Lisa Binder, Stuart M. Irby's attorney, filed a response last week to the State's motion to compel testimony. Patrick Beasley, the Hinds County prosecutor, claimed in his motion Mr. Irby was a material witness, Ms. Binder said he had extensive medical injuries and could not talk to them, and the State states a need to obtain his testimony in case his condition deteriorated. Copy of Response to Motion
Ms. Binder's used very strong language and made some serious accusations in her filing:
"Mr. Irby is still in the process of recovery from traumatic brain injuries suffered in the collision. (Notice she doesn't use the word "accident".)..... The State apparently obtained Mr. Irby's medical records through post-indictment measures. Not only did the State obtain such records through post-indictment it apparently disseminated (emphasis added by Binder, hereafter emphasis added by me) without any authority or agreement from Mr. Irby or order of this court. The District Attorney's office did not deliver a copy of those medical records to counsel for Mr. Irby until after it filed the Motion, which was months after the State's receipt of them. By filing the Motion and Counsel's letter without seal, the State interjected confidential information regarding Mr. Irby's medical condition into these public proceedings, which ultimately, as could be reasonably anticipated, ended up published to the world. This conduct of the District Attorney's office is in contradiction to Mr. Irby's rights, the Mississippi Constitution, and HIPAA regulations...."
The District Attorney's office is clearly under pressure in this matter but it has crossed the line into overzealousness at the least. It has obtained and disseminated medical records post-indictment in a matter contrary to Mr. Irby's right to privacy, Federal Law, and HIPAA regulations.......
Wherefore, premises considered, counsel for Stuart Irby prays for a dismissal of the State's motion, and further prays for guidance of this Court with reference to the issues raised herein, including the State's use of post-indictment measures to procure medical records and the dissemination of medical records and/or information regarding Mr. Irby's medical condition without the order of this court."
After reading both motions one wonders if Ms. Binder is a drama queen or a brilliant attorney playing a hidden card. I suspect drama queen in this case because her answer overlooks one very important and highly relevant fact: the State filed Mr. Irby's medical records under seal! His records were never "disseminated" to the public, to quote Ms. Binder. The State refers to them as "Exhibit A" in its motion. However, there is NO "Exhibit A" in the motion filed in the Circuit Clerk's office. The reason for this is it was filed under seal with the court and is thus NOT available to the public. It appears the State made every effort to respect Mr. Irby's medical privacy and did not "disseminate" his medical records to the public.
This is a frivolous objection and Judge Green should treat it as such. Considering Mr. Irby is the victim in this case and the State is actually his lawyer, it has certain rights in regards to his medical records. Ms. Binder knows this all too well as for years she was known as one of the better attorneys in Jackson. If I was Mr. Irby, I would seriously debate whether I should pay Ms. Binder her fee for writing this motion as it's obvious she didn't do her basic research and is making false allegations in her answer that breach her duty to the court.
Note: It should also be observed that Ms. Binder, who now lives in Nashville, was one of the better divorce attorneys in Jackson as well as being a tough litigator.
Sunday, August 2, 2009
Irby Attorney Replies to Prosecutor's Motion. The Drama Heats Up.
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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.
Wrestling returns, except this time it will be a Battle Royal with Othor Cain, Ben Allen, Kim Wade, Haley Fisackerly, Alan Lange, and “Big Cat” Donna Ladd all in the ring at the same time. The Battle Royal will be in a steel cage, no time limit, no referee, and the losers must leave town. Marshand Crisler will be the honorary referee (as it gives him a title without actually having to do anything).
Meet KIM Waaaaaade at the Entergy Tent. For five pesos, Kim will sell you a chance to win a deed to a crack house on Ridgeway Street stuffed in the Howard Industries pinata. Don't worry if the pinata is beaten to shreds, as Mr. Wade has Jose, Emmanuel, and Carlos, all illegal immigrants, available as replacements for the it. Upon leaving the Entergy tent, fig leaves will be available in case Entergy literally takes everything you have as part of its Trollfest ticket price adjustment charge.
Donna Ladd of The Jackson Free Press will give several classes on learning how to write. Smearing, writing without factchecking, and reporting only one side of a story will be covered. A donation to pay their taxes will be accepted and she will be signing copies of their former federal tax liens. Ms. Ladd will give a dramatic reading of her two award-winning essays (They received The Jackson Free Press "Best Of" awards.) "Why everything is always about me" and "Why I cover murders better than anyone else in Jackson".
