Wednesday, August 5, 2009

Green Orders Irby to Submit to Interview, Imposes Gag Order, Announces February "Omnibus Hearing"

It was a dark day outside in Jackson as storm clouds gathered today inside Judge Tomie Green's courtroom. Dark was the weather, dark was the demeanor of the attorneys, dark were the suits. Two sides sparring in opposing motions, one seeking the testimony of a material witness and the other using every trick possible to frustrate the prosecution.

A young Patrick Beasley, the attorney for the State, is alone in the courtroom. No clerks or paralegals sit by the former MBN agent, only the cold spirit of Justice is at his side, but justice is often like that: a lonely battle for those who serve her cause. Facing Mr. Beasley is the Irby horde: Joe Holloman (Mrs. Irby's attorney), Lisa Binder (representing Mr. Irby), and their two goons (private investigators) wearing their Goodfellas suits: Charley and Will (a former JPD cop with Rudi Warnock-like hair). Mrs. Irby was not in the courtroom as Holloman told the court she waived her right to be present. The media is on hand. A golden Marsha Thompson is the lady of the Court as both WLBT and WAPT have cameras present, while local blogger Matt Eichelberger sits on the last row.

Ms. Binder sits at counsel's table with Mr. Holloman. Judge Green sets the tone early, ordering her to move to the front row of the audience. Judge Green is in command of the courtroom as she repeatedly takes control of the hearing. Ms. Binder attempts to state what the issues of the case are but gets no further as Judge Green cuts her off, asking her to provide a medical statement showing why Mr. Irby cannot testify. The Judge reminds the esteemed counsel Mr. Irby is a witness, thus implying there is a need for his testimony. Ms. Binder is caught off-guard, telling the Court she has no written statement to provide but states a Dr. Clea Evans (a "neuropsychologist") is available for testimony if needed today. This correspondent was baffled by the lawyer's failure to bring such statements to court as her client's medical condition was a major point of contention between the parties.

Judge Green decreed Mr. Irby should be available to the prosecution for a thirty-minute interview on September 16, 2009 and gives Ms. Binder the rest of the month to provide a written medical statement stating why Mr. Irby cannot give the interview or any limitations that should be placed on the interview. Binder instantly claims that date will not work as she has to be somewhere else but Green is having none of it, reminding the lawyer the Court is working off of the dates she said she was available. Ms. Binder goes to her corner, gets her Blackberry, and suddenly discovers it was October 16 that had a conflict. The interview is thus placed on the calendar.

Judge Green is not finished as she addresses the standing issue raised by Mr. Beasley. The Court tells Ms. Binder she can "be present at interview, but may not participate" - she can give no advice nor make any objections during the interview although Mr. Holloman can participate as Mrs. Irby's counsel.

Binder struggles on, trying to tag the prosecution with something as Foreman's blows merely slide off of Ali. Binder claims Mississippi case law (and states there are "sister cases in this very courthouse") that allow a witness to refuse to testify. Green calls her bluff and asks her to name a Mississippi Supreme Court case on this issue. Binder continues to look unprepared as she is unable to cite such a case. Binder tries again but Green parries her arguments as she keeps asking counsel for Mississippi case law, something Ms. Binder does not provide. Undaunted, Ms. Binder shuffles forward, still trying to hit her opponent with something. She raises the issue of the state subpoenaing Mr. Irby's medical records after the Grand Jury proceeding. Green shrugs it off, reminding counsel "the state needs medical records for proving the charge of aggravated assault" and makes it clear the prosecution will be given access to the medical records of Stuart M. Irby, Sr. if it determines they are needed to prosecute the case against Karen Irby. Beasley has been quiet so far as Binder continues to spar with Judge Green.

Green then states she is laying "ground rules for the case". Green invokes Rule 9.01, the infamous "gag order" in an effort to limit pretrial publicity and says the Court will "strictly enforce that rule." She also orders both sides to submit all motions to her and that she must approve each one before it can appear in the open file with the Circuit Clerk. Judge Green then invokes Rule 9.08 and decrees an "Ominbus hearing" will be held on February 15, 2010, for the adjudication of all pretrial issues. Green shows every intention of trying this case in March and made it quite clear she is in charge. A quietly satisfied Beasley leaves the courtroom, winning a round in what promises to be a hard fought legal battle while the defense teams wears their iron masks.


Anonymous said...

