Archive for the 'Criminal Law' Category

Acts and Omissions

Published
by
Christopher Meredith
on Jul 21, 2008
in Civil Procedure, Criminal Law and Current Events
. 0 Comments

The Clarion-Ledger ran a very interesting article today regarding a former Jackson Police Department officer who plead guilty to vehicular manslaughter and whose record was expunged two years later. The article presents several interesting topics of conversation, not the least of which being the practice of deferred sentencing which appears to aid the “good old boy” reputation of Jackson law enforcement.

However, I want to focus on the issue of governmental immunity. Here is a relevant excerpt from the article:

On June 11, 2005, Middleton, who had been a Jackson police officer since 2003, was working a 2-10 p.m. shift. After dropping a prisoner off at the Hinds County Detention Center in Raymond, he headed north on Mississippi 18 near Siwell Road, according to police statements.

At the same time, around 10:44 p.m., Harris was heading in the opposite direction. Harris, driving a 2000 Pontiac Grand Am, tried to turn left onto Siwell.

Witnesses told police investigators that Middleton was driving at a high speed without his emergency lights or siren on. They said he ran the traffic light and crashed into Harris’ vehicle.

Middleton was indicted in October 2005. After a Jackson Police Department Internal Affairs investigation, he left the department.

Harris’ family has a wrongful death lawsuit pending in Hinds County Circuit Court against Middleton and the city of Jackson. No trial date has been set.

Assistant City Attorney Pieter Teeuwissen said the city’s position is that it is prohibited by law from paying the Harris family’s claim.

Teeuwissen said the state code says “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.”

Although the offense has been wiped from Middleton’s record, he pleaded guilty to a criminal offense, Teeuwissen said.

Sounds reasonable, right? You may not agree with the law, but there it is, black and white. A government employee is not acting within the scope of his employment if he is engaging in a criminal act. Middleton plead guilty to a criminal charge, therefore he was not acting within the scope of his employment, right? Not quite.

Whether the reporter considered it unimportant, or whether Mr. Teeuwissen conveniently omitted it from his interview, the actual statute reads a bit differently from the quote in the article. Here is Miss. Code Ann. § 11-46-5(2) in its entirety:

For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations. (emphasis added)

That changes the landscape a little, does it not? Respondeat superior and governmental immunity may be complicated issues, but there is a huge difference between a government employee knocking over a 7-11 and a police officer on duty, in uniform, in a marked government police cruiser returning from a duty of his employment driving recklessly, running a red light, and killing an innocent motorist. One falls under the statute and the other doesn’t.

The City should pay through the nose for this one.

The Dark Side of the Attorney/Client Privilege

Published
by
Christopher Meredith
on Apr 14, 2008
in Criminal Law and Current Events
. 0 Comments

The attorney/client privilege has many implications, one of which being that in civil cases, a party cannot obtain discovery from the opposing party’s lawyer of information told to him by his client. The primary reason for this is that a person has to be able to have 100% trust and confidence in his lawyer if the two are to work together to prepare a proper case.

In the criminal justice system, the attorney/client privilege looks a little different, at least in the public eye. One of the ethical requirements that obligates a lawyer is to never incriminate his client. The reasons for this are much the same as in the civil context. Even though we don’t like “bad guys,” they are nonetheless entitled to an adequate defense. If the system allowed lawyers to “rat out” their clients, the system would effectively deprive the accused of an adequate defense. Defendants would always be on guard, unable to trust their own attorney. They would resist divulging any information they wouldn’t tell the police and they would simply be unable to have an adequate defense.

With this in mind, consider the case of Alton Logan. Logan has been in prison for 26 years for a crime he didn’t commit. The true perpetrator, Andrew Wilson, had in fact committed the murder for which Logan is serving time. At the time, Wilson had told his lawyers that he, and not Logan, had committed that murder, but Wilson’s attorneys were bound by the attorney/client privilege and could not come forward with the information.  Logan was wrongfully convicted and only now that Wilson has died in prison has the privilege been released and the truth been able to come out.

It is very difficult to be in the position of defending a system which allowed an innocent man to spend 26 years in prison for a crime he didn’t commit. On the other hand, I’m not really defending it. The burden for falsely convicting Logan rests on the prosecution and Logan’s own lawyers. Since Logan did not actually commit the crime, we should blame the system that falsely convicted him.

The attorney/client privilege is good for the system, even though it occasionally seems to produce unjust results. It also highlights the reasons I have no desire to go into criminal law. The stakes are very high and the toll it takes on the conscience is not one I’m willing to pay.

Attempted Murder in Mississippi?

Published
by
Christopher Meredith
on Feb 19, 2008
in Criminal Law and Current Events
. 0 Comments

Last week the rumblings began to emerge that there is no crime of “attempted murder” in the state of Mississippi. This was apparently prompted by this story which ran in a TV news spot and was discussed on radio programs as well.

“Attempt” offenses are a common law category and therefore, the state would either have to refuse to recognize the crime on the judicial level, or eliminate it at the legislative level. In Mississippi, neither of these appear to be the case.

The Mississippi Code specifically provides for “attempt” crimes.

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

Miss. Code Ann. § 97-1-7. Further, a cursory search of the recent state cases turns up numerous cases of attempted murder convictions. Even more apparent is that there is ample evidence in the news. Someone should tell Flora Shearill that there is no attempted murder in Mississippi.

So I don’t know what those police offers were talking about when they told Mr. Register that there is no charge of “attempted murder.” HB 644 makes sense when one considers that the legislature might want to exercise more control over the elements and/or sentences for attempted murder. But clearly, a person can be charged with attempted murder in the state of Mississippi.