In the spirit of helping those who are less fortunate, Trollfest '09 adopts a cause for which a portion of the proceeds and donations will be donated: Keeping Frank Melton in his home. The “Keep Frank Melton From Being Homeless” booth will sell chances for five dollars to pin the tail on the jackass. John Reeves has graciously volunteered to be the jackass for this honorable excursion into saving Frank's ass. What's an ass between two friends after all? If Mr. Reeves is unable to um, perform, Speaker Billy McCoy has also volunteered as when the word “jackass” was mentioned he immediately ran as fast as he could to sign up.
In order to help clean up the legal profession, Adam Kilgore of the Mississippi Bar will be giving away free, round-trip plane tickets to the North Pole where they keep their bar complaint forms (which are NOT available online). If you don't want to go to the North Pole, you can enjoy Brant Brantley's (of the Mississippi Commission on Judicial Performance) free guided tours of the quicksand field over by High Street where all complaints against judges disappear. If for some reason you are unable to control yourself, never fear; Judge Houston Patton will operate his jail where no lawyers are needed or allowed as you just sit there for minutes... hours.... months...years until he decides he is tired of you sitting in his jail. Do not think Judge Patton is a bad judge however as he plans to serve free Mad Dog 20/20 to all inmates.
Trollfest '09 is a pet-friendly event as well. Feel free to bring your dog with you and do not worry if your pet gets hungry, as employees of the Jackson Zoo will be on hand to provide some of their animals as food when it gets to be feeding time for your little loved one.
Relax at the Fox News Tent. Since there are only three blonde reporters in Jackson (being blonde is a requirement for working at Fox News), Megan and Kathryn from WAPT and Wendy from WLBT will be on loan to Fox. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both and a torn-up Obama yard sign will entitle you to free drinks served by Megan, Wendy, and Kathryn. Get your tickets now. Since this is an event for trolls, no ID is required. Just bring the hate. Bring the family, Trollfest '09 is for EVERYONE!!!
This is definitely a Beaver production.
Note: Security provided by INS.
Wrestling returns, except this time it will be a Battle Royal with Othor Cain, Ben Allen, Kim Wade, Haley Fisackerly, Alan Lange, and “Big Cat” Donna Ladd all in the ring at the same time. The Battle Royal will be in a steel cage, no time limit, no referee, and the losers must leave town. Marshand Crisler will be the honorary referee (as it gives him a title without actually having to do anything).
Meet KIM Waaaaaade at the Entergy Tent. For five pesos, Kim will sell you a chance to win a deed to a crack house on Ridgeway Street stuffed in the Howard Industries pinata. Don't worry if the pinata is beaten to shreds, as Mr. Wade has Jose, Emmanuel, and Carlos, all illegal immigrants, available as replacements for the it. Upon leaving the Entergy tent, fig leaves will be available in case Entergy literally takes everything you have as part of its Trollfest ticket price adjustment charge.
Donna Ladd of The Jackson Free Press will give several classes on learning how to write. Smearing, writing without factchecking, and reporting only one side of a story will be covered. A donation to pay their taxes will be accepted and she will be signing copies of their former federal tax liens. Ms. Ladd will give a dramatic reading of her two award-winning essays (They received The Jackson Free Press "Best Of" awards.) "Why everything is always about me" and "Why I cover murders better than anyone else in Jackson".
In the spirit of helping those who are less fortunate, Trollfest '09 adopts a cause for which a portion of the proceeds and donations will be donated: Keeping Frank Melton in his home. The “Keep Frank Melton From Being Homeless” booth will sell chances for five dollars to pin the tail on the jackass. John Reeves has graciously volunteered to be the jackass for this honorable excursion into saving Frank's ass. What's an ass between two friends after all? If Mr. Reeves is unable to um, perform, Speaker Billy McCoy has also volunteered as when the word “jackass” was mentioned he immediately ran as fast as he could to sign up.
In order to help clean up the legal profession, Adam Kilgore of the Mississippi Bar will be giving away free, round-trip plane tickets to the North Pole where they keep their bar complaint forms (which are NOT available online). If you don't want to go to the North Pole, you can enjoy Brant Brantley's (of the Mississippi Commission on Judicial Performance) free guided tours of the quicksand field over by High Street where all complaints against judges disappear. If for some reason you are unable to control yourself, never fear; Judge Houston Patton will operate his jail where no lawyers are needed or allowed as you just sit there for minutes... hours.... months...years until he decides he is tired of you sitting in his jail. Do not think Judge Patton is a bad judge however as he plans to serve free Mad Dog 20/20 to all inmates.