WOW Kingfish ! That is some exciting courtroom drama. Great
job reporting.....

Anonymous said...

Great job reporting - thank you so much!

Anonymous said...

Judge Green is acting like a judge. Someone check her ID...could be someone else under that robe.

Anonymous said...


Ms. Binder files letter re: SI's health, obviously will state not able to be interviewed.

More than likely will be rejected. Remember, the State already has the med files and pretty much knows his condition and ability to testify.

Ms. Binder files last minute postponement.

It will have to be on behalf of SI b/c Ms. Binder is no longer a party to the case..."be present at interview, but may not participate." Unless matter of life and death, postponement will *hopefully* not occur.

I think the state will have their day with SI on 9/16. It will be interesting to see what happens between now and then.

Got to wonder what is Mr. Holloman is thinking...

And Green did take a pretty firm grasp of the case. Great job your honor. In the spirit of fairness, justice, it is the best thing that could have happened for ALL involved.

Anonymous said...

If I was Beasley what I would do is conduct the interview in a conference room with a big picture window that provides a view to the outside. Then I would make sure to arrange for a hot buxom babe with ample cleavage to walk back and forth in front of that window while the interview is taking place.

Do that and you'll figure out in a big hurry Stuart's "condition".

Anonymous said...

Kingfish, you are the best. This article is as good as gets for those of us not at the hearing today. Thank you.

Go Judge Green!

stilettoGOP said...

Wow, why read vanilla news when you can have it neopolitan?

obviously VERY detailed notes were taken on your field trip today, Mr. Kingfish.. A+

Anonymous said...

What about the rule where a person doesn't have to testify against their spouse?

Anonymous said...

Great writing, Kingfish - thank you. As for Judge Green, she's been given a bad wrap for far too long. Believe the latest uncovering on misjustice among justice may reveal Judge Green to be a hero among those still wearing the robe.

Anonymous said...

Just tuned into WLBT for the 6pm news. First time I've heard it promo'd as the "Irby Murder Case" in the media.

Anonymous said...

Alright, here's some home work.

Start with Rule 501....

Except as otherwise provided by the United States Constitution, the State Constitution,
by these rules, or by other rules applicable in the courts of this state to which these rules
apply, no person has a privilege to:
(1) Refuse to be a witness;
(2) Refuse to disclose any matter;
(3) Refuse to produce any object or writing; or
(4) Prevent another from being a witness or disclosing any matter or producing any
object or writing

Then jump to Rule 504...

(a) Definition. A communication is confidential if it is made privately by any person
to that person’s spouse and is not intended for disclosure to any other person.
(b) General Rule of Privilege. In any proceeding, civil or criminal, a person has a
privilege to prevent that person’s spouse, or former spouse, from testifying as to any
confidential communication between that person and that person’s spouse.
(c) Who May Claim the Privilege. The privilege may be claimed by either spouse in
that spouse’s right or on behalf of the other.
(d) Exceptions. There is no privilege under this rule in civil actions between the
spouses or in a proceeding in which one spouse is charged with a crime against (1) the person
of any minor child or (2) the person or property of (i) the other spouse, (ii) a person residing
in the household of either spouse, or (iii) a third person committed in the course of
committing a crime against any of the persons described in (d)(1), or (2) of this rule.

Finally, here is Rule 601...

Every person is competent to be a witness except as restricted by the following:
(a) In all instances where one spouse is a party litigant the other spouse shall not be
competent as a witness without the consent of both, except as provided in Rule 601(a)(1) or
Rule 601(a)(2):
(1) Husbands and wives may be introduced by each other in all cases, civil or
criminal, and shall be competent witnesses in their own behalf, as against each other,
in all controversies between them;
(2) Either spouse is a competent witness and may be compelled to testify against
the other in any criminal prosecution of either husband or wife for a criminal act against
any child, for contributing to the neglect or delinquency of a child, or desertion or
nonsupport of children under the age of sixteen (16) years, or abandonment of children.
(b) A person appointed by a court as required by state law to make an appraisal in an
eminent domain proceeding for the immediate possession of land shall not be eligible to
testify in the trial of such case, and the report of such court appointed appraiser shall not be
admissible in evidence during such trial.

Someone want to summarize a strategy??? I have one, but instead, put my homework out to the peanut gallery for input.

Me thinks this trial could set precedent.

Anonymous said...

Kingfish - How come Robbie Bell was not forced to give an interview?

