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IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

PLAINTIFF

VS.

CAUSE NO.: 25CI1:16-cr-00836-LER

ROBERT SHULER SMITH

DEFENDANT

______________________________________________________________________________
DEFENDANT ROBERT SMITHS BRIEF IN SUPPORT OF
MOTION TO RECONSIDER COURTS VERBAL ORDERS OF OCTOBER 25, 2016
DECLINING TO DISMISS OR QUASH THE INDICTMENT
______________________________________________________________________________
INTRODUCTION
District Attorney Robert Smiths (hereinafter Smith) criminal indictment arises from his
disagreement with the Mississippi Attorney General concerning Smiths handling charges against
Christopher Butler (hereinafter Butler).
Smith decided not to pursue drug charges against Butler after the Mississippi Bureau of
Narcotics (hereinafter MBN) failed to turn over a videotape of its search of Butlers home.
Smiths disagreement with the Attorney General intensified when Smith investigated whether
employees of the Attorney Generals office and/or law enforcement officers had threatened Butler.
The feud became even more heated when the Attorney Generals office frustrated Smiths attempts
to subpoena various employees of the Attorney Generals office to a Grand Jury investigation.
FACTS
At the January 2012 term of Hinds County Circuit Court, Smith obtained an indictment
against Butler for possessing more than four (4) kilograms of marijuana on January 19, 2011. See
Indictment in State v. Butler, Cause No. 12-452 CRW, Exhibit A.
At the June 2012 term of Hinds County Circuit Court, Smith obtained a second habitual

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offender indictment against Butler. This indictment alleged that on April 13, 2012, slightly more
than one year after the first charge of possession, Butler was in possession of marijuana in an
amount more than one (1) kilogram, but less than five (5) kilograms. See indictment in State v.
Butler, Cause No. 12-831, Exhibit B.
In 2012, Butlers defense attorney Kevin Rundlett told Smith that Butler claimed that the
marijuana seized during the 2011 raid on his house had been planted, and that the MBN refused to
turn over a videotape of the agencys search of Butlers home.
On April 12, 2013, Smith filed a motion seeking dismissal of Butlers indictment on the
grounds that the MBN would not produce a copy of the videotape of its search of Butlers home.
See Motion filed by Smith, Exhibit C.
On January 15, 2014, Smith filed a motion stating that it is imperative that the Hinds
County District Attorney, the highest law enforcement office in Hinds County, Mississippi obtain
possession of the DVR to examine the same and determine whether said DVR contains data that
could be evidence, whether incriminating or mitigating in the above cause. District Attorneys
Motion of January 15, 2014, Exhibit D.
On January 11, 2016, Smith told the Hinds County Circuit Court that it would violate my
prosecutorial ethical duties, as well as the defendants constitutional rights to proceed with the drug
case against Butler. Transcript of January 11, p. 6, Exhibit E.
On January 22, 2015, Smith appeared before Circuit Judge Jeff Weill with defense attorney
Kevin Rundlett, complaining about intentional delay by the MBN and claiming there had been
tampering with the videotape. Smith also alleged that on April 12, 2012, MBN agents entered the
home where Butler resided, and physically tore down the cameras inside of his home. Further,