Trollfest '09 is a pet-friendly event as well. Feel free to bring your dog with you and do not worry if your pet gets hungry, as employees of the Jackson Zoo will be on hand to provide some of their animals as food when it gets to be feeding time for your little loved one.
Relax at the Fox News Tent. Since there are only three blonde reporters in Jackson (being blonde is a requirement for working at Fox News), Megan and Kathryn from WAPT and Wendy from WLBT will be on loan to Fox. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both and a torn-up Obama yard sign will entitle you to free drinks served by Megan, Wendy, and Kathryn. Get your tickets now. Since this is an event for trolls, no ID is required. Just bring the hate. Bring the family, Trollfest '09 is for EVERYONE!!!
This is definitely a Beaver production.
Note: Security provided by INS.
Trollfest '07
Jackson Jambalaya is the home of Trollfest '07. Catch this great event which promises to leave NE Jackson & Fondren in flames. Sonjay Poontang and his band headline the night with a special steel cage, no time limit "loser must leave town" bout between Alan Lange and "Big Cat"Donna Ladd following afterwards. Kamikaze will perform his new song F*** Bush, he's still a _____. Did I mention there was no referee? Dr. Heddy Matthias and Lori Gregory will face off in the undercard dueling with dangling participles and other um, devices. Robbie Bell will perform Her two latest songs: My Best Friends are in the Media and Mama's, Don't Let Your Babies Grow up to be George Bell. Sid Salter of The Clarion-Ledger will host "Pin the Tail on the Trial Lawyer", sponsored by State Farm.
There will be a hugging booth where in exchange for your young son, Frank Melton will give you a loooong hug. Trollfest will have a dunking booth where Muhammed the terrorist will curse you to Allah as you try to hit a target that will drop him into a vat of pig grease. However, in the true spirit of Separate But Equal, Don Imus and someone from NE Jackson will also sit in the dunking booth for an equal amount of time. Tom Head will give a reading for two hours on why he can't figure out who the hell he is. Cliff Cargill will give lessons with his .80 caliber desert eagle, using Frank Melton photos as targets. Tackleberry will be on hand for an autograph session. KIM Waaaaaade will be passing out free titles and deeds to crackhouses formerly owned by The Wood Street Players.
If you get tired come relax at the Fox News Tent. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both will entitle you to free drinks.Get your tickets now. Since this is an event for trolls, no ID is required, just bring the hate. Bring the family, Trollfest '07 is for EVERYONE!!!
This is definitely a Beaver production.
Note: Security provided by INS.
There will be a hugging booth where in exchange for your young son, Frank Melton will give you a loooong hug. Trollfest will have a dunking booth where Muhammed the terrorist will curse you to Allah as you try to hit a target that will drop him into a vat of pig grease. However, in the true spirit of Separate But Equal, Don Imus and someone from NE Jackson will also sit in the dunking booth for an equal amount of time. Tom Head will give a reading for two hours on why he can't figure out who the hell he is. Cliff Cargill will give lessons with his .80 caliber desert eagle, using Frank Melton photos as targets. Tackleberry will be on hand for an autograph session. KIM Waaaaaade will be passing out free titles and deeds to crackhouses formerly owned by The Wood Street Players.
If you get tired come relax at the Fox News Tent. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both will entitle you to free drinks.Get your tickets now. Since this is an event for trolls, no ID is required, just bring the hate. Bring the family, Trollfest '07 is for EVERYONE!!!
This is definitely a Beaver production.
Note: Security provided by INS.
41 comments:
Jimmie Gates of the CL wrote about this but apparently left out the fact the medical records were filed under seal.
Funny. It is almost as if Binder is arguing that the DA's office is only pursuing this case because of some nebulous pressure. As if there is no basis for the prosecution or that the matter is a minor issue.
Whole thing was under seal. There is no exhibit A in the file and the entire motion was not in file when I looked last week. The public never had access to any medical records of Mr. Irby.
