Coon Law Jackson Attorney Blog

This is just a quick entry to remind both clients and potential clients of something very important. If you have been arrested on a felony charge, bonded out, and some time later you are receiving calls from the sheriff or any other law enforcement official, do not panic or ignore their phone calls. He is not trying to throw you back in jail. Defendants in Mississippi are required to pick up their indictments in person. If you go and pick up the indictment, you will not be going to jail. However, if you do not pick up your indictment, the sheriff will be forced to arrest you.

These are the procedural steps for appealing a conviction and getting a loved one out of jail, if they have plead guilty. The first two steps must be completed before moving onto the third and there is a time bar to complete the first two steps. In Mississippi, it is true that by pleading guilty a defendant gives up the right to direct appeal but e does not give the right to any and every appellate procedure.

APPELLATE PROCEDURE

1. Post Conviction Relief
⁃ Court with Original Jurisdiction
2. Appeal of Denial of Request for Post Conviction Relief
⁃ Mississippi Supreme Court
3. Writ of Habeas Corpus
⁃ Federal District Court
4. Appeal to Federal Court of Appeals
⁃ Fifth Circuit Court of Appeals
5. Writ of Certiorari
⁃ Request that US Supreme Court Hear Case
6. Supreme Court of the United States
⁃ Hearing before Supreme Court if they agree to hear case.

This Mississippi Attorney practicing in Criminal Defense does not usually like to post regarding successful cases because every case is different and it seems wholly uninformative to boast about the results that I may have achieved for another client. However, not too long ago, I successfully defended a client against a charge of leaving the scene of an accident. It occurred to me that many people do not know how serious the crime of leaving the scene of an accident is. Thus, by telling this war story, I am also informing the reader.

Leaving the Scene of an Accident is a serious criminal charge in Mississippi. The severity of the crime depends upon the severity of the injuries sustained by the other persons involved in the accident. If no one is seriously injured, disfigured or killed, then it is a misdemeanor punishable by not less than thirty [30] days and not more than a year and/or a maximum fine of $5,000. If a criminal defendant is charged with leaving the scene of an accident where someone was seriously injured, disfigured or killed, that charge is a felony and it is punishable by not less than five [5] or more than twenty [20] years in prison and/or a maximum fine of $10,000. See Miss. Code Ann. § 63-3-401. Duties of drivers involved; sanctions.

The consequences of a leaving the scene of an accident are serious and it is certainly a charge that you should not try and defend yourself. A Mississippi criminal defense attorney can help because it is often a very defensible case. Because it deals with the action (or inaction) of a driver, the law only requires that a person comport with the rules of the road in order to avoid a conviction for Leaving the Scene. Since the facts of the case almost always involve an accident between two cars (there is some question as to whether or not a one car accident could give rise to this claim- more on that below) there is chance that one of the parties involved will lie to police. In my client's case, the complaining victim had lied about what happened in the collision in an effort to harm my client.

There is a very simple way to avoid ever worrying about being charged with Leaving the Scene of the Accident and my client had the good sense to do it and that (more than anything I did) is what got her charge dismissed by the court. My client called the 911 and asked the dispatcher what she should do. My client was faced with a difficult situation. She had not been involved in a collision but the other car's driver in an effort to harass my client had lost control and careened off the highway. The cars never collided, but there is an important terminology everyone should know about the statute involved. The language of the statute says "after being involved in an accident..."

The State of Mississippi has never had a case wherein a person has been convicted of Leaving the Scene of a one car accident, except of course when the driver injures the passenger's and then runs off. However, the statute implicitly recognizes that a person could run someone off the road or otherwise "be involved" in an accident without actually having collided with another car. Those cases have occurred in other states and other states have held that a person can be convicted even if they never collided with another car as long as there is evidence to prove that they knew they had been involved in the accident.

What you should take away from this is that you should always call 911 when there is a accident near your car. Of course, I do not mean every little fender bender. Even where you are scared of the other driver for some reason, or (as in my client's case) you know the driver and know that the driver wishes to hurt you, call 911 and the dispatcher will give you instructions. That conversation will be recorded and if you follow her instructions you will be able to avoid a conviction for Leaving the Scene of an Accident.

The Supreme Court will be hearing a very important case in the area of criminal defense. Criminal defense attorneys in Mississippi and through out the country will be watching this case closely because it could drastically alter the legal limits of police intrusion into the people's private affairs. Should the court decide these cases in favor of the government, we may see police forces around the nation employing new search techniques and becoming more and more intrusive. As in most cases, the question before the Supreme Court is deceptively narrow: Is a dog sniff at the front door of a suspect's house a "search" under the Fourth Amendment thus necessitating that the law enforcement officers obtain a warrant before taking that action.

The jurisprudence in this area of law is complex and the analysis used to determine the outcome of a case depends upon specific facts of the case. This is an overview of the law in this area that should give the reader a basic understanding of the case law and allow them to understand the Supreme Court's decision, when it is handed down. The general analysis for determining if there has been a "search" under the Fourth Amendment was announced in Katz v. United States, 389 U.S. 347 (1967), the Supreme Court provided that a "search" occurs when a person expects privacy in the thing searched and society believes that expectation is reasonable. The language "intrusion into seclusion" and "reasonable expectation of privacy" is often used.

The Supreme Court has already previously reasoned that a dog sniffing a person's bag or car is not a "search" under the Fourth Amendment. The rational for this ostensibly absurd result is a line of jurisprudence that analyzes Fourth Amendment issues backward by beginning with the subjective expectation of privacy that the defendant had in the thing that was searched. The analysis then goes on to ask if that subjective expectation was reasonable. When this analysis is applied loosely, we see Supreme Court cases holding, "Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." United States v. Jacobsen, 466 U.S. 109 (1984).
In United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), The Court held that a dog sniff that "discloses only the presence or absence of narcotics" and it does "not constitute a 'search' within the meaning of the Fourth Amendment." If one only looks at that language from Supreme Court precedent, it appears that this dispute has been settled. However, Place dealt with a dog sniffing a car and in other cases involving non-intrusive methods of disclosing the presence or absence of narcotics (or in layman's terms "searches") in a person's home, the court has been much more respectful of the individual's right to privacy.

The following language from Kyllo v. U.S. 533 U.S. 27, 121 S.Ct. 2038 (US 2001) reveals that the court is very hesitant to make exceptions to the warrant requirement when a home is being searched:
"in the case of the search of a home's interior--the prototypical and hence most commonly litigated area of protected privacy --there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment"

Within the case law involving the search of an individuals residence (and the general case law in this area) there is also a focus on technology and whether or not the technology is so common that a person is reasonable to think that their privacy is not in danger of being invaded by it. Thus, because planes are common it is not reasonable to think that an aircraft might fly over your property and thus place your backyard in plain view of the law enforcement officers in the aircraft. However where technology is newer like radio imaging or heat imaging to peer through walls, the court has found that people reasonably believe that their effects are secluded from this type of intrusion. see Kylo supra. The court has not been willing to call dogs this kind of new specialized technology. Even though technical language is used to describe these dogs that have had highly specialized training and must be used in a particular way by trained master. As an example, they are referred to as "canine units" which seems to suggest an uncommon level of sophistication for a domesticated animal.

In my humble opinion, all of this misses the larger issue. The law in this area is in dire need of revision. There are so many exceptions to the Fourth Amendment that it is hard to see what law enforcement officers cannot do when they are determined to search someone's person or effects. If the court allows warrantless canine unit searches (and that is what they are searches) of people's residence without a warrant, we will not doubt see police forces around the country adopting more intrusive policies. The Fourth Amendment was adopted to help the government manage its surveillance program. The Fourth Amendment was enacted to give the people the freedom to decide what they wanted to conceal from the world. Instead of using clever semantics and and logic to wear down the protections of the Fourth Amendment, the court should take the opportunity to set a new course for Fourth Amendment law. It should find a way to forcefully protect the peoples right to be free from unreasonable searches (those without a warrant) rather than merely use the law to police an aggressively intrusive policy of law enforcement. The court should endeavor to use the law to give people back the liberty that the Fourth Amendment protected for nearly two centuries.

The Mississippi Legislature has amended the DUI Statute (Ms Code § 63-11-30) to make driving while under the influence of alcohol or other another controlled substance with a child under the age of sixteen (16) a separate crime. Criminal Defendants facing DUI charges can now potentially be charged with the newly established crime of Endangering a Child by Driving Under the Influence. The law as amended became effective on July 1, 2012 and is currently in effect.

Just like the previously established DUI offenses, endangering a child by DUI has progressively harsher punishments depending upon the number of prior DUI convictions on the defendant's record. The law as amended does not require that the child be injured nor does it require the State to prove any higher level of culpability or causation. In order to be convicted of the new offense, the State need only prove that the defendant was "transporting in a motor vehicle a child under the age of sixteen" at the time the underlying DUI was committed. There is no requirement that the defendant know the persons age in order to be convicted under the amended law.

Most importantly, the law states that the new offense of endangering a child by DUI shall not be merged with the underlying DUI. This means that the penalties for violation of the new law are added to the penalties suffered for the underlying DUI. For instance, for a first offense DUI a defendant my be sentenced to up to two days in jail. If that same defendant has a child under the age of sixteen in the car with him, the maximum sentence length for that defendant will be one year and two days. That is because endangering a child by DUI carries a maximum sentence of twelve months for a first offense and the amendment of the law specifically prohibits the prosecution or the judge from joining the two offenses. Notice that every conviction of endangering a child by DUI will necessarily have a correlating conviction for DUI. Thus, upon a criminal defendant's third conviction for endangering a child by DUI, the defendant will be sentenced to a minimum of two years in prison and will be fined a minimum of $12,000.

I have been asked to update the blog post regarding Miller v. Alabama (US 2012), the recent US Supreme Court decision regarding mandatory life sentences for juvenile criminal defendants convicted of capital murder. There is some question about whether or not the decision will be applied retroactively. If the decision applies retroactively, the State of Mississippi would be required to give new sentencing hearings to all defendants who were given mandatory sentences of life without parole for crimes committed while they were juveniles.

As noted in the last blog post, State Attorney General, Jim Hood, believes that the Miller decision will not have a large impact for juveniles that have already been sentenced to life without the possibility of parol due to the mandate of the parol statute (Ms Code § 47-5-138). This implies that Jim Hood does not believe that the Miller decision will be applied retroactively. The US Supreme Court did not provide a clear answer in its decision and previous case law does not provide a clear answer. Thus, there will be litigation on the issue of Miller being applied retroactively and the Court may be required to decide the issue in a future case.

In Scriro v. Summerlin, 124 S.Ct. 2519 (US 2004), the US Supreme Court provided the analysis of this issue. The opinion was written by Justice Scalia and it declined to apply the new rule that the decision to impose the death penalty must be made by a jury, calling that rule procedural. The analysis turns on the categorization of the new rule. In short, a "new rule" announced by the Court is retroactive if it is a substantive rule and prospective only if it is a procedural rule. A new rule is substantive if it places particular persons or conduct covered beyond the State's power to punish. However, a rule is merely procedural if it does not produce a class of persons convicted of conduct the law cannot make criminal (under the new rule). A procedural rule may still be given retroactive effect if it falls into the small category of "watershed rules of criminal procedure" implicating fundamental fairness and accuracy of the criminal proceeding.

The rule announced in Miller v. Alabama (US 2012) can be viewed as both procedural and substantive under this analysis. The new rule is procedural in that it requires an individualized sentencing hearing for juveniles convicted of murder. The new rule is substantive in that it struck down mandatory provisions of state law, which places particular persons (juveniles convicted of murder) beyond the State's power to punish using mandatory sentencing schemes. This issue will undoubtedly be litigated and if decided by the Supreme Court would likely result in a five to four decision. The question is whether Justice Scalia writes the dissent or the opinion.

Justice Scalia would undoubtedly decide that the rule announced in Miller should not be applied retroactively because it is procedural because it requires a specific procedure and does not in anyway affect the accuracy of the trial's finding of guilt or innocence. The correct decision is to say that the rule applies retroactively. The rule that juveniles cannot be subject to mandatory life without parole removes that class of persons from the State's ability to punish them under that mandatory scheme. In essence, the rule is that state statutes providing for mandatory sentences of life without parol are unconstitutional as applied to juveniles. It strikes down the substance of a statue as applied to juveniles and implicates the fundamental fairness dictated by the eighth amendment. While it is true that the rule has procedural implications (i.e. the need for a sentencing hearing), it deals with the substantive law that limits the power to punish given to the states. It is therefore correctly viewed as a new substantive rule that has procedural effects. It should be applied retroactively, so that all inmates and not just new ones will have been sentenced in accordance with the constitution of this land.

Cuccia v Cuccia -- So.3d-- MS 2012, a recent decision in the area of family law and custody determinations, was delivered by the Supreme Court of Mississippi on June 28, 2012. The Court wrestled with many family law issues related to divorce but an interesting part of the decision dealt with one spouse's ownership of large breed dogs and specifically a pit bull. The facts of the case in large part turned upon the wife's dog rescue operation, which she ran out of her home. She took it upon herself to rescue and care for Rottweilers and Pit-bulls inside the marital home. This upset her husband so much that he sought a divorce. At one point he amended his divorce complaint to be based on the grounds of habitual cruel and inhumane treatment, claiming that the insistence of his wife to keep the Rottweilers and Pit-Bulls in the marital home against his objections constituted cruel treatment under the law. While the two later consented to an irreconcilable differences divorce and submitted the issue of custody of their minor children (among other issues) to the Chancery Court's discretion, the dog issue loomed over the case.

The Chancery Court concluded that although both parents were appropriate custodial parents under the Albright factors, the children would be best served by granting sole legal and physical custody to the mother. The Court of Appeals reversed, awarded joint custody and enjoined the mother from allowing dogs of any kind to roam loose or occupy any portion of her residence utilized by the children. The Appellate Court directed the department of human services [DHS] to investigate the cleanliness and safety of the mother's home and provide the report to the chancery court in order that it may reconsider the issue of the fitness of the mother's home. The Supreme Court of Mississippi granted certiorari and affirmed in part, reversed in part, and remanded parts of the appellate court's decision.

Without going too far into the specific factual contentions of this case, it is important to note that at the appellate stage there was confusion as to whether or not DHS had already found the mother's home to be safe. The Supreme Court found that there indeed had already been an investigation by DHS and the investigation had found no problems whatsoever with the mother's home. Thus, the Supreme Court reversed the Appellate Court's injunction and stated that the Chancery Court need not revisit the issue on remand. The Court reversed in part, but upheld the overturning of the Chancery Courts grant of sole custody to the mother but reversed the court of appeal's grant of joint custody. The Court reasoned that while joint custody is presumed and there is no custody presumption favoring the mother, joint custody should only be granted where the parties are able to behave amicably so that a joint custody situation is in the best interest of the children. The Court remanded the issue of custody to the Chancery Court to determine if the parties had become too acrimonious for joint custody to be feasible.

An import thing to note about this case is that The Supreme Court of Mississippi says in dicta (meaning not part of the holding) that, "the Appellate Court's concerns about the safety of the children are laudable" and the opinion relies on the existence of a DHS report indicating that the mother's home is safe. This means that court's should consider the effect of dog ownership on the safety of the children. If you are involved in a custody dispute in Mississippi and you own Pit-Bull's, Rottweilers or other large breed dogs, then you may find yourself at the mercy of a DHS report. The mother in this case ran a rescue operation. That means she most likely had taken very strong security measures. Society has differing opinions about the threat that dog breeds pose, especially to children. There is no way of knowing the opinions of your county's chancellor or those of the DHS employee investigating your home. In all custody determinations, the best interest of the child is paramount and potential threats to a child's safety posed by household pets are a legitimate factor for the court to consider.

JUVENILES CRIMINAL DEFENDANTS NOT SUBJECT TO MANDATORY LIFE SENTENCE

Criminal defendants in Mississippi who are juveniles are no longer subject to mandatory sentences of life without parol. The Supreme Court recently held in Miller v. Alabama, (US 2012) that the 8th Amendment, which forbids cruel and unusual punishment, prohibited the application of mandatory sentencing schemes that require a life without parol in cases where a juvenile criminal defendant is being tried as an adult because the result in those cases is the absence of an analysis of the individual culpability of the defendant as a juvenile. The Supreme Court reversed the high courts of Alabama and Arkansas. Both of those state courts held that mandatory life sentences for juveniles was not violative of the 8th Amendment's prohibitions.

According to State Attorney General, Jim Hood, the Miller, decision does not have a large impact for juveniles that have already been sentenced to life without the possibility of parol due to the mandate of the parol statute (MS § 47-5-138). Jim Hood's comments and a brief synopsis of this story can be found in the article titled New Teen Sentences Likely article which recently appeared in The New Republic. The Mississippi Supreme Court announced that life in prison without the possibility of parol is mandatory (even for juveniles tried as adults) convicted of capital murder in Puckett v Abels, (MS 1996). In Puckett,the State high court held that the parole statute as amended made life sentences without the possibility for parol mandatory in capital murder cases where the death sentence was not imposed.

The Supreme Court in Miller, (supra) has declared such a mandatory sentence imposed on juvenile defendants unconstitutional and in violation of the 8th Amendment. In that case, the state courts argued that the juvenile defendant's particular circumstances such as his/her age, maturity, history, and the specifics of their crime are analyzed by the justice system when it decides whether to transfer the child out of juvenile court to be tried as an adult. This argument fails to recognize that the decision to try a juvenile as an adult is often left to the prosecutor and some states even have mandatory transfer statutes. The Court rejected it.

The Supreme Court said that children are constitutionally different then adults due to a multitude of factors affecting their culpability. They are more susceptible to social pressures and are more impulsive than mature adults. Juveniles can have more struggles when trying to escape from dangerous circumstances. There are many factors that distinguish a child's culpability from that of an adult. A child's actions are less likely to evidence what the Court calls "irretrievable depravity."

Also, the Court notes that children have an increased potential for change and their crimes may be the result of a mere transient immaturity. The Court's opinion requires an evaluation of a juvenile's culpability during the sentencing phase, considering all factors affecting juvenile culpability. This evaluation must occur in the sentencing phase. The mere fact that a state provides for judicial discretion in the decision of whether or not to transfer a juvenile to adult court is not sufficient. This is the case in Mississippi. The Court held that the mere fact that a judge decides where a juvenile will be tried based on the limited evidence available before trial will satisfy the 8th Amendment's requirements.
The Miller, opinion does not say that children were incapable of committing horrible crimes with the requisite culpability to warrant life in prison without the possibility of parol. The crimes committed in the cases at issue were absolutely horrendous (as you can read in the court's full opinion). The opinion reads:

The Miller, opinion is a well reasoned opinion given by the Supreme Court. In a country that is all too often concerned with handing out the severest punishments possible in an effort to be tough on crime. While public safety is a legitimate goal for any society, in a democracy officials have to worry about reelection and they often boast proudly about the severe punishments they give to criminals. Many candidates have lost their bid for office because their opponent has branded them soft on crime. Punishment is a necessary part of any justice system, but the 8th Amendment protects the citizens from punishments that do not fit their crime. The Court has in this opinion done a laudable effort at requiring that the justice system take the time to discern a young persons culpability even when that task is difficult because of the different natures and maturity of young people. Punishments must be linked to culpability. Hopefully, the state legislatures in this country will do away with mandatory penalty schemes and place the determination of culpability and the appropriate punishment back into the hands of our justice system. In this way, every individual, not just juveniles, will be judged and punished according to their degree of fault.

EXTERNAL LINKS:

AG Hood: New teen sentences likely: The New Republic (June 27, 2012)

Miller v. Alabama (US 2012)

The fourth amendment grants every citizen the right to be free from unreasonable searches and seizures. Whether or not a visual strip search, in which a person is made to remove all clothing and squat down exposing exposing every orifice of their body, in jail violates the fourth amendment is a matter of great contention. The Supreme Court has not pronounced a hard line rule on the matter. The fifth circuit's previous case law requires "reasonable suspicion" in order to conduct such a search in cases where the detainee is arrested for a minor offense and will be bonded out before joining general population. However, the fifth circuit's most recent case law seems ready to overturn that rule based on a Supreme Court case decided earlier this year.

The reasonableness of a search is the deciding factor in all fourth amendment cases of this type. While it might seem completely logical that having a member of ones community search every orifice of one's body for something as minor as a traffic violation is unreasonable, the Supreme Court has refused to say this. In fact, as the case law excerpts provided below show, the extent of one's liberty rights in this area is completely unclear.

In Florence v. Board of Chosen Freeholders of County of Burlington, 123 S.Ct. 1510, (US 2012). The Supreme Court of the United States recently held in April of this year that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers. Of note is that the court did not hold that only arrestees who are committed to general population may be subject to such a strip search. Nor did the court decide to require that the administrator have a reasonable suspicion to conduct the strip search (as other federal circuit courts have).

The Fifth Circuit Federal Court of Appeals, which has jurisdiction over Mississippi, has "Jail officials may strip search a person arrested for a minor offense and detained pending the posting of bond only if they possess a reasonable suspicion." see Kelly v. Foti, 77 F.3d 819, 821 (5th Cir.1996). However, in Jimenez v. Wood County, Texas, 660 F.3d 841 (5th Cir. 2011) the fifth circuit declined to reaffirm that position. In its ruling, which turned on a procedural issue involving jury instructions, the fifth circuit did not reaffirm the need for reasonable suspicion in order to strip search a minor offender detained pending bond. Instead it mentioned the Florence case, which at the time had not yet been decided by the Supreme Court, and concluded that it was not plain error to say that reasonable suspicion was required during such detentions. Thus, the Fifth Circuit could easily overturn its precedent and without contradicting the Supreme Court rule that strip searches are allowed even for minor offenses without reasonable suspicion.

Under Mississippi family law, there is a kind of tug and pull between the notion that it is good for a child to have a strong relationship with their grandparents and the fundamental constitutional right of all parents to decide how to raise their children and who will be allowed to influence their children. There is no doubt that that parental rights are primary while grandparent's rights are secondary. As you will see below, the law in Mississippi only permits a grandparent to seek visitation with their grandchildren when their child (the parent of the grandchild) has in some way been denied full custody of that child. This can happen through the grandparent's child losing custody, having their parental rights terminated or death of the custodial parent.

Each of those situations described above results in the grandparent's child not having full custody rights and thus not being able to simply allow his or her parent's to see their grandchild. It is only in those circumstances that the grandparents may petition a court in Mississippi for visitation with the grandchild. In order for the request to be granted they must show that such visitation is in the best interest of the child. The best interest of the child is the polestar for all custody and visitation determinations, but for grandparents the court will look to see if there a viable relationship has formed between the grandparents and the grandchild when making its determination.

This very limited view of grandparents rights leaves many grandparents dumbfounded. Especially when, as happens in many cases, the grandparents have been providing a great deal of monetary support to help raise the grandchildren. How can it be that the courts will not recognize their vested interest in seeing their progeny is properly raised? Parents and grandparents often do not agree on what is best for the child. They may have religious differences. They may disagree on what is suitable punishment or what kind of behavior should be demanded of a child at a certain age. The Supreme Court of the United States says that the parent's liberty t to raise one's child as they see fit is a fundamental right granted by the constitution. It is not the prerogative of state courts to intervene and decide what is best for the children in the area of grandparent visitation.

The most important case for the issue for the rights of grandparents to exercise visitation with their grandchildren is Troxel v. Granville, which was decided by the US Supreme Court in 2000. In Troxel, the grandparents sought visitation rights to their grandchildren after the children's mother had limited their visitation to one short period per month. A Washington State statute said that any person could petition the court for visitation rights at any time and the court could order such visitation if it was in the best interest of the children. The Washington court's granted the grandparents visitation rights. The US Supreme Court held that the application of the statute in that case was unconstitutional because it violated the due process rights of the parent to make decisions regarding the care, custody and control of their children. Note that it did not hold the statute was unconstitutionally invalid but only that its application in this case was unconstitutional.

O'Connor's majority opinion in Troxel stated that the liberty interest of parents in the care, custody and control of their children is perhaps one of the oldest of the fundamental liberty interests. This is important because states actions are strictly scrutinized when they infringe on a person's fundamental rights. In Troxel, the court found that the trial judge had not given enough weight to the parent's decision to limit the amount of grandparent visitation. Moreover, the Washington state courts had suggested that the grandparent's requests would be granted unless the custodial parent could show that child's interest were adversely affected (because the court presumed that it is always better for children to spend quality time with grandparents). The US Supreme Court in Troxel stated unequivocally that the state may not supplant its own judgment in place of the custodial parent as to what is better for the child when it comes to visiting third parties, grandparents included. The Mississippi Statute was mention in Troxel. This fact led to legislative amendments and decisions by the Mississippi Supreme Court detailing how the statute should be applied to cases involving visitations rights for grandparents.

Miss. Code Ann. § 93-16-3
Title 93: Domestic Relations
Chapter 16: Grandparent's Visitation
§ 93-16-3. Eligibility to petition; venue; fees

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child's parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and

(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

(3) For purposes of subsection (2) of this section, the term "viable relationship" means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.

(4) Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to the child has previously been entered. If no custody order has been entered, then the grandparents' petition shall be filed in the county where the child resides or may be found. The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney's fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney's fees to the parent or parents of the child and court costs regardless of the outcome of the petition.

In Settle v. Galloway,42 the Supreme Court quoted the statute on grandparent visitation to say that such might be granted:
(1) Whenever a court of this state enters a decree or order awarding custody of a minor [that would be in Mississippi until the age of 21] to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child's parents who was not awarded custody or whose parental rights have been terminated or who has died may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the Chancery Court in the county in which the child resides, and seek visitation rights with such child.
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the Chancery Court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child."

in Martin, the Supreme Court of Mississippi then issued the following "factors [that] should be considered by the chancery court in determining grandparent visitation," and said that "no one should be weighed more heavily than the others"
1. The amount of disruption that extensive visitation will have on the child's life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents' home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents' home from the child's home.
8. Any undermining of the parent's general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent's manner of child rearing is not to be interfered with by the grandparents.

The Mississippi Supreme Court's decision in In re Hooker et al, which ruled on the State's challenge to the recent gubernatorial pardons, reads like a civics lesson directed to State Attorney General Jim Hood. From the very beginning of the 6-3 decision written by Justice Dickinson, the court refers to Mr. Hood's oral argument. The court was apparently not impressed by Mr. Hood's arguments and took the opportunity to correct the wayward attorney general's understanding of the role of the judicial branch in our system of government. The court held that the constitutional provisions on the separation of powers between the three branches of government did not allow the court to review the constitutionality of the governor's pardons. The court held:

"The controlling issue is whether the judicial branch of government has the constitutional authority to void a facially-valid pardon issued by the coequal executive branch, where the only challenge is compliance with section 124's publication requirement. No Judicial duty is more central to the proper operation of our system of government than is our duty to decide this issue correctly. In carrying out this duty, as we must, and respecting the clear constitutional provisions that separate our powers from the governor's powers, we are compelled to hold that - in each of the cases before us - it fell to the governor alone to decide whether the Constitution's publication requirement was met."

In this attorney's opinion, the Mississippi Supreme Court's holding was not only legally correct but also necessary in order to uphold the rule of law by not giving into the public sentiment of outrage brought about by the attorney general's manipulation of the media in order to sensationalize the issues in the case. We are a nation of laws and neither pressure from the media, public sentiment nor the sentiments of the attorney general should control the outcome of a case. Attorney General Hood's challenges to these pardons were based on his own personal opinions and backed by public sentiment against convicted criminals. The publication requirement was nothing more than a legal technicality.

Does anyone really believe that Jim Hood wanted to overturn the pardons granted by the former governor because he was appalled that the newspapers had said nothing about the pardons until after they were granted? It is obvious that Mr. Hood's own personal views on justice were the impetus for the challenges and the publication requirement was the only legal argument he had. The court's opinion clearly shows that the court has a much greater respect for and understanding of the law than does the attorney general.

The opinion of the court amounts to a recitation of the most basic concepts of constitutional law. It is as if it felt obliged to explain the essential nature of this countries system of government and the role of the judiciary therein. The first case the court cites Marbury v Madison, which is one of the first cases that every law student in this country studies because it is the first case in which the United States Supreme Court explained the boundaries of its jurisdiction and the importance of the separation of powers. The case explains what is justiciable [subject to judicial review] and what is not.

The court in Marbury held that it could not force James Madison, Secretary of State under President Thomas Jefferson, to deliver commissions signed by John Adams just before leaving office. The court reasoned that while the commissions were valid, their delivery was clearly within the powers given to the executive and thus the issue of their delivery was non-justiciable [outside of the Supreme Court's original jurisdiction]. Every attorney is familiar with the Marbury Case and it does not speak well of Mr. Hood's legal acumen for such a publicized case to be decided on such a simple legal principle.

Mr. Hood's competence aside, the court was right to decide the case based on the jurisprudence following Marbury. As I said in my earlier post on this subject, to allow the judiciary to review an executive check on the judicial branch is counterintuitive and that is exactly what the court said was the problem with reviewing the pardons. The court cited the case of Nixon v US, which involved impeachment but not of president Nixon. It involved the impeachment of a federal district court judge named Nixon. In that case, the U.S. Supreme Court held:

Judicial involvement in impeachment proceedings, even if only for the purposes of judicial review, is counterintuitive because it would eviscerate the important constitutional check placed on the judiciary... (because it would) place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process was meant to regulate.

Turning to Mississippi jurisprudence regarding justiciability, the Mississippi Supreme Court then compared Mr. Hood's arguments very similar to those made inEx parte Wren., a case decided over 120 years ago in 1886. In the Wren case, the Mississippi Supreme Court held that the state courts should not review legislative procedure in passing laws because the legislators themselves take an oath to uphold the constitution in passing laws. It is the purview of the state courts to decide whether the provision of laws are constitutional. However, whether or not the legislature comported with procedural requirements provided for in the constitution was a non-justiciable issue and could not properly be reviewed by the court.

The court went on to cite Mississippi case law that I included in my last post on this topic, which clearly states that the power to grant pardons is entrusted to the governor alone. The following excerpt from Pope v Wiggins cited by the court is exactly on point:

Under §124 of the Constitution (of Mississippi) of 1890, the power to grant pardons and to otherwise extend clemency, after the judicial process whereby one has been convicted of a crime has come to an end, is vested in the governor alone... This power is no tlimited by any other provision of the State constitution, nor can the same be limited or restricted by either of the other two principle departments of the state government (the Judiciary or Legislature) in the absence of a constitutional amendment so authorizing.

What needs to be understood is that the court agrees with Mr. Hood that §124 places limitation on the governor's pardon power. However, the separation of powers doctrine places limitations on what the courts have the authority to review and it has long been held at both the state and federal level that the courts may not investigate the inner workings of other branches of government to determine whether procedural requirements are met. To say otherwise would create a super powerful judiciary with the power to review and overturn any and all actions of the legislature and executive. Our system of government places the obligation to uphold the constitution on all of the branches in exercising their powers. The court must respectfully defer to the other branches of government where they have clearly been granted powers under the constitution.

It can be assumed that Mr. Hood spent a great deal of time and resources on this case. The case was highly publicized with Mr. Hood front and center in the media spot light where he successfully influenced public opinion by sensationalizing the facts and referring to non-existent "nationwide man hunts." Mr. Hood wanted this case tried in the court of public opinion because the issues involved have been decided for more than 100 years (more than 200 years if one considers Marbury v. Madison as the basis for the decision). The Mississippi Supreme Court did well to ignore public opinion and uphold the rule of law. The court also provided a public service by explaining this country's system of government to Mississippi's attorney general. We all should hope that he was paying attention.

The pardons granted by former Mississippi governor, Haley Barbour, just before leaving office have become national news. They are being challenged by the current State Attorney General, Jim Hood. The Attorney General is challenging the gubernatorial pardons on the grounds that most of the 198 pardons do not comply with the provision of the Mississippi Constitution[1] that states that no pardon shall be granted to a convicted felon who applies for a pardon unless the applicant first publishes the pardon application and reasons for seeking the pardon.

Executive pardons are not a new phenomenon. Both nationally and regionally, the ability of the executive to pardon has been a part of the governments' system of checks and balances from the beginning. The founders granted the executive the ability to pardon as a check on the power of the judiciary. They understood that this executive power was necessary because no judicial system is perfect. The pardon power provided a vehicle for the government to extend clemency and correct wrongful convictions and sentences. This was not scandalous in the early part of the nation's history. It was seen as necessary to have a kind of last resort protection for citizens. So, just as the president is given the power to pardon in the nation's constitution, most of the states have a similar provision granting the same power to their executive.

The pardon power was granted to the executives and pardons were and have historically been granted by executives. It is customary, especially in the south, for governors to grant pardons to prisoners, who for good behavior or some other equitable reason are seen as deserving a second chance after serving part of their sentence. One recent example is former governor of Arkansas, Mike Huckabee, granted over a thousand pardons while he was in office. Gubernatorial pardons are a time honored institution in this country and they are specifically meant to check the power of the judiciary.

As in the federal system, Mississippi uses a system of checks and balances. The system of checks and balances ensures that no one branch of the government will have too much power. The judiciary exercises the power of judicial review as an important and powerful check on the power of the legislature and of the executive branches. The writ of habeas corpus is a good example. Habeas allows the judiciary force the executive to bring the person to court and acts as a check on the executives power to imprison. It would not make sense to allow the executive to review a judges decision to grant a writ of habeas corpus. The executive can challenge the granting of a writ of habeas corpus, but the judiciary has the final say not the executive. The suspensions clause of the federal constitution provides that habeas cannot be suspended executive.

That makes perfect sense because if the executive could review the judiciaries habeas decisions, then the writ of habeas corpus would not be a check on the executives power at all. The delicate balance of power is maintained by allowing each branch of government to act as sovereign in their separate functions of governance. The power of the judiciary is checked by the executive through the exercise of the power to pardon the people that the judiciary imprisons. Just as it does not make sense for the executive to review habeas decisions, it makes no sense for the judiciary to review executive pardons. To allow judicial review of pardons would make the executives pardon power ineffective and disrupt the balance of power. In other words, executive pardons are properly viewed as non-justiciable. This position is supported by case law.

In the case of Ex Parte Fleming the Mississippi Supreme Court held that the governor could suspend or delay the execution of a sentence because that power was part of the power to pardon. The Mississippi Supreme Court said in Fleming that "He [the governor] has the unlimited and unrestricted power to pardon." Ex Parte Fleming. 60 Miss. 910 (MS 1883). In Montgomery v. Cleveland the Mississippi Supreme Court said, "Of course, he [the governor] is the sole judge of the sufficiency of the facts and of the propriety of granting the pardon, and no other department of the government has any control over his acts or discretion in such matters. Nevertheless he acts for the public. He dispenses the public mercy and grace; the efficacy of the pardon flows from the sovereign." Montgomery v. Cleveland, 98 So. 111, 113 (MS 1923).

Both the United States and Mississippi conceived of the executive's power to pardon as being solely within the discretion of the executive and not reviewable by the judiciary. Jim Hood is fighting the traditional view of the system of checks and balances and power of the executive to grant pardons. He is able to do this by feeding the media a story about killers on the loose and national man-hunts. The media is all too ready to sensationalize the story. The media appears paralyzed and unable to ask any questions critical of the Attorney General's attack on this country's system of government or even question him on his misleading statements. Instead the media acts as a bullhorn for the Attorney General, who completely controls the story line. The story is now about the sentiments of the public about murder rather than the protections and benefits that the pardon power provides.

The result is that the public only receives information that evokes angry sentiments towards the criminals and the crimes that they committed. The fundamental issues of law are misunderstood or ignored. To be fair, I have attached a spreadsheet containing a list of all of the pardons and the actual signed documents, so that you will have the facts to rely on and not the sensationalized version of things being presented. No matter how one feels about the individual pardons, it is clear that under the current law and case precedent in Mississippi, pardons are within the sole discretion of the governor. If we are a nation ruled by laws then the Mississippi Supreme Court should not review the governor's pardons because the issue is not justiciable.

The Mississippi Supreme Court has an opportunity to establish a bright line rule that executive pardons cannot be reviewed by the courts, but that is not what they will likely do. Either because of human nature, political ideology, both, either or neither, I think that the court will at least partially accept Jim Hood's argument that the failure of some of the pardons are invalid for failure to meet the technical requirement that the applicant publish his application. The court will have to provide some rational for exercising subject matter jurisdiction over executive pardons and I think that they will provide us with some clever language to conclude that they are not reviewing the decision of the governor. The court will likely conclude that the pardons are null because they failed to comply with the publication requirement. Thus the court can conclude that they are not intruding on the governor's sole authority to decide when to grant a pardon, but merely saying the decisions are ineffective because they clearly did not comply with a simple reading of the constitution. The prisoner can apply for pardon again and the executive can again make a decision without the judiciary having intruded one step into the executives sphere of sovereignty.

This attorney hopes the court can keep the faith in our system of government even in the face of pressure from the public and media, not for the sake of the convicts, but to protect the rule of law. No matter what happens in the case of these individual pardons, the executive still needs the authority to pardon people without any interference by the courts whatsoever. This is a fundamental protection provided by the checks and balances on power that have been in place and protecting the citizenry for centuries. Attorney general Hood knows as well as everyone else that this case has nothing to do with the publication of applications for pardons. It has everything to do with whether or not the governor's power to pardon will be respected. It always has in the past and this case could set a bad precedent by interfering with executive pardons. I hope the court does not do that and decides to correctly rule that no court has any business reviewing executive pardons.


[1] MS Const. Art. 5, § 124

pardons-barbour-1-10-2012.pdf

For my blog, I invite my clients and anyone else to suggest or request that I blog on particular issues related to the laws in Mississippi, Louisiana or federal laws. I recently received a request for a family-law blog entry on the factors used to determine child custody in Mississippi.

In Mississippi, family-law matters are handled in chancery court with is presided over by a chancellor. "The paramount and ultimate goal in every child custody case must be the best interests of the child." In re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424 (Miss. 2009). Thus, the overriding factor in every custody case in Mississippi is "the best interest of the child."

All other factors considered by the chancellor are aimed at determining what is in "the best interest of the child." The factors considered by the chancellor in his or her determination of "the best interest of the child" are enumerated in the Supreme Court of Mississippi's ruling in Albright v. Albright, 437 So.2d 1003 (MS 1983). [hereinafter Albright Factors]

The Albright Factors are as follows:
(1) The age, health and sex of the child;
(2) Which parent had continuing care of the child prior to separation;
(3) Which parent has the best parenting skills;
(4) Which has the willingness and capacity to provide primary child care;
(5) Employment responsibilities of both parents;
(6) Physical and mental health and age of parents;
(7) Emotional ties of the parent and child;
(8) Moral fitness of the parents;
(9) Home, school and community record of the child;
(10) Preference of the child at the age of 12;
(11) Stability of the home environment and employment of each parent, and
(12) Other relevant factors.

Albright v. Albright, 437 So.2d 100.pdf

I will start with the caveat that this article does not advance any political view or social view for that matter regarding same-sex marriage. Civil Rights Litigation is something that I very much want to be part of The Coon Law Firm, PLLC and civil rights is certainly an interesting topic to blog about. I am but one attorney in Jackson, MS and my opinion counts as just one opinion in a sea of opinions. Those collective opinions become important when states like California hold a referendum on a civil rights issue.

California's judiciary legalized gay marriage and then the voters reversed the judiciary by voting in favor of Proposition 8 or "prop 8." Prop 8 defined marriage as the union of a man and a woman and ended same-sex marriage in California. Same sex marriage licenses are available in six states, Washington DC and two indian reservations. In none of those places, beginning with Massachusetts in 2004, was same-sex marriage passed through a statewide vote. Same-sex marriage has been voted on thirty one times and each time a majority of voters have voted against allowing same-sex marriage. Popular opinion, however, has not always shaped the law in the area of civil rights.

The civil rights movement is a good example of when popular opinion was usurped by what government officials deemed to be fair. A referendum reveals the purest picture of American Democracy because it removes the representative aspect of the government. It is hard to argue that the will of the people has been established thirty one to zero in favor of rejecting same-sex marriage. The Supreme Court will no doubt consider public opinion when it decides two large cases involving same-sex marriage. The court will not likely favor elitist legislatures to impose laws without regard to the prevailing opinions among their constituents. Nor will it likely show deference to what it could see as activist judges creating fundamental civil liberties based on their own philosophical view-points.

One of those cases is Perry v. Schwarzenegger. That case is on appeal to the Supreme Court after the 9th Circuit Court of Appeals ruled California's proposition 8 unconstitutional under both a substantive due process and an equal protection analysis. That ruling suggests that proposition 8 is unconstitutional under any standard of review for state laws. As does Gill et al. v. OPM. The Gill Case involves The Defense of Marriage Act (DOMA), which is a federal law as opposed to the state law involved in Perry. In Gill, the 1st Circuit Court of Appeals held DOMA to be unconstitutional because it failed to pass even a rational basis analysis.

The Supreme Court is thus faced with a same-sex marriage case involving a state law and a case involving a federal law. The Supreme Court will certainly be setting a precedent and will have to way the dictates of American Democracy against the civil rights of a minority. It will likely look to recent and pending developments in state law. Public opinion is tricky because by looking at the thirty one to zero score in popular votes one gets the impression that public opinion is against same-sex marriage. However, polling indicates that for the first time a majority of all Americans are in favor of same-sex marriage. Also, the percentage of American's supporting same-sex marriage has been rising dramatically and consistently for more than fifteen years. (see the Gallup Poll) .

This humble attorney will update this blog when the highest court in the land rules on these cases, but CNN will more than likely beat me to the punch. We do the best we can with what we have at the Coon Law Blog. Your attorney believes that the court will hold rule that both DOMA and Proposition 8 are constitutional but will decide the issues as narrowly as possible in order to leave room for change in this area of civil rights. It is not likely that the court take the position that the government has no interest in banning same-sex marriages and thus the laws will pass rational basis scrutiny and be held to be constitutional. Effectively providing two momentous decisions that do nothing. The state of the law will not change and the issue will still be fought out through referenda and legislative sessions throughout the several states. It will not be a death blow to either side of the debate and the public discourse will continue as the country continues its 235 year struggle to determine the nature and extent of the people's civil rights.

You can read and/or listen to the audio of the NPR story here: "Same-Sex Marriage May Hinge on Supreme Court"

In Jackson, MS and the country at large drug prohibitions and sentencing laws have the effect of creating a subclass of citizens. Consider that once an offender has been convicted of a felony, it is extremely difficult for them to find a good job. Felons are also deprived of civil liberties such as the right to vote among others. The stigma associated with a felony conviction seriously hinders the ability of even the most rehabilitated offender to be integrated back into society.

There are more African-Americans under correctional control than were enslaved in 1850, a decade before The Civil War began. Studies have shown that drug use and drug sales are not any less prevalent in white communities. However, law enforcement has a much greater presence in African American communities. This does not necessarily mean that police officers and prosecutors are racist. It could be that they have more of a presence in certain neighborhoods because those neighborhoods have a higher rate of violent crimes.

However, there is a counterargument. Federal funding incentives police departments to increase the number of drug arrest. Affluent communities simply would not tolerate such infiltration into their daily lives and thus the drug arrest fall upon those who are "easy pickin's." The under-represented and economically disadvantaged populations are targeted for drug arrest. This is accomplished through massive sweeps, pat downs and constant automobile stops and searches.

Jackson and the entire State of Mississippi has no shortage of felony arrests for non-violent drug offenses. It is absolutely crucial that a person avoid a felony conviction, regardless of other punishments or fines that they might have to serve. The difference between a felony and a misdemeanor conviction will have a significant impact on the quality of life that is within reach. It is worth the cost of retaining an attorney, if there is any chance that doing so may help one avoid a felony conviction and the stigma associated with it.