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Smith alleged that an independent witness, John Ledford, had been present during the 2011 search
and had witnessed racial slurs being used by the white MBN agents toward black persons.
Transcript of Hearing on January 22, 2015, pp. 5-6. Exhibit F.
Judge Weill ultimately denied Smiths request for a nolle pross of the drug charges on the
ground that Smith had failed to follow his order to produce documentation supporting his request
for a nolle pross. See Judge Weills Order, dated May 8, 2015, Exhibit G.
When Smith finally obtained the videotape, he directed Assistant District Attorney Jamie
McBride to examine it. McBride reported suspicious circumstances, including differences between
an MBN agents description of the search, and what was shown on the tape. McBride also reported
that an agent went directly to the hiding place for the marijuana, instead of actually searching the
house as the agents reports had claimed. See Investigative Report of McBride, Exhibit H.
On January 19, 2016 the same date that Assistant Attorney Generals Patrick Beasley and
Shaun Yurtkuran had failed to respond to subpoenas to appear before a Grand Jury the Mississippi
Attorney General made additional charges of fraud and embezzlement against Butler. Subsequently,
Butler wrote letters making the following claim:
Assistant Attorney Generals Patrick Beasley and Shaun Yorkhuran (sic) are trying
to blackmale (sic) me into telling them something that I just dont know. They asked
my attorney Sanford Knott to asked (sic) me what my relationship is with the Hinds
County D.A. The problem is, I dont have one with him but they told my lawyer that
if I dont tell them, that they would give me a bond that is to (sic) high to make bond
that the (sic) would come with more charges.
Letter from Christopher Butler to Robert Glen Waddle, Exhibit I.
Butler also claimed that he had been arrested for a $500 dollar fraud and false pretense with
an excessive bond of $500,000.00 dollars. Id.
In March 2016, Smith attended a preliminary hearing before County Court Judge Melvin
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Priester regarding new charges of fraud and false pretense brought by the Mississippi Attorney
General against Butler. During this hearing, Smith agreed with attorney Sanford Knott, who
represented Butler on the new charges in County Court, that under Williams v. State, 184 So.3d 908
(Miss. 2014), the attorney general cannot lawfully prosecute a felony case without the district
attorneys consent. Smith also complained about Assistant Attorneys General Beasley and
Yurtkurans refusal to honor subpoenas issued for them. See Transcript of hearing of March 3,
2016, pp. 20-21, Exhibit J. Judge Priester observed that this is a power struggle, between entities
other than this Court. Id. at 31.
Judge Priester declined to proceed with Butlers preliminary hearing on the fraud and false
pretense charges and kept Butler under a $500,000.00 bond. Transcript of Hearing on March 3,
2016, pp. 29-30.
In May 2016, Smith visited Butler in jail and obtained a written statement from him. Exhibit
K. Butlers family subsequently claimed that various law enforcement officers and had entered
Butlers cell on or about June 12, 2016, and threatened Butler. Therefore, on June 13, 2016, Smith
made unsuccessful efforts to see Butler. A jail employee has given a statement, explaining that in
trying to see Butler, Smith referred to Butler as his client.
During the same time as Smiths ongoing dispute with the Attorney General over Butler,
both the office of the Attorney General and the office of the District Attorney were independently
investigating alleged scams in which the families of criminal defendants were being asked for money
in order to obtain the release of persons who had been sentenced.
In November 2015, Attorney General Jim Hood issued a press release describing such a scam
in Jefferson County. Exhibit L. The press release indicated that Assistant Attorneys General

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Patrick Beasley and Shaun Yurtkuran and Investigator Lee McDivitt all had knowledge about the
Jefferson County scam.
An alleged family member victim, Tracey Chandler, told Smith in 2015 that criminal
defendant Vincent Taylor McGee, Jr. and others, including inmate Marietta Harris, were involved
in the scam in Hinds County. Because Smith had represented McGee before he was elected District
Attorney, Smith sent the McGee criminal file to Assistant Attorney General Stanley Alexander.
When no one from the Attorney Generals office would cooperate with Smith in
investigating the jail scam, and when Chandler told Smith that certain unknown officials were trying
to frame him, Smith subpoenaed Beasley, Yurkuran, and McDivitt, as well as Judge Weill, to
appear before a Grand Jury. The Attorney General moved to suppress the subpoenas. Exhibit M.
Judge Green issued an ex parte order suppressing the subpoenas. However, Judge Green appointed
Special Master Amy Whitten to hold a hearing on the motion to suppress. Following a hearing,
Special Master Whitten refused to suppress the subpoenas of the employees of the Attorney
Generals office, but she did suppress the subpoena of Judge Weill. See Report of Amy Whitten,
Exhibit N.
Still more animosity resulted between the Attorney General and Smith when Beasley and
Yurtkuran evaded process, and Smith moved to hold them in contempt of court. See Motion for
Show Cause, Contempt of Court, and Violation of Uniform Circuit and County Rule 7.04, Exhibit
O.
Unknown to Smith, at the same time that the Attorney General was feuding with Smith over
Butler and over Smiths efforts to subpoena employees of the Attorney Generals office, the
Attorney General and/or FBI were investigating Smith through one of Smiths former employees,

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Assistant District Attorney Ivon Johnson. Former Assistant District Attorney Johnson had pled
guilty in federal court to accepting bribes from criminal defendants. According to a press release
by the Attorney General, and according to statements made by Assistant Attorney General Baker
to The Mississippi Bar Association, the Attorney General and the FBI were conducting a joint
investigation. See Press Release of June 22, 2016, Exhibit P; and see Complaint to Bar by
Assistant Attorney General Larry Baker, Exhibit Q.
Former Assistant District Attorney Johnson is still awaiting sentencing for his bribery
conviction. See Johnson Bill of Information, Exhibit R, and Plea Agreement, Exhibit S.
Johnson has secretly recorded conversations between him and Smith in order to show that Smith was
assisting Butler. The secret tape-recordings discuss whether the District Attorney would have
standing to file a suit a against the Attorney General because of his holding Butler on allegedly
excessive bail and retaliating against Butler. The tapes also indicate that Smith was planning to
get Judge Weill on unspecified charges.
On approximately June 20 and 21, 2016, Assistant Attorneys General Beasley and Yurtkuran
called Assistant District Attorney Jamie McBride to inquire about whether they were being
investigated by the Grand Jury. On June 22, 2016, the Attorney General Investigator McDivitt
arrested Smith. The next day, Circuit Judge Weill signed an Order stripping Smith of the ability to
attend Grand Jury sessions. See Administrative Order of Judge Weill, Exhibit T.1
On August 18, 2016, McBride executed an affidavit describing his conversation with Beasley
and Yurtkuran in which they asked McBride whether they were about to be arrested. See McBride
Affidavit, Exhibit V. Less than a month after McBride gave his affidavit, a Grand Jury, under the
1

This Order was ultimately set aside by the Mississippi Supreme Court. See Order, Exhibit

U.

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supervision of the Attorney General, indicted both Smith and McBride. See Indictment, Exhibit
V.

ARGUMENT I.
THE PROSECUTION OF THIS CASE BY THE ATTORNEY GENERAL
VIOLATES THE DUE PROCESS CLAUSE OF UNITED STATES
CONSTITUTION AMENDMENT FOURTEEN.
This is not the ordinary case in which law enforcement officers made an arrest and brought

a criminal defendant before a prosecutor to prosecute. The Attorney Generals own investigator
signed the criminal affidavit initiating the case. The Attorney Generals investigator arrested Smith
only days after Assistant Attorney Generals Patrick Beasley and Shaun Yurtkuran called Assistant
District Attorney Jamie McBride to inquire about whether they were going to be arrested. McBride
himself was then indicted within weeks after he gave an affidavit relating calls made to him by the
two (2) Assistant Attorney Generals in which they expressed fear of being arrested.
Ignoring the Mississippi Rules of Criminal Procedure requiring the disclosure of the
addresses of criminal witnesses, the Attorney General refuses to disclose the location of a key
witness, Ivon Johnson.
The Attorney General has stripped Smith of another crucial witness by indicting Assistant
District Attorney McBride without any basis for charging him.
The Attorney General made a constitutionally baseless motion to deprive Smith of the
counsel of his choice, a right clearly guaranteed him by the Sixth Amendment to the United States
Constitution under decisive Supreme Court precedent.
As Judge Priester indicated, this case is a power struggle between the Mississippi Attorney
General and Judge Weill on one hand, and District Attorney Smith on the other. A prosecutor
engaged in a power struggle cannot be the fair and impartial prosecutor which due process

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demands. United States v. Wells, 163 F. 313, 328 (D.C. Idaho 1908), found a grand jury indictment
should have been suppressed, when the grand jury had been influenced, among other things, by
political partisanship or personal ill will. Blau v. State, 34 So. 153, 155 (Miss. 1903), noted that
no prosecutor can say to the grand jury that the facts, as shown by the evidence, are sufficient to
authorize them to find a bill. U.S. v. R. Enterprises, Inc., 111 S.Ct. 722, 727 (1991), held grand
juries may [not] select targets of investigation out of malice or an intent to harass. People v.
DiFalco, 44 N.Y.2d 482, 487 (N.Y. 1978), held that grand juries are required to show completely
impartial judgment and discretion.
Young v. United States, 481 U.S. 787 (1987), held it reversible error to appoint a special
prosecutor, where the special prosecutor represented a private client with a financial interest in
obtaining a criminal conviction. The Court held that having a prosecutor with such an interest was
the type of error that was so fundamental and pervasive that [it] require[d] reversal without regard
to the facts or circumstances of the particular case. Young, 481 at 809-810. Here, the Mississippi
Attorney Generals desire to protect his Assistant Attorney Generals from charges of intimidating
a witness is analogous to the financial interest that was held to be prohibited in Young.
Adams v. State, 30 So.2d 593, 596 (Miss. 1947), held that: In conducting a criminal case,
the prosecuting attorney must be fair and impartial, and see that defendant is not deprived of any
constitutional or statutory right. (Emphasis in original). Here, rather than seeing that Smith was
not deprived of any constitutional or statutory right, the Attorney General sought to strip Smith
of his constitutional right to counsel of his choice.
In State of Louisiana v. Marcotte, 86 So.2d 186 (La. 1956), the Louisiana Supreme Court
held that a criminal conviction could not stand, where it was demonstrated that the district attorney

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had a personal animosity against [the] defendant, due to defendants political differences with
the district attorney, and due to defendants support of district attorneys opponent in an election.
. . .

The Attorney General claims that he has the authority to act as special prosecutor under the

authority of MISS. CODE ANN. 25-31-21. This statute refers to the appointment of a private
attorney who shall receive a reasonable compensation for his services, to be allowed by the court
and certified to the auditor, who shall issue his warrant therefor. Obviously, the Attorney General
could not be considered to be special prosecutor under the statute since his salary is paid by the
State.

Assuming, however, that the Legislature intended the courts to have authority to

appoint the Attorney General as a special prosecutor under certain circumstances, the fundamental
fairness requirement of the due process clause of the Fourteenth Amendment forbids his acting as
special prosecutor when he has a personal interest because of his ongoing feud with the person he
is prosecuting.
This Court noted at the October 25, 2016 hearing that it has no authority to pay a private
attorney to act as special prosecutor. See J.S. Love Co. v. Town of Carthage, 65 So.2d 568, 569
(Miss. 1953) (municipality had no authority to hire bond agents since municipality may not make
payments not authorized by law.); Miller v. Tucker, 105 So. 774, 777 (Miss. 1925) ([O]bjects to
which the boards may appropriate money are designated by law, and, . . . in all cases of doubt, they
may resolve the doubt against the appropriation . . . .). The members of the board of supervisors
are personally liable if they allocate funds to any object not authorized by law. Smith v. Dorsey,
599 So.2d 529, 544 (Miss. 1992).
Nevertheless, the Court surely cannot infringe upon Smiths due process rights to a fair
prosecutor merely because the Legislature has not given the Court any authority to appoint a

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prosecutor who does not have a special interest in the matter. Under these circumstances, the
appropriate course is for the Court to dismiss the indictment, but to permit the Attorney General to
petition the Mississippi Supreme Court to appoint some impartial special prosecutor should that
Court find the Attorney General has a factual basis to have an investigation proceed. Such a
specially-appointed attorney should have full authority to investigate not only the District Attorney,
but also the Attorney General, in order to determine whether the Attorney Generals acts in this case
constitute retaliation in violation of MISS. CODE ANN. 97-9-127, or intimidating a witness under
MISS. CODE ANN. 97-9-55.2

MISS. CODE ANN. 97-9-127 provides:

(1) A person commits the offense of retaliation if he intentionally or knowingly harms or

threatens to harm another by any unlawful act in retaliation for anything lawfully done in
the capacity of public servant, witness, prospective witness or informant.
Retaliation is a Class 2 felony.

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ARGUMENT II.
COUNTS I AND II OF THE INDICTMENT FAIL TO GIVE SMITH NOTICE
OF THE CHARGE AGAINST HIM AS REQUIRED BY UNITED STATES
CONSTITUTION, AMENDMENTS FOUR, SIX, AND FOURTEEN, BY
MISSISSIPPI CONSTITUTION SEC. 26, AND BY RULE 7.06 OF THE
UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE.
FURTHERMORE, COUNTS I AND II ARE UNCONSTITUTIONALLY
VAGUE, SINCE THEY FAIL TO NOTIFY SMITH OF THE EXACT
CHARGE AGAINST HIM.
Counts I and II of the indictment charge that Robert Shuler Smith and Jamie McBride . .
. did . . . conspire with Ivon Johnson . . . to commit the crime of hindering prosecution. The
indictment does not specify what acts constitute hindering prosecution. Alternative acts which
may constitute hindering prosecution are specified by statute. According to statute, the term
hindering prosecution embraces five specific alternatives any one of which may constitute this
offense. MISS. CODE ANN. 97-9-103.3 Without being told which of the alternative five acts with
which the Grand Jury has charged Smith with conspiring to commit, Smith has not been notified of
the nature of the charge.
Tran v. State, 962 So.2d 1237 (Miss. 2007) involved an indictment which alleged money
laundering, but did not allege the specific unlawful activity from which the defendant had

Specifically, MISS. CODE ANN. 97-9-103 provides:

[A] person renders criminal assistance to another if he knowingly:
(a) Harbors or conceals the other person;
(b) Warns the other person of impending discovery or apprehension, except that this
paragraph (b) does not apply to a warning given in connection with an effort to bring
another into compliance with the law;
(c) Provides or aids in providing the other person with money, transportation, weapon,
disguise or other means of avoiding discovery or apprehension;
(d) Prevents or obstructs, by means of force, deception or intimidation, anyone from
performing an act that might aid in the discovery, apprehension, prosecution or conviction
of the other person; or
(e) Suppresses, by an act of concealment, alteration or destruction, any physical evidence
that might aid in the discovery, apprehension or conviction of the other person.

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laundered money. The Mississippi Supreme Court wrote: We find Tran's indictment to be no more
informative than a hypothetical indictment which charges a defendant with entering a conspiracy
to commit some unlawful activity. Tran, 962 So.2d at 1243.
Just as the law required a specification of the unlawful activity in Tran, the law requires
a specification of the acts which Smith conspired to commit in this case.
During the October 25, 2016 hearing, this Court asked Assistant Attorney General Anderson
whether the hindering prosecution involved subparagraphs a, b, or c of MISS. CODE ANN. 97-9103. Anderson answered negatively. The Court then asked Anderson whether the hindering
prosecution referred to subparagraph d, to which Anderson answered affirmatively.

The

Mississippi Attorney General, however, does not return an indictment. The Grand Jury handles
indictments. As Tran explained:
This Court has held, If the grand jury did not know what crime they were charging
against the defendant, how could the defendant know the nature of the crime with
which he is charged? Brumfield, 206 Miss. at 507, 40 So.2d 268. The United States
Supreme Court noted:
. . . To allow the prosecutor, or the court, to make a subsequent guess
as to what was in the minds of the grand jury at the time they returned
the indictment would deprive the defendant of a basic protection
which the guaranty of the intervention of a grand jury was designed
to secure. For a defendant could then be convicted on the basis of fact
not found by, and perhaps not even presented to, the grand jury
which indicted him. Russell v. United States, 369 U.S. 749, 766, 82
S.Ct. 1038, 8 L.Ed.2d 240 (1962).
Tran, 962 So.2d at 1243-44.4
Examples from the facts of this case make the constitutional violation clear. In discovery,

For other cases to the same effect, see State v. Buchanan, 22 So. 875 (1898) (charging entry
of a building with burglarious intent, then and there, to commit some crime to the jurors unknown was
insufficient); State v. Berryhill, 703 So.2d 250, 256 (Miss. 1997) (charge is insufficient when it may be
subject to evolving prosecutorial theories as to the nature of the charge).

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the State has furnished various information that might lead to various theories as to what constitutes
the crime of hindering prosecution. For example, the State has furnished transcripts in which
Smith, in open court, sought to dismiss the charges against Butler. Is Smiths seeking the dismissal
of the charges against Butler what the Grand Jury means by hindering prosecution?
Similarly, the State has furnished in discovery, a videotape in which Smith discusses freeing
Butler, and obtaining counsel for Butler. Is freeing a defendant from excessive bail what the Grand
Jury means by hindering prosecution?
The State has furnished a transcript of a hearing before Judge Priester in which Smith argued
to Judge Priester that the Attorney General had no authority to prosecute a felony case without
notice to the district attorney. Is an argument in open court about whether the Attorney General
must give the District Attorney notice to handle a felony prosecution what the Grand Jury meant by
hindering prosecution?
The State has furnished transcripts in which Smith argues for a nolle pross because of
misconduct of MBN agents. Is arguing for a nolle pross in open court what the Grand Jury means
by hindering prosecution?
Smith cannot be required to guess as to the nature of the charge against him. If Smith is
tried and convicted on this charge of hindering prosecution, it will not be known whether he was
convicted for the same acts for which the Grand Jury indicted him. It is much a violation of due
process to send an accused to prison following conviction of a charge in which he was never tried,
as it would be to convict him upon a charge that was never made. De Jonge v. State of Oregon, 299
U.S. 353, 362 (1937) quoted in Cole v. State of Arkansas, 333 U.S. 196, 201 (1948).
An indictment must contain a statement of the facts and circumstances as will inform the

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accused of the specific offence. . . . Tran, 962 So.2d at 1242. This indictment contains none of the
facts and circumstances constituting a conspiracy to hinder prosecution.

ARGUMENT III.
MISS. CODE ANN. 97-11-3 WHICH IS THE BASIS FOR THE CHARGE
IN COUNT III OF THE INDICTMENT IS FACIALLY
UNCONSTITUTIONAL. THE STATUTE VIOLATES THE FIRST AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, SINCE IT CRIMINALIZES CONDUCT WHICH IS
LAWFUL.
Count 3 of the Indictment charges Smith with meeting with Christopher Butler at the Hinds
County Jail outside the presence of Butlers attorney,. . . . and later advising Butlers attorneys in
various ways to attack the States pending case against Butler, and by other means seeking the
release of Butler from jail. . . .
The above facts are alleged to violate MISS. CODE ANN. 97-11-3 , which criminalizes the
act of an attorney general or any district attorney who in any manner [does] consult, advise,
counsel, or defend,. . . . a person charged with a crime.
By its terms, MISS. CODE ANN. 97-11-3 criminalizes conduct which the law favors. For
example, Miss. R. Professional Conduct 3.8(b) requires a prosecutor to make reasonable efforts to
assure that the accused has been advised of the right to, and the procedure for obtaining, counsel.
. . . Miss. R. Professional Conduct 3.8(d) requires the prosecutor to make timely disclosure to the
defense of all evidence or information known to the prosecutor that tends to negate the guilt of the
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accused or mitigates the offense,. . . . Uniform Rule of Circuit and County Court (URCC)
8.04(b)(1) provides: The prosecuting attorney is encouraged to discuss and agree on pleas which
may be entered by the defendant. Any discussions or agreements must be conducted with defendant's
attorney, or if defendant is unrepresented, the discussion and agreement may be conducted with the
defendant.
Further, URCC 8.04(b)(2) provides:
The prosecuting attorney, defendant's attorney, or the defendant acting pro se, may
reach an agreement that upon an entry of a plea of guilty to the offense charged or
to a lesser or related offense, the attorney for the state may do any of the following:
a.
b.

Move for a dismissal of other charges; or

Make a recommendation to the trial court for a particular sentence,. . . .

If valid, MISS. CODE ANN. 97-11-3 prohibits plea bargaining, since a plea bargain includes
advising the defendant of the advantages to him of providing states evidence or entering a guilty
plea instead of going to trial. [M]ost of the time [a guilty] his plea has been exchanged for some
type of sentencing consideration. Wesley M. Oliver, The Present and Future Regulation of Plea
Bargaining: A Look at Missouri v. Frye and Lafler v. Cooper, 2012 Cato, S.Ct. Rev. 258.
Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978), held that a prosecutor may constitutionally
advise a criminal defendant that he will receive a five (5) year sentence if he pleads guilty, but he
will be charged with a habitual offender charge carrying life imprisonment if he goes to trial.
If valid, MISS. CODE ANN. 97-11-3 overrules Bordenkircher. That case approves the
district attorneys advising a criminal defendant about the dire consequences which will befall him
if he does not agree to plead guilty. But MISS. CODE ANN. 97-11-3 does not permit a prosecutor
to advise a criminal defendant.
Contrary to the allegations in this indictment, Mississippi district attorneys have the sole
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discretion as to how and whether to proceed with a criminal case. According to Williams v. State,
184 So.3d 908, 911-12 (Miss. 2014) reh'g denied (Oct. 15, 2015), [n]either the Constitution nor any
case law authorized . . . .Judge Weill's orders appointing the Office of the Attorney General as
special prosecutor to prosecute the case against Williams, where the local district attorney, in his
discretion, had made the decision not to prosecute. If valid, MISS. CODE ANN. 97-11-3 would
overturn Williams, because the Attorney General may prosecute the district attorney if he uses his
discretion not to prosecute a criminal case. This contradicts Williams holding.
MISS. CODE ANN. 97-11-3 is not saved merely because a judge or jury might find that the
acts would constitute illegally defending a criminal defendant. Johnson v. United States, ___ U.S.
___, 135 S.Ct. 2551, 2560 (2015), involved a statute which provided enhanced sentences for those
found guilty of committing a crime which posed a serious potential risk of physical injury to
another. The United States Supreme Court held this terminology was unconstitutionally vague
even though some crimes clearly pose a serious potential risk of physical injury to another. Id.
The Court stated:
[O]ur holdings squarely contradict the theory that a vague provision is constitutional
merely because there is some conduct that clearly falls within the provision's grasp.
For instance, we have deemed a law prohibiting grocers from charging an unjust or
unreasonable rate void for vaguenesseven though charging someone a thousand
dollars for a pound of sugar would surely be unjust and unreasonable. L. Cohen
Grocery Co., 255 U.S., at 89, 41 S.Ct. 298. We have similarly deemed void for
vagueness a law prohibiting people on sidewalks from conduct[ing] themselves in
a manner annoying to persons passing byeven though spitting in someone's face
would surely be annoying. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29
L.Ed.2d 214 (1971).
Johnson, 135 S.Ct. at 2561.
Johnson controls. During oral argument, the Court asked the assistant attorney general
whether his charges were intended to charge Smith with using the Grand Jury to pressure Judge
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Weill. This is, of course, an example of an act that this Court may believe constitutes aiding a
criminal defendant. Yet, according to Johnson, the mere fact that some [crimes] clearly pose a
violation of a statute does not save a statute which criminalizes lawful acts.
Five years before Johnson, the Supreme Court had indicated Johnsons ultimate result in
Skilling v. United States, 561 U.S. 358 (2010). In Skilling, the United States Supreme Court
considered the constitutionality of a statute which outlawed any scheme or artifice to deprive
another of the intangible right of honest services. Skilling, 561 U.S. at 402. Defendant Skilling
and others were prosecuted for violating this statute because they engaged in a wide-ranging
scheme to deceive the investing public, including Enron's shareholders, ... about the true
performance of Enron's businesses by: (a) manipulating Enron's publicly-reported financial results;
and (b) making public statements and representations about Enron's financial performance and
results that were false and misleading. Skilling, 561 U.S. at 369. The United States Supreme Court
held this statute not unconstitutionally vague only because prior cases had limited those who could
be prosecuted to those who had participated in bribery or kickback schemes. Id. at 365. The
Supreme Court held the statute constitutional only if it be limited to include only bribery and
kickback schemes, since many precedents make bribery and kickback schemes criminal acts. The
Supreme Court stated:
[T]here is no doubt that Congress intended 1346 to reach at least bribes and
kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we
acknowledge, would raise the due process concerns underlying the vagueness
doctrine. To preserve the statute without transgressing constitutional limitations, we
now hold that 1346 criminalizes only the bribe-and-kickback core of the preMcNally case law.
Skilling, 561 U.S. at 408-09 (footnotes omitted).
Assuming Johnson does not overrule it, Skilling permits an otherwise vague statute to be held
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constitutional if sufficient precedent clearly define those acts which are criminal. Unlike Skilling,
there are no precedents in Mississippi defining what acts constitute a crime under MISS. CODE ANN.
97-11-3. There is not a single Mississippi case where there has even been a prosecution, other
than this one, under MISS. CODE ANN. 97-11-3.
In fact, MISS. CODE ANN. 97-11-3 is probably intended to address only the issue of parttime district attorneys defending criminals. MISS. CODE ANN. 97-11-3 was carried over from the
Mississippi Code of 1930. At that time, district attorneys were part-time state employees. This
changed in 1978 with the enactment of MISS. CODE ANN. 25-31-39, which provides for the
abolishment of part-time district attorneys and requires district attorneys to serve full-time. As
applied to part-time prosecutors, MISS. CODE ANN. 97-11-3 serves the common-sense purpose
avoiding unfair competitive advantages for district attorneys who also defend criminal cases. The
literature which addresses statutory provisions similar to MISS. CODE ANN. 97-11-3 all involve
part-time prosecutors. For example, Richard H. Underwood, Part-Time Prosecutors and Conflicts
of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1, 11 (1992/93), notes that [i]In virtually
every state there are ethics opinions stating that a part-time prosecutor may not defend in criminal
cases. . . .
At the hearing on October 25, 2016, this Court stated that it could not find a statute
unconstitutional unless it so finds beyond a reasonable doubt. Cases such as City of Belmont v.
Mississippi State Tax Comn, 860 So.2d 289, 307 (Miss. 2003), agreed that unconstitutionality must
appear beyond reasonable doubt.
But in this case, Smith challenges the statute on grounds that it violates not just the
Mississippi Constitution, but also the First and Fourteenth Amendments to the United States

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Constitution. State procedural rules concerning the standard of review do not apply since the United
States Constitution Supremacy Clause provides: This Constitution, and the Laws of the United
States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S.
Const. Art. VI. Because of this Supremacy Clause, decisions of the United States Supreme Court,
rather than decisions of the Mississippi Supreme Court interpreting the state constitution, control.
The United States Supreme Court decisions do not use a reasonable doubt standard in
order to determine whether statutes are unconstitutionally vague. Rather, Johnson v. United States,
___ U.S. ___, 135 S.Ct. 2551 (2015), used a categorical approach, under which a court assesses
. . . how the law defines the offense and not in terms of how an individual offender might have
committed it on a particular occasion. Johnson, 135 S.Ct. at 2557. Similarly, Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972), another leading vagueness case, assