain will try to fill in the blanks trying to make things connect and it "seems" like a memory but "feels" like a movie or something you've seen, but not necessarily experienced. Sometimes when confronted with trying to remember something, I'll "remember" based on what I think I would do and feel fairly confindent that it's accurate only to be shown I'm wrong by several different sources.
It gets difficult to rely on your memory as it's more like recalling something you watched on TV versus something you actually experienced and the details get lost.
Stu would rather pound back Jack Daniels or a good Cab and smoke cigars.... Not much of a beer drinker unless boating or riding a Harley.
I believe it was noted in the court record that Stu was pounding back beers before mounting Mrs. Ware.
9:53 -I just spewed Diet Coke on the keyboard and screen of my laptop. Thanks for my biggest laugh of the day!
Money, money, mooneyyyyy..... need I say anymore!It covers up alot of jerks!
What is the Mr. Ware's first name?
King
Why have those records not appeared on JJ ??
So... where are Stu and Billy now??
Well, if you are to believe Beasley, it is unlikely that Stu is partying with friends then hanging 'round to service their wives.
Money is the root of all evil...
Money buys you stuff, but it can't make you happy or healthy. Just ask Stuart and Billy.
All right you knuckleheads, I took some of those down because they were starting to discuss other people in a um, negative way that has nothing to do with the thrust of this case as Justice Berger would say.
And I'm still laughing for what its worth. One of them was actually pretty good.
KF, just wondering... Did anyone ever give an explanation as to why Dr. Lisa D. Williams of Jackson and Kirk McDaniel of Ridgeland were subpoenaed this month to appear in court when the Karen Irby trial begins in March 2010?
King,
As long as we stick to the truth...
let them remain.. If it brings shame, who do they have to thank?
How is the public record of Ware v. Ware off-limits? Hate to think that we need an alt-JJ blog to get out all the truth.
Were do you go on line to read Ware v Ware?
Here you go: http://tinyurl.com/n5oaz9
And there's nothing wrong with saying FS is married to Billy Ware! Just wondered why - she's way too good for him.
FS??? more info please.
Billy Ware's wife is Frances (formerly Stewart). Her third marriage.
Back to the Irbys. Be sure to read the latest article on Ispe Blogit about the MS Court of Appeals yesterday affirming a life sentence for a depraved-heart murder conviction.
Sorry. Meant to say Patti and Karen had/have bible studies together.
Stuart and Karen will divorce, too. It is only a matter of time. You would have a hard time convincing me the Irby family really cares if she goes to jail or not. I suspect they don't at all.
They didn't want him to marry her in the first place. Bet they were praying that the DNA test came back negative. Brother Charles knew about Karen and about her craziness along with other family members (Stu's kids) and family friends. They all knew. But, once the test came back the choice was made.
here is the deal. I haven't pushed the Ware case much because one of them has teenagers in school and I don't want some punk who didn't get a date trashing one of the kids because of something found on my site that had nothing to do with the post itself.
If its public record, I'm probably leaving it up but I took the last couple down because they were straying from public record AND the point of the post, the motion itself, a little too much. I think I have done a better job than anyone else in town in keeping this story straight and I plan on things staying that way. I've been tough on the Irbys but I've also taken up or corrected the record when other media outlets like the CL got it wrong as well. I've also made a serious effort to keep it from imitating the CL forums and one reason most of you like to read this blog is because it is NOT the Clarion-Ledger.
This isn't going away for quite a while and as more happens we are going to discuss many of these things again.
I don't know if Patti has kids or not, I know for a fact Billy Ware has two grown daughters who have long ago left Jackson and live far away. If he is the one you are referring to who has a teenagers who are incorrect.
Hey KF...keep the discussion to the filings. You do yourself an incredible injustice by doing anything otherwise. You have a good thing here.
WOW! Just read the Ware vs. Ware- this is some crazy shizz going on over here in Northeast Jxn!
Maybe these folks need a REAL job to keep them busy.
After reading the Turner and Stubbs cases referenced above, I agree that since he is the "victim" under the assault charge, he can be compelled to testify. Thanks for pointing me in the right direction and clearing it up.
July 22, 2009 5:17 PM: Actually it's the LOVE of money is the root of all evil.....and boy do some of those gold diggers love that money.
It was starting to sound like the Clarion Ledger comment section for a while.
Post a Comment