Mississippi Criminal Defense Law Blog

The Economy Continues to Impact Justice

Kevin W Frye — Sun, 31 Jan 2010 14:31:00 GMT

Today the Clarion Ledger writes again about the effect of state budget cuts on the judicial system. The article begins as follows:

As state agencies respond to deep budget cuts, local and state officials are raising concerns about Mississippi's ability to protect the public, prosecute and try cases, and keep criminals behind bars.
The state's chief justice says Mississippi's judicial system is in "financial crisis."
County district attorneys say cuts could stall hundreds of criminal cases across the state.

I have followed this topic with interest for some time, particularly the faulty sentiment that we need to "keep criminals behind bars" in order "to protect the public." Today's article goes on:

Recently, the Republican governor warned that up to 4,000 prisoners could be released "onto civil society" if Democratic House leaders failed to give him authority to make cuts of varying amounts up to 10 percent.

That Barbour talked about setting prisoners free without qualification angered Mary Torrence Carpenter, whose 17-year-old son was murdered nearly three years ago.

The two men who killed Carpenter's son would not have been eligible for early release, but the Morton mother said it was an inappropriate"scare tactic" that failed to consider the feelings of the state's crime victims.

First, Ms. Carpenter is correct that statements like the one above represent an inappropriate scare tactic. Obviously there are a number of factors considered by the Mississippi Department of Corrections prior to granting early release, and persons convicted of violent crimes as in Ms. Carpenter's case simply would not be eligible. Hence the politically motivated scare tactic. Fortunately, the Clarion Ledger ends the article with this:

Barbour said Tuesday he could agree to offset cuts using tobacco settlement funds. But he supported a failed plan pushed by House republicans to earmark $17 million for MDOC and restore little to education.
"What sort of sense does that make to put all of the money into the Department of Corrections to house and incarcerate young children, basically," said Rep. Tyrone Ellis, D-Starkville. "The reason they're being incarcerated is basically because they're not being educated."
If 4,000 convicts were let go early, Mississippi still would have one of the nation's highest incarceration rates, an advocacy group says.
About 750 of every 100,000 Mississippians are behind bars, said Marc Mauer, executive director of The Sentencing Project, a D.C.-based organization engaged in research and advocacy of criminal justice policy.
Minus 4,000 prisoners, that rate would drop to about 600 per 100,000.
"There's not a lot of evidence that shows that keeping someone there five years as opposed to three years will do any type of rehabilitation," Mauer said.

Exactly. There are alternatives to incarceration that provide a greater societal benefit for those convicted of non-violent crimes at a reduced cost - this is recognized by the Mississippi Department of Corrections in this handbook and by the Mississippi judicial system, which has established Drug Court. As I have noted before, there is a significant cost difference between incarceration and available alternative sentencing options. For example, housing an inmate at Parchman costs $45.48 per day, while the Intensive Supervision Program (house arrest) costs just $9.96 per day. Clearly a cost savings of $35.52 perday is substantial. The cost difference between housing an inmate for one year in Parchman versus one year on house arrest? $12,964.80.

Cost aside, alternative sentencing options such as Drug Court, house arrest, pre-trial diversion and other programs are designed to rehabilitate offenders. Not only are they cost effective at present, successful programs can decrease the rate of recidivism (repeat offenders) and reduce future costs as well.

Responsibility for the budget falls to the governor and our other elected representatives. But the fiscal crises in the judicial system is impacted by decisions made every day by local prosecutors, defense attorneys and judges. They too should be accountable for decisions made in plea negotiations and sentencing, and consideration should be given to each person charged with a felony to insure not just that the punishment fits the crime, but that the punishment fits the offender. Too often the judicial system looks at offenders not as individual people, but as the crime they are accused of committing. Those accused of like crimes are given identical plea offers and sentences. In reality, this is an apathetic way to sentence people from a wide variety of backgrounds.

Alternatives to incarceration exist, and they should be considered in every case - the American Bar Association says it well:

A rational criminal justicesystem would—while shortening sentences of certain offenders—keepothers out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely.

We can hope.

I have written previously about the potential effect of the poor economy on the criminal justice system, see Mississippi Bureau of Narcotics & the Economy, Mississippi Department of Corrections, Budget Cuts & Plea Negotiations and DUI Crackdown or Highway Patrol Fundraiser.

Alcohol and Oxford: In the news again

Kevin W Frye — Mon, 18 Jan 2010 13:47:00 GMT

Anyone that lives in Oxford knows that our little town has a love-hate relationship with alcohol. Yesterday, The Oxford Enterprise (Oxford's new Sunday paper) ran three major stories on the alcohol front, two on the front page with the third on page two. Unfortunately, The Enterprise's website is less than up-to-date (I imagine that this is by choice to encourage paying subscribers to the paper). I found the stories interesting, so will hit the highlights below.