She was a material witness that literally drove away from the murder scene (after spending several hours with Heather's bloody corpse on the her floor) fully aware that her son not only murdered my friend but had an active warrant against him for beating her in June.

But, I guess that would be like prosecuting family.

Anonymous said...

I bet if they began treating S. Irby as an accomplice they would get somewhere.

Kingfish said...

Robbie Bell was actually a defendant not a witness. If you read the reports, they say she was mirandarized.

Anonymous said...

also George Bell, III plead guilty in a very short time frame. Makes you wonder if he plead in such a timely manner just to keep Robbie Bell a/k/a mommy out of jail

Kingfish said...

George's testimony in court that day was designed to get Robbie off of the hook. The reason the case wrapped up so quickly is the family had a chance at life without parole and did NOT want to see the reports and photos again. From what I know, you can't imagine how bad the photos are, they are that bad.

Anonymous said...

6:29. Many of us are not lawyers. Just tell us how it is about Stuart Irby being interviewed. His lawyer certainly didn't come up with anything today to keep the judge from ordering Mr. Irby to be available in Sept.

Anonymous said...

Anonymous said...

Kingfish, great post. I thought I was reading a chapter in a Grisham novel. Actually, there should be a book based on this case. Fictionalized, of course. Names changed to protect the innocent and the not-so-innocent.

Kingfish said...

Ok, some of the post was obviously my being colorful. Truth be told, I was somewhat surprised by Ms. Binder's performance. She is a very good lawyer. I've seen her work miracles on cases in the past when she lived her in Jackson. I never thought of her as a criminal lawyer but she might be one after all and I just didn't know it. I want to make one thing clear also after I got an email tonight. I don't have it in for the Irby's nor am I out to get them. I simply have gotten tired of the media getting basic facts wrong. Not fair to families, not fair to Irbys. I've tried to keep things focused on the wreck and things related to it and keep discussion away from exes, past drama, rumors, and other stuff.

Anonymous said...

Anybody sending you email thinking you are carrying a vendetta simply hasn't read JJ long enough to know the difference.

Anonymous said...

While everyone is busy giving a group hug over today, consider that a judge just said you have to get permission to file a MOTION. Exactly how, pray tell, does one even create a record for appeal if you can't even file a motion that forces a judge to make a decision on an issue? Do you have any idea how over-the-top a ruling like that is?

Anonymous said...

The idea of a judge screening motions from being filed is abhorrent and frightening. It may also be illegal.

Anonymous said...

hmmm...doesn't a judge have some discretion when it comes to frivolous motions...too seldom used but there?

Reviewing motions before they are filed in a case doesn't seem the same as preventing them from being filed.

Truth is some lawyers make a living in trying to "paper" cases so as to make them too expensive to try because judges haven't exercised some of the tools available to them.

It's a way to try to get the prosecution to " deal" and the plantiff to " fold" if you have enough money to pay the legal fees and some of us citizens think it's out of hand.

Anonymous said...

Citing state code is fine, but unnecessary and trumped, isn't it? Karen is charged with assaulting Stuart so spousal privilege doesn't apply. It should be no different that in a domestic violence case where the police witness the results of domestic abuse and are no longer restricted in action by the abused spouse's unwillingness to file charges and the abuser can't avail themselves of spousal privilege.
It seems like it's being argued that since Stuart was in a coma for what was, at the time, an unknown duration, the legal system was prevented from proceeding to a grand jury indictment until such time as he recovered enough to testify if they ever expected to question him prior to the trial. It's an argument that intent of the law should be ignored as it was never intended to prevent an injured person from being a witness.
Also, that Stuart is a " material witness" doesn't require his testimony to prove. He was in the car. It seems to me those statutes apply and surely precedent has been set elsewhere.

Anonymous said...

No, she's not just "reviewing" the motions before the are filed. She has to "approve" them before they are on the docket. I can't even imagine how many rules and constitutional violations are probably involved. You have plenty of available remedies for frivolous motions.

Learned Hand said...

Initially, I was a little uneasy about the ruling on motions too. However, I really like the idea after giving it additional thought.

Judge Green is simply requiring the motions to be submitted to her before filing so that she gets to review them before they are put into the open file. With a gag order in place, this gives her a chance to see the wording of motions before they make it to the press.

Why is this important? If you have followed some of the more publicized trials around here recently that have also had gag orders (Melton's trial comes to mind), defense attorneys have been using motion practice to argue their cases in the press. Obviously, this undermines the purpose of the gag order. Knowing that the media will make a story out of every filing, defense attorneys throw in all kinds of statements that are superfluous to the motion in order to get their facts out to the public and, potentially, taint (I mean, "influence") the jury pool. Unfortunately, judges are loathe to impose sanctions on attorneys for this or most other nefarious actions.

It will be interesting to see how Judge Green handles the motions. I can see how a judge could require counsel to reword portions of the motion that are inflammatory without affecting the substance of the motion. However, I am uneasy about a judge exercising editorial privileges over motions. Then again, gag orders are not commonly used and the Jackson defense bar has shown its unwillingness to abide by the spirit of such orders, even if they abide by the letter.

Judge Green's performance yesterday sounded refreshingly competent. With her ruling on motions, I hope she hasn't done something that will constitute a reversible error.

Anonymous said...

I'm curious about " the doctor's note". It's a bit ambiguous. There are the doctors that treated his head injuries whose opinion would be competent and any number of physicians who could have subsequently seen Stuart for , say, a summer cold.
Will any old doctor's note do?
And, if the prosecuter questions the accuracy because of testimony, say, from those who have interacted with Stuart in the past several weeks, do they have recourse to rebut the doctor's report?
Stuart, does, after all , according to his brother on caringbridge , remember how to speak in a foreign language even if one discounts reports of personal encounters.

Kingfish said...

Judge Green isn't approving motions, she is merely deciding what will appear in the file. I don't like it and tend to agree with NMC on this issue but I can appreciate the argument for keeping the lawyers from playing their little games.

Anonymous said...

I interpret Judge Green's decision
as a means to control her court. As was stated eloquently by 8:40 AM, she is preempting
frivolous or time-delay tatics and I applaud her for taking control. Screw the attorneys who have abused the courts in the past because they are the ones who have burdened the process.

Matt Eichelberger said...

Question for you, Learned -

Are you including post-indictment grand jury subpoenas in the category of "most other nefarious actions?"


Learned Hand said...

The answer to your question as asked is "yes."

Nefarious? Absolutely.

Sanctionable? Probably not, unfortunately. I'd like it to be sanctionable because the practice clearly seems to violate the purpose of the rules.

Matt Eichelberger said...

Learned - Thanks for being evenhanded there.

Anonymous said...

Boy I hate to pull rank . . . but when non-lawyers start pontificating how it's no problem for a judge to seal and censure a court record . . . wait, it's more than that, the judge decides what goes into it; it's sorta like a layman opining "I don't see a damn thing wrong with open heart surgery under local anethesia only . . . doctors are always hiking up the cost w/ a lot of unnecessary stuff, money tricks ya know."

Anonymous said...

Since you brought up rank ... how do you feel when lawyers pontificate about non-law stuff as if they are experts?

Anonymous said...

Damn Fish, how did you know they had PI's there?

Kingfish said...

Wasn't too hard to figure out. Aside from Holloman and Beasley, only two guys were in the audience wearing suits and sat on the side of the defense. A couple of reporters recognized them. Its not that big of a deal. I was having some fun with them in that post more than anything. Case like this, you hire a PI if you are the defense. Standard operating procdure. Just two guys doing their job.

Anonymous said...

They probably have you under surveillance KF.

Anonymous said...

I dont get the analogy of our high ranking anonymous lawyer comparing a non-lawyer observing and discussing the judges decision
to a non-MD suggesting open heart surgery using local anesthesia.

Wasn't it Judge Green who made the decision in the first place ?

So, wouldnt the analogy be more accurate if the chief surgeon decided to perform open heart surgery using only local anesthesia?

and isn't 'pontificate' a big word to use for three libes of half baked thoughts?

Anonymous said...

....three lines of half-baked thoughts.

Curt Crowley said...

I think I was wrong when I described this mess as a "tactical blunder" in the previous story. Based upon the outcome of the hearing, it has now become a full-fledged clusterf#*k.

Both Irbys would be well-advised to hire some real criminal defense lawyers--preferably with no MS ties, before this gets totally out of hand for the defense.

Anonymous said...
This comment has been removed by a blog administrator.
Kingfish said...

I'd read Norman Mailer's account of the Rumble in the Jungle before I wrote this post. Inspired me a little.

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