Medical Records may be released without consent of a patient for:
1. Federal, State or Local Law. We may use and release your health information when required by law.
2. Government Agencies and Law Enforcement. We may release your health information to government agencies and law enforcement.
Please see UMC's HIPAA Policy:
http://umhc.com/oth/Page.asp?PageID=OTH000200
That was hillarious. I have seen attorney's throw HIPPA around before and it is always a threat, no teeth. Check out what a covered entity is; then understand once in the public domain (via Grand Jury), information is public. I really believe she is simply puffing, blowing smoke. A chilling effect? She is going to chill the courts patience with this grandstanding. Poor attorneys always find ways to deceive, great attorneys would simply find a middle ground that meets everyone's interest. This is not zealous representation, it is tomfoolery and should be admonished by the court.
Yep. HIPPA is not very well understood by a lot of people, including attorney's with no experience with it. Reminds of the ole saying when someone doesn't like something, "It ought to be against the law."
I think Green should sanction Binder.
I'm sure the ethics board at the Bar might want to review these allegations.
HIPPA is not well understand but the phrase about law enforcement is in every HIPPA form I've signed.
HIPAA is very well documented. Covered entity is very specific. So are the law enforcement usages.
I should qualify what I wrote as its a shame she can't be sanctioned. My understanding is there is nothing similar to Rule 11 in criminal cases.
Ms. Binder ought to be embarrassed to try this one.
According to her logic, a bank employee could be shot by a bank robber and the State couldn't prove the shot hit the target or a crime happened unless the victim agrees to release their medical records and be interviewed? Or a parent can rape their child and then claim medical proof of the rape falls under medical privacy and can prevent the child from being interviewed because a lawyer hired by the family says the child doesn't want to do that?
Let's face it, if Stuart is that bad off, he isn't competent to instruct Ms Binder on his wishes. If he isn't that bad off, he's fit to be interviewed.
Ms. Binder must have zero respect for Judge Green to trot this out. Let's hope Judge Green isn't as dumb as Ms Binder seems to think.
Ibid. 5:29
Kingfish
Why doesn't someone ask Matt Steffy for his professional legal opinion since he is who the TV relies on for "expert" opinion. Every time the idiot opens his mouth my degree from MC La gets devalued !!!!!!!!!!!!!!! They hid him in the closet when I was there......
Neal & Harwell is a one heckuva law firm. Do a little research on Ms. Irby's partners.
5:29 Exactly. "if Stuart is that bad off, he isn't competent to instruct Ms Binder on his wishes. If he isn't that bad off, he's fit to be interviewed." Obviously the DA has sources, too, who are telling them Stuart is able to be interviewed.
He is a joke of a commentator. He's not a practicing lawyer, practiced for a little while fresh out of law school in Florida, yet he is supposedly an "expert". He taught criminal law at MC because they needed someone to teach it as the other professor left so they dumped it on him. He's no criminal law expert at all.
Lisa Binder is a good attorney. I have never known her to be a drama queen. It may be a maneuver, but not because she is a drama queen. She can be tough. Drama (unless it's a technique) is just not her style. FYI - especially for those of you not originally from Jackson, her father was Alvin Binder. He was a great criminal defense attorney. He fought the KKK, defended Wayne Williams - and Jason Robards portrayed him in the movie!
I know. Truth be told, I was somewhat surprised by the motion as she either didn't do her basic research or just plain lied in her response as the medical records were sealed. I'm wondering if the junior associate or clerk didn't write it and she signed it. I've seen her work miracles before so I didn't expect to write this post.
I am just a little bit perplexed as to why they selected Lisa. A great attorney (typically), but is she the right attorney for this type of case? I find it odd.
Ok. The DA wants to interview Stuart Irby. His lawyer says he can't be interviewed. What happens next? Isn't he just going to say he doesn't remember anything anyway?
Isn't he just going to say he doesn't remember anything anyway?
That would be fine. Then he can't massage the truth in Karen's defense.
7:51: That is fine but make him say it.
I'm at a loss to understand why it's important to avoid having Stuart interviewed.
And, if Stuart is brain damaged, he can hardly be running this or shouldn't be.
Are family assets at risk in such a way as to prevent cutting Karen loose?
I would have thought arguing pre-nup ( surely there was one and pre-marital assets were protected), his status as a victim, and that he'd filed ( even though no follow through) for a divorce would be better than this. Are such measures useless in wrongful death civil suits?
This strategy makes it appear Stuart has something to hide rather than appear a victim as well.
Of course, as you pointed out, KF, the medical information is sealed. The ONLY medical information available on Stuart's OR Karen's injuries is from the Caringbridge information posted by Stuart's brother or what the family has chosen to share.
Do Karen and Stuart have common legal representation?
This strategy makes it appear Stuart has something to hide rather than appear a victim as well.
He does. Ask the former JPD Chief, a.k.a. Sheriff Campaign Contribution, about the secret of what happened that night before the depraved heart murder.
well, spill the beans!!!
9:44 - Please don't throw out a comment like and leave us all hangin'!
I think there is a real possibility that s. irby and k. irby become adversaries in this.
K. Irby attorney alluded to her innocence and suggested the accident was unavoidable. That brings up the possibility that K.irby accuses S.Irby as doing something to cause the accident.
One of the laws of gravity, relating to money... the legal process gravitates towards the deep pockets.
In this respect, it makes perfect sense why S.Irby wouldn't want to make any statement at this time.
With respect to Ms. Milner, this whole Stuart interview issue was botched from the beginning.
Any witness has the right to not talk to either side in a criminal case (unless compelled by subpoena to testify at a hearing or trial). Rather than claim that Stuart's medical condition prevented him from speaking with investigators, the response should have been something like this:
"Dear Mr. Prosecutor: Please be advised that Mr. Irby is exercising his right not to speak with the prosecution. Thank you."
That would have been the end of the matter. However, when Stuart's counsel made his medical condition and capacity an issue, she gave the prosecution an argument that his testimony may not be available for trial and needed to be immediately preserved.
The effect of this is that the State is going to get a "free" deposition, likely under oath, that it would not have been entitled to otherwise.
Using the medical condition as an explanation why he couldn't be interviewed was a tactical blunder, and absolutely unnecessary. As far as tactical blunders go, this one is cast iron, and could have a devastating impact on the defense.
Lisa Binder doesn't use Milner since her divorce - just an FYI to previous poster.
Actually to correct 8:54, Lisa was divorced from Wayne Milner for YEARS. She only changed her name back to Binder when she remarried and moved to Nashville. She did not change her name when she divorced.
What happened the night before the accident???? If you think Stuart's close friend, the Sheriff, is going to tell us......you must be crazy.
How do you know about this situation that referring to?
There are many things we don't know about Stuart and officials in Hinds County. Like....who took Stuart home after the domestic violence charges on his birthday in 2008?
KF,
Overall, really good analysis here. Just an aside, however, the State of Mississippi is not Mr. Irby's lawyer. The lawyer/client relationship is based on a fiduciary relationship, and there's nothing like that here.
No apparent authority or agency relationship exists.
Not really an important thing for me to point out, just my legal nerdiness shining through.
It pays to be a Friend of Frank.
As for the privilege, the state is representing Mr. Irby as he is the victim and several attorneys have confirmed to me that is the case.
On foxnews.com it is already reported that the Mom who killed several of her children and nephews by going the wrong way on the interstate in New York- was DRUNK. Accident Date- July 26th- Today's Date- Aug. 4th! Amazing how quickly this was released!
She obviously didn't contribute copious amounts of cash to the requisite local politico's campaign coffers.
KF,
Your friends who are lawyers are wrong. This is not a privilege issue. Privilege exists for private communications between attorney and client.
The State of Mississippi does NOT represent Mr. Irby. He is a victim of a crime... notice I didn't say "alleged." It's pretty clear.
I'm just trying to clear up a common misconception.
Since he is a victim of the crime charged, Justin, doesn't the state have the compelling interest here?
Couldn't one argue that when the state has evidence a felony occurred and the victim then fails to cooperate in the prosecution of that crime , the victim is, for all intents and purposes, obstructing justice?
If such can't be argued, it should be as it seems to me that is exactly what is being attempted.
After all , if Stuart is unable to give an account of the events, what's the concern?
It doesn't take much imagination to suppose the answer.
The State totally has a compelling interest here, as do all citizens. It's just not representing him.
Regarding the obstructing justice comment... I'm not up to snuff on my obstructing justice statutes or my marital competence (note: not privilege) rule to make an informed guess.
well, does the state represent us?
The royal 'WE' in their charges
against Ms Irby. Doesnt S Irby fit into the 'we' category?
not in that sense, no.
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