The Enterprise reports first on the creation of the Downtown Safety Task Force, a 13-member task force charged with investigating safety issues on the Square. The task force arises from apparent concern over public safety on the Square, which has a growing reputation for late-night violence and drunkenness. The task force has been asked to make recommendations to the Mayor and Board of Aldermen, and has created working groups to study the issues.

Second, The Enterprise reports on a meeting of hospitality operators (restaurateurs) hosted by the Oxford Convention and Visitors Bureau. The two primary topics at the meeting were evidently Sunday alcohol sales and parking on the Square. Mayor Patterson attended, and in response to questions again indicated his opposition to Sunday sales. The Mayor did suggest that he would put a request for Sunday sales to a vote if presented with a petition signed by 1,500 voters.

Finally, The Enterprise reports that DUI fines in Oxford Municipal Court through December 21, 2009, totaled $435,130.00. This represents 530 total DUI fines, a small decrease from the DUI fines issued in 2008. The story goes on to explain that the fine money amounts to only 1/26th of the City of Oxford budget, contrary to popular opinion. Bringing together the previous stories, Mayor Patterson explains that he would trade that income for reducing the number of DUI's in Oxford.

If you didn't get a copy of yesterday's Enterprise I suggest you pick one up for the full stories.

What is Drug Court?

Kevin W Frye — Mon, 18 Jan 2010 12:33:00 GMT

Drug Court is a special court designed to rehabilitate certain felony offenders through long-term comprehensive supervision, drug testing, treatment services and immediate sanctions and incentives. The concept of drug court is a response to the recognition that the judicial and prison systems are overburdened by drug offenders, and that rehabilitation is a better solution than punishment through prison time.

According to the State of Mississippi Judiciary website "[d]rug court participants undergo long-term treatment and counseling,sanctions, incentives, and frequent court appearances. Successfulcompletion of the treatment program results in dismissal of thecharges, reduced or set aside sentences, lesser penalties, or acombination of these. Most importantly, graduating participants gainthe necessary tools to rebuild their lives." There are ten recognized "key components" of drug court, as published by the Drug Courts Program Office of the United States Department of Justice, they are:

Drug courts integrate alcohol and other drug treatment services with justice system case processing.
Usinga non-adversarial approach, prosecution and defense counsel promotepublic safety while protecting participants' due process rights.
Eligible participants are identified early and placed promptly in the drug court program.
Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services.
Abstinence is monitored by frequent alcohol and other drug testing.
A coordinated strategy governs drug court responses to participant compliance.
Ongoing judicial interaction with each drug court participant is essential.
Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.
Continuing interdisciplinary education promotes effective drug court planning, implementation and operations.
Forgingpartnerships among drug courts, public agencies, and community-basedorganizations generates local support and enhances drug courteffectiveness.

I have previously written about the Third Judicial District Drug Court here and here - the Drug Court covers Lafayette, Marshall, Calhoun, Tippah, Benton, Chickasaw and Union counties. Since the inception of the Third Judicial District Drug Court in April, 2008, I have had the opportunity to work with the Court personnel, and have been impressed. Likewise, my clients and others report many positives. Certainly the development of drug courts is a positive and practical step in the ongoing war on drugs.

You can find additional information about Mississippi drug courts on the State of Mississippi Judiciary website, including a list of frequently asked questions, here.

Oxford Criminal Law News

Kevin W Frye — Wed, 02 Dec 2009 19:27:00 GMT

Yesterday The Oxford Eagle published two news stories on local criminal law issues by Alyssa Schnugg. The first discusses the Lafayette County Metro Narcotics Unit and its budget:

To help meet its $340,151 budget this upcoming year, the Lafayette County Metro Narcotics Unit will receive $186,163 from the Byrne-Jag Assistance Grant, a federal program that funds state narcotics agencies.

In past years, the unit has received the grant in amounts ranging from $85,000 to $140,000.

“This will help keep us running for another budget year,” said Metro Narcotics Commander Searn Lynch.

The University of Mississippi, the city of Oxford and Lafayette County all contribute $75,000 each to help support the unit that works to solve drug-related crimes in the entire area and isn’t confined within city or county jurisdictions.

Earlier this year, the university announced it was considering backing out of the interlocal agreement because of budget restraints, but UM officials later decided to continue to support the unit for another year.

The unit has several investigations going on right now, and Lynch said he hopes to have some of these “wrapped up” by the first of the year.

“Drug use in the area remains consistent,” said Lynch, who has been commander for three years.

Marijuana sales have risen recently, as well as the quality of the drug, he said.

“We’re seeing a lot of hydroponically grown marijuana,” Lynch said. “It’s more expensive and the THC (Tetrahydrocannabinol) level has grown.”

The second story explains that burglaries in Lafayette County have increased:

Brazen burglars have kept investigators with the Lafayette County Sheriff’s Department busy in recent months as they deal with a sharp increase of home break-ins.

“We’re having burglaries everywhere,” said Investigator Scott Mills.

In November 2007 there were 15 residential burglaries. In November 2008 there were 16 burglaries. As of yesterday, there were 22 reported burglaries in the county for the month of November, according to the daily crime reports released each day by the Sheriff’s Department.

Ole Miss v. Alabama = 80 arrests

Kevin W Frye — Wed, 14 Oct 2009 13:14:00 GMT

Last weekend saw the biggest football crowd in Ole Miss history, but the stadium and the Grove weren't the only crowded locations in Oxford and Lafayette County. The jail was packed. Alyssa Schnugg has this story in the Oxford Eagle:

Local law enforcement officers were kept busy this weekend due to the many fans in town for the Alabama and Ole Miss game on Saturday.

“We were really busy,” said Oxford Police Chief Mike Martin. “It’s one of the busiest weekends we’ve had in a long time — since the Florida and LSU games when Eli (Manning) was here.”

Law enforcement officers with the OPD, Lafayette County Sheriff’s Department and the University Police Department made a total of 80 arrests between Friday and Sunday night.

“We had everybody we had available working,” Martin said. “If you weren’t on regular duty, you were somewhere working.”

On Friday and Saturday, patrol officers dealt with heavy traffic all over Oxford.

“We had parking issues and traffic congestion issues — everything was a parking lot,” Martin said. “Then, in the middle of all that, we started having to deal with people who were already drinking.”

Martin said his department towed about 30 vehicles during the weekend.

“Nineteen of those were from Molly Barr Road,” near Gertrude Ford Boulevard, Martin said. “Where we had great, big, orange signs that said ‘No Parking - Tow-Away Zone.’”

OPD made 60 arrests, while sheriff’s deputies arrested eight people and UPD arrested 12. Most of the arrests were alcohol or driving related with no felony arrests being made.

“It was crazy,” Lafayette County Sheriff Buddy East said. “We had an extra shift on and some part-time folks come in. It was hectic for a while.”

Over at the Lafayette County Detention Center, corrections officers worked around the clock to process the 70-something people who had been brought in over the weekend. While most people who are arrested are taken to the jail, some are given a “notice to appear in court” and allowed to go home without being brought into the jail and processed.

Six of the 60 arrested by OPD were given notices to appear in court, Martin said.

Jail administrator Gerald Clemons said the detention center was full for most of the weekend, but that his staff “had it covered.”

“It was just normal football-crowd stuff,” Clemons said. “For a home game, it was a pretty normal weekend. They’re always pretty busy.”

Clemons said it took a little bit longer than normal to get everyone processed and out.

“But we kept it moving,” he said Monday.

Of the arrests, 12 were for DUI.

Grand Juries and Their Legal Loopholes

Caleb Ballew — Wed, 02 Sep 2009 15:17:00 GMT

Grand juries are independent screening bodies that prosecutors use to secure indictments against criminal defendants. However, grand juries are a bit confusing in the legal sense for various reasons. First, in contrast to federal jurisdictions, states are not required to even have grand juries as part of their criminal justice process. Hurtado v. California, 110

U.S.

516 (1884). In fact, only one third of the states use grand juries, Mississippi being one.

Additionally, constitutional protections afforded to criminal defendants have been held not required for grand jury proceedings. For example, the Supreme Court has held that a prosecutor does not have a duty to disclose potentially exculpatory evidence to members of a grand jury, though he has this duty at trial. United States v. Williams, 504 U.S. 36 (1992).

Furthermore, a witness or a potential defendant does not have the right to counsel during grand jury investigation. Kirby v. Illinois, 406 U.S. 682 (1972). The Sixth Amendment right to counsel attaches once formal prosecution against a person begins. Because the grand jury’s purpose is to start these formal charges in the first place, no constitutional right can be applied. Not only that, but witness’ or a future defendant’s attorney can’t even be in the grand jury room. Attorneys (other than the prosecutor) are not allowed in the grand jury rooms because of the constitutional reasons I just explained, but also because grand juries have been traditionally “cloaked with secrecy." Addkinsonv. State, 608 So.2d 304 (Miss.1992).

Miss. Code Ann. §97-9-53 makes it illegal for any “grand juror, witness, district attorney, clerk, sherriff or any other officer of the court” to disclose whether an indictment was rendered, or the nature of evidence that was used to secure the indictment. However, disclosure is permitted 6 months after the proceedings or after the defendant is arrested or given bail or recognizance.

Despite these exceptions for disclosure, it is still difficult for defense attorneys to access grand jury transcripts. If the witness at a grand jury is to be used by the state at trial, the defendant is entitled to discovery. Addkinson, 608 So.2d 304. But, many times at grand juries, prosecutors use witnesses who can only relate hearsay evidence, and therefore are not usable at trial. The Supreme Court has found no problem in grand juries securing an indictment on this type of faulty evidence, however. Costello v. United States, 350 U.S. 359 (1956). As a practical matter therefore, prosecutors may be able to bring witnesses that they won’t use at trial to testify to things that they heard through the grapevine. This evidence is used to secure an indictment, but because the witness will not be at trial, the prosecutor shields defense attorneys from attaining the transcripts via discovery procedures.

The final practical obstacle for defendants is that many times court reporters are not even present in the grand jury room (or so I’m told from attorneys who actually practice), therefore no recording is made. Despite Addkinson’s mandate that witness testimony from a grand jury be available to defendants if that witness intends on testifying at trial, many times that is impossible because no transcript exists.

Any substantive grand jury reform will come from the legislature. It is hard, if not impossible, to blame prosecutors for the weirdness of grand juries. Using a hearsay witness at a grand jury proceeding is terrific strategy for a prosecutor and defense attorneys might do the same thing if he or she were in that position. Prosecutors don’t make the rules, they just play by them. But that doesn’t mean defense attorneys can’t be frustrated because the grand jury game does seem a bit rigged.

New School Year - Oxford, Ole Miss and Alcohol Revisited

Kevin W Frye — Thu, 27 Aug 2009 16:28:00 GMT

Below is a re-post of a blog entry I did last August - the topics are relevant again this year.

As the new school year begins I thought I'd re-post some selected links from the past on the topic of alcohol and the laws/rules relating to consumption in Oxford and on the Ole Miss campus. These posts address various issues, including: alcohol related penalties, field sobriety tests and talking (or not) to the police. Enjoy!

Drinking & Driving in Oxford & Mississippi:

DUI Crackdown

DUI Penalties in Mississippi

Zero Tolerance for Minors

A DUI Lawyer: Kind of...

Ole Miss Alcohol Rules:

What are the Alcohol Rules on Campus - I'm Confused...?

"Changing the Culture": Ole Miss Alcohol Policy & Two Strikes Rule

Legal Drinking Age: The Debate Continues

Related Information:

Why Talking to the Police is a Bad Idea...Again

Should I Let the Cops Search My Car?

Field Sobriety Tests: What Are the Police Looking For?

DUI Crackdown or Highway Patrol Fundraiser?

Kevin W Frye — Wed, 26 Aug 2009 14:16:00 GMT

I've been following the ongoing "DUI Crackdown" campaign, also known as [“Drunk Driving. Over the Limit. Under Arrest.”] with recent posts here and here. Today the Clarion Ledger reveals that in Mississippi, 4,967 tickets have been issued in the first 3 days of the campaign. Guess how many were for DUI? Just 86 - less than two percent of the total tickets issued. The campaign is being promoted as a "DUI Crackdown" but is in reality a law enforcement fundraiser. If the promoters titled it a "campaign to issue lots of tickets, less than two percent being DUI tickets" the law-abiding public wouldn't swallow the idea so easily.

DUI Crackdown (Again)

Kevin W Frye — Fri, 21 Aug 2009 20:06:00 GMT

Once again, Mississippi law enforcement agencies have joined together in a DUI crackdown as the new school year begins. As I predicted, a new campaign titled [“Drunk Driving. Over the Limit. Under Arrest.”] has begun. The Oxford Eagle reports the following today:

Local law enforcement agencies will be out in force during the next two weeks in hopes of keeping area roadways safe during the Labor Day holiday by keeping impaired drivers off the roads.

They will be joining thousands of other law enforcement and highway safety agencies throughout the nation who will be taking part in the “Drunk Driving. Over the Limit. Under Arrest.” campaign. The enforcement blitz began today and will continue through the holiday weekend that ends on Sept. 7.

The national “Drunk Driving. Over the Limit. Under Arrest.” impaired-driving crackdown is a program organized by the U.S. Department of Transportation’s National Highway Traffic Safety Administration that focuses on combining high-visibility enforcement with heightened public awareness through advertising and publicity.

“No matter what you drive — a passenger car, pickup, sport utility vehicle or motorcycle — if we catch you driving impaired, we will arrest you. No exceptions. No excuses,” said Oxford Police Chief Mike Martin.

Violators often face jail time, the loss of their driver’s license, higher insurance rates, attorney fees, time away from work, and dozens of other expenses.

“So don’t take the chance,” Martin warns. “Remember, if you are caught over the limit, you will be placed under arrest.”

The Mississippi Highway Patrol will be saturating local state highways during the campaign with extra troopers and road blocks.

Excerpted from "Police to crack down on DUI during holiday week" by Alyssa Schnugg of the Oxford Eagle.

Ole Miss & Alcohol - In the News

Kevin W Frye — Sun, 16 Aug 2009 13:40:00 GMT

As college students prepare to return to campus, the Clarion Ledger is stirring up the issue of "alcohol abuse" here. The article references the University of Mississippi's "Two Strike" Policy, which I have previously addressed and also mentions the Ole Miss party school reputation. Some excerpts:

From Web-based alcohol education courses to media campaigns featuring student athletes, Mississippi's universities are looking for new ways to curb alcohol abuse.

"We value our students a great deal," University of Mississippi Dean of Students Sparky Reardon said. "Our repeated advice to them is to know the rules, obey the rules and take responsibility."
Ole Miss consistently ranks among Princeton Review's top "party schools."
Officials largely dismiss the rankings and have cracked down on alcohol enforcement in recent years.
"This fall we'll be meeting with freshmen in residence halls, as well as the fraternities and sororities and all student-athletes," Reardon said.
Ole Miss enforces a "two-strike" policy on campus. Any student found in violation of alcohol laws or policy twice can be suspended for a semester.
"It's one of the toughest (policies) anywhere," Reardon said.

I'll bet the Mississippi Highway Patrol will be back at it this week too.

What is "Possession" (of Marijuana or other Controlled Substances) in Mississippi

Caleb Ballew — Tue, 11 Aug 2009 21:16:00 GMT

Many times in cases where possession is a critical element for the State to prove (i.e. drug cases), the prosecution must prove possession through “constructive possession”. This is a term of art developed in the legal system. It essentially means that although you were not actually possessing the illegal object at the time of your arrest (in your pocket or in your hand), you had sufficient opportunity to control or possess the illegal object (in the backseat of the car you are driving or on the coffee table where you just sat your bag of munchies). In short, “constructive possession” relies on the specific facts of your particular situation.

The legal standard for constructive possession goes as follows:

[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it...Constructive possession may be shown by establishing that the drug involved was subjected to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. Curry v. State, 249 So.2d 414, 416 (Miss. 1971).

Additionally, in Mississippi, often if the drugs or contraband are found on or in a premises that you own, you face an uphill battle. Pool v. State, 483 So.2d 331 (Miss. 1986). Meaning, if there is a duffel bag of drugs in the back seat of a car you own and are operating, the outlook is not good.

But, let's change that hypothetical a bit. Let's say you are a passenger in a car where drugs are found. Does your status merely as a passenger give you the sufficient capacity to exercise dominion and control over drugs hidden somewhere in the car? Typically, no.

In Spurlock v. State, the driver of a car was pulled over and legally searched resulting in police seizing an amount of drugs from the driver's person. The passenger, Mr. Spurlock, was searched but nothing was found. However, charges were later brought against Mr. Spurlock after drugs were uncovered from under the passenger seat during a routine inventory search. Spurlock was found guilty at trial but the appeals court reversed his conviction. That court focused on the fact that there was no evidence that Spurlock attempted to hide the drugs and his fingerprints were not found on the drugs themselves. Therefore, the court held that Spurlock did not exercise a sufficient amount of control over the contraband. Spurlock v. State, 771 So.2d 1002 (Miss. Ct. App. 2000); 3 MS Prac. Encyclopedia MS Law 23:272. This doesn't mean that all passengers get off scot free.

If, for instance, Mr. Spurlock was found in the passenger seat with cocaine residue on his shirt and fingers or he smelled like a freshly lit joint, a court might reasonably assume that he was aware of the drugs directly beneath him. Or, if officers had seen Mr. Spurlock attempting to conceal something as they were approaching the car, a court might have sustained his conviction. Walker v. State, 2006 WL 3593462 (Miss. Ct. App. 2006) (holding that possession of controlled substances was not against the overwhelming weight of evidence where officer testified he saw defendant attempting to conceal something under his seat following a routine traffic stop).

Essentially, many possession cases boil down to the particular facts of the case. What does this mean? It means when police suspect that they might be dealing with a possession situation, they are going to focus on every detail of the encounter, as they should. Careful and thorough police officers are what citizens should hope for, not something to fear. Unless of course you are carrying drugs in your car, in which case the police shouldn't be faulted for doing their job.

It also means an attorney's ability to “get you off the hook” can be limited by your actions. Part of a defense lawyer's job is to navigate your set of facts through the legal system in order to attain a fair ruling -- not to alter or change the facts so that you can game that system.

One takeaway point here is to be upfront at every stage of the process should you be charged with a possession crime. Well-trained police officers can smell a lie from miles away, so lying will only heighten an officer's suspicion (better to simply not talk to them). This leads to an even more thorough, prolonged search and likely some unfavorable testimony at your trial. Also, in light of the way “constructive possession” can change with just a few more facts, it is important to tell your attorney EVERYTHING, so that he or she can tailor their research to your specific set of facts, allowing them to make the best possible argument for your case.

For additional reading on penalties for possession of marijuana see this previous post.

Mississippi Bureau of Narcotics & the Economy

Kevin W Frye — Thu, 06 Aug 2009 12:20:00 GMT

According to today's Clarion Ledger, here, the Mississippi Bureau of Narcotics is holding off on hiring new officers as a result of the poor economy. The article goes on (in alarmist fashion) to discuss the "rise" in prescription drug abuse and methamphetamine production. An excerpt:

Fisher cited an increase in methamphetamine labs and prescription drug abuse for the increase. Investigators have found 223 meth labs in the state so far this calendar year, he said. That's 50 percent more than in the same time period in 2008, he said.
Fisher said drug arrests have been made in every county this year. More populated counties with interstate traffic, such as Hinds and Harrison, show more illegal drug activity, he said.
State lawmakers tried to curb meth labs by passing legislation a few years ago that restricted the purchase of over-the-counter medication used to make the drug. Fisher said meth makers are now buying the medication at different stores and "making smaller batches."
The Methamphetamine Reduction Act of 2005, also known as the precursor law, put restrictions on products containing pseudoephedrine and ephedrine - ingredients used to make meth.
Fisher said a federal grant could help him replace some of the 11 officers he's lost over the last year. Gov. Haley Barbour is urging state agencies to be careful with their spending since revenues fell 11.3 percent short of expectations in July, the first month of the current fiscal year.
Lawmakers put restrictions on Internet drug sales in the last session. Fisher said he plans to push for more legislation in the next session and and continue training programs for local law enforcement officials.

Two thoughts: first, this is a typical alarmist article from the media. I suppose I shouldn't be surprised at the Clarion Ledger pushing hysteria about meth labs and drug overdoses. But, I'd rather see some real data. Which leads to my second thought: I think it's quite a logical leap to say meth labs and prescription drug abuse are on the rise based only on the number of arrests. Maybe MBN is simply operating more effectively. Again, real data would be interesting.

Mississippi Criminal Defense (Law) Blog

Kevin W Frye — Tue, 28 Jul 2009 14:27:00 GMT

According to my research, I've been publishing the Mississippi Criminal Defense Law Blog for 1 year, 3 months and 20 days. I've averaged between 1 and 2 posts a week over that time. Certainly I haven't spent all my time here, but I would say I've made an effort to provide what I consider an informative criminal law source to Mississippi residents.

I also follow a number of other bloggers, both locally and nationally, and I poke around every now and then to see if anyone new has popped up. I did that this morning, and I admit I found myself slightly irritated to discover a new criminal law blog in Mississippi. Not that I have anything against other criminal law attorneys, nor do I believe that I have a corner on the blogging market. In fact, I have links to a number of Mississippi blogs in my Blogroll to the left.

I'm irritated because another attorney set up a blog with a title almost identical to the title at the top of this page. You can now visit me on the Mississippi Criminal Defense Law Blog, or go looking for my blog and stumble upon the uniquely titled Mississippi Criminal Defense Blog. I find it difficult to believe that the attorney who began blogging there barely two weeks ago, on July 2, 2009, wasn't aware of this blog or its name. I actually find it more plausible that the nearly identical name was chosen to trade on the established visibility of this blog. Like I said, that irritates me.

The internet is a wide open place, and I have no control over this attorney or his choice of a blog title. But that doesn't stop my irritation at his choice - my initial reaction included visions of a parasite. I guess all I can do is wish him luck, it isn't easy to build a web presence from the ground up.

Sotomayor and Civil Forfeiture

Caleb Ballew — Fri, 24 Jul 2009 17:53:00 GMT

After following the Sotomayor soap opera that was the Senate Judiciary hearings last week, I came across an interesting document published by The Alliance for Justice that can be found here. That report details many aspects of Sotomayor's criminal justice record, including her tendencies to rule in favor of the government on 4th and 5th Amendment issues, her affinity for finding harmless error, and her willingness to entertain challenges to government forfeiture. Below are some tidbits from the document relating to her rulings in civil forfeiture cases.

Her rulings for claimants and for the government are well-balanced and highlight her strict adherence to analyzing claims on a case-by-case basis. For example, in Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), cert. denied 539 U.S. 969 (2003), Sotomayor held that New York's vehicle forfeiture process violated the Constitution. She argued that since a vehicle is intimately connected to a person's livelihood, the forfeiture process must include a prompt neutral fact-finder to satisfy a claimants due process rights. Because it did not, the process was unconstitutional.

She has also shown a willingness to hold the government's feet to the fire when meeting their burdens at forfeiture proceedings. She has ruled in favor of claimants when the government has failed to prove a sufficient nexus between proceeds and illegal activity. United States v. Capoccia, 503 F.3d 103 (2d Cir. 2007). Additionally, she has been reluctant to give the benefit of the doubt to the government when questions of fact remain as to the source of forfeited funds. United States v. 9,380 in US Currency, 1999 U.S. App. LEXIS 22958 (2d Cir. Sept. 16, 1999).

However, on many occasions Sotomayor has ruled in favor of the government, illustrating her to be a judge who looks very closely at the facts. In United States v. $557, 933.89 More or less in U.S. Funds, 287 F.3d 66 (2d Cir. 2002), Sotomayor upheld the administrative forfeiture of money orders at an airport, and found that the claimant's 4th Amendment rights were not violated despite the lack of a warrant.

Overall, Sotomayor has far more practical criminal experience than any of the current Justices. This experience combined with her reputation as being a judge with strict adherence to precedent and procedure should make for well-reasoned, real-world decisions. Finally, because Sotomayor puts such emphasis on the facts and context of the cases she hears, both claimants and law enforcement should be ready to recall all relevant facts (whether helpful or harmful) in order to succeed in proceedings before her.

Fumbled Forfeiture

Caleb Ballew — Wed, 15 Jul 2009 16:40:00 GMT

Current forfeiture law promotes the violation of constitutional rights for economic gain, especially for drug cases. Additionally, because of the State’s potential economic gain attached to drug cases, forfeiture law allows government and law enforcement to remain complacent with the lack of progress on the War on Drugs.

Kevin briefly described the backwardness of forfeiture earlier this year, here. Basically, forfeiture allows law enforcement to take property that is used or intended to be used in connection with illegal activity for its own use. Kevin also pointed out the glaring conflict of interest when police officers have financial incentive attached to their investigations. I wanted to probe these policy flaws a bit further.

First, forfeiture threatens the protections against illegal searches and seizures guaranteed by the Fourth Amendment by allowing police officers to retain the financial benefits of forfeiture despite the outcome of the related criminal prosecution. In Mississippi, a claimant does have the opportunity to explain a legitimate source for the funds, but courts are not always convinced. That’s right, folks, even if criminal charges are dropped or the defendant is innocent, police (under federal jurisdiction and a few state jurisdictions) can still keep the goods, i.e. money or real estate. Bennis v. Michigan, 516 US 442 (1996) (holding that car jointly owned by husband and wife was forfeitable despite wife’s innocence in crime of which husband was found guilty).

This little loophole exists primarily because forfeiture moves fluidly from higher criminal standards to lower civil standards. First, in order to seize property, police must have “probable cause” that the property is connected to the illegal activity. Subsequent to law enforcement’s seizure, the criminal defendant may attempt to regain his or her property through a forfeiture proceeding. Yet, the State must only prove by a “preponderance of the evidence”—a civil standard less demanding than the criminal standard of probable cause—that the property was used or was intended to be used in violation of the law. Blumeson and Nilsen, THE NEXT STAGE OF FORFEITURE REFORM 14 Fed.Sent.R. 76 (Sept. 2001).

Because the forfeiture proceeding is a civil matter, criminal violations such as illegal searches and seizures hold no legal significance. Boudreaux and Prtichard, CIVIL FORFEITURE AND THE WAR ON DRUGS, 33 San Diego L.Rev. 79 (1996); See also One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (holding that double jeopardy claims are not valid in civil forfeiture proceedings as they are criminal issues). Furthermore, that item’s connection to illegal activities may fail to meet the probable cause standard in the criminal world and thus be excluded from trial; however, the police may still retain the item by meeting the lower preponderance standard in the civil proceeding.

So, perhaps an over-zealous or morally flexible police officer may be willing to conduct a warrantless search predicated on mere hunch, knowing that even though the criminal case is ruined by a constitutional violation, he and his department can still keep the couple grand found in a Mason jar labeled “Summer Vacation Savings”. With job security and the financial stability of state budgets both plummeting, it is not beyond belief that agencies and individual officers may put a lower emphasis on protecting constitutional guarantees, and a greater emphasis on having enough money to stay afloat. Christopher Buckley's words ring loud with practicality, "We all have mortgages to pay".

Forfeiture also indirectly threatens public safety, specifically regarding illegal drug investigations. We’ve all seen enough TV and movies to know that drug sales don’t happen overnight. Many steps have to take place before drugs are turned into money; manufacturing, transportation, and distribution are just a few. That being said, a police raid that results in the seizure of drugs and paraphernalia is useless compared to a raid that results in large sums of cash. In the former scenario, the police cannot resell illegal drugs and paraphernalia, but instead must destroy such items. On the other hand, cash forfeitures provide immediate financial relief.

As a result, law enforcement who are covertly investigating and monitoring illegal drug activity are more tangibly rewarded for busting dealers later in the operation, once the drugs have been turned to cash. Blumeson and Nilsen. However, when police wait for the cash to roll in before making a bust, they must accept the fact that the drugs have already been sold and used. Forfeiture therefore pulls attention away from rehabilitating addicts and decreasing the supply of available drugs. Id. Instead, because it is more lucrative for police to bust dealers who have already sold their stash, forfeiture focuses law enforcement’s attention on the proceeds of the drug trade. Commenting on this backward incentive structure, Patrick Murphy, the former Police Commissioner of New York, has noted that more roadblocks were placed on the southbound lanes of I-95 around NYC, which carry the money to buy drugs rather than the northbound lanes, which carry the drugs themselves. Id. citing Richard Minter, Ill Gotten Gains, 25 Reason 32, 34 (Aug/Sept 1993).

So, in twist of irony, the War on Drugs has become a financial crutch for many police departments. As certain as our society is that drugs are destroying families and ruining lives, that society must also admit that the same drugs provide many positive qualities, such as bankrolling State institutions and supporting law enforcement.

Caleb Ballew - Guest Blogger

Kevin W Frye — Wed, 15 Jul 2009 16:22:00 GMT

I have lately had an intern from the University of Mississippi School of Law working with me in my practice. He has proved helpful in a variety of areas, and additionally expressed his interest in writing some guest posts for the blog. As my intent behind the blog is to provide timely and informative discussion of criminal law issues in Mississippi, I figured another voice couldn't hurt. So, without further explanation, I'd like to introduce you to Caleb Ballew, a rising 3L at the Ole Miss School of Law. I have given Caleb freedom to choose his own topics and interests, and I look forward to hearing his opinions.

And one final caveat/disclaimer - Caleb's opinions and analysis should not be construed as representing my opinions or the opinions of this firm.

Criminal Law News Update

Kevin W Frye — Fri, 03 Jul 2009 12:44:00 GMT

On Tuesday The Daily Mississippian ran this story detailing recent events in a case in which I am involved. The headline reads "Ole Miss student found innocent."

Crime Lab Analysis and Trials

Kevin W Frye — Fri, 26 Jun 2009 16:50:00 GMT

Yesterday the United States Supreme Court issued its opinion in Melendez-Diaz v. Massachusetts, read it here. The decision will have a major impact on criminal trials in Mississippi involving crime lab data, as the court, in an opinion penned by Justice Scalia, held that crime lab certificates may not be admitted as evidence against a defendant without the accompanying testimony of the analyst.

The legal issue here is the defendant's right to confront his accuser set forth in the 6th Amendment. The 6th Amendment states the following:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The clause emphasized above is commonly called the "confrontation clause." The Supreme Court based Melendez-Diaz on its previous ruling in Crawford v. Washington which held that "a witness’s testimony against a defendant is...inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination."

It is common practice in many Mississippi courts to admit the crime lab report without testimony from the analyst. In some courts, if the defendant requests the analyst be present to testify the court orders that defendant to pay for the analyst's time. The ruling in Melendez-Diaz places this burden on the State by holding that the prosecutor must produce the analyst for cross-examination.

See additional commentary from the SCOTUS Blog here and the Wall Street Journal Law Blog here.

We already knew this, but still...

Kevin W Frye — Tue, 02 Jun 2009 13:08:00 GMT

...I was surprised to find a police chief willing to admit tickets were being written to assist a city budget during the economic downturn. This story from the Clarion Ledger today details the Petal Police Chief's disagreement with the Petal Mayor and Board of Aldermen, an excerpt:

Police Chief Lee Shelbourn said Monday he was told to double the number of citations and set up more roadblocks to help ease Petal's budget crisis.
But Mayor Carl Scott and the Board of Aldermen deny giving such instructions.
Shelbourn would not disclose who gave him the instructions. He said his department did as it was told but isn't planning to do it anymore.
"The Police Department is not supposed to be a money-making organization," he said. "Our purpose is to provide public safety to the citizens of Petal ... to where they can feel safe at night."
The denials from the city administration came swiftly after Shelbourn's comments were posted Monday at www.hattiesburgamerican.com.
"Nobody can tell the chief what to do by state law," said Mayor Carl Scott. "Anybody can have discussions with him, but you can't tell him what to do."

The reality of traffic tickets being used to pad local government budgets isn't surprising, but it is surprising and refreshing to see a local dispute of this sort detailed in the news.

The Local Voice: Local Favorites Awards 2009

Kevin W Frye — Mon, 01 Jun 2009 13:51:00 GMT

Stepping slightly off topic for today, I want to express my appreciation to the readers of The Local Voice for recognition in the Local Favorites Awards 2009. I was interested to see the tie with Oxford's most infamous attorney, but happy for the good company of Tom Freeland, aka "NMC", Jay Carmean, Rosy Posey and Lucky atop the favorite attorney category. I see many friends on the list in a variety of categories - I encourage you to review the listings for yourself. Congratulations to all the favorites, and special shout-out to Holli's Sweet Tooth, winner of the Dessert category and home of the best lemon sorbet in town!

ATTORNEY
1. (TIE!) Dickie Scruggs, Kevin W. Frye (13%)
2. Tom Freeland (10%)
3. Jay Carmine (8%)
Rosamond Posey (5%)
Lucky Tucker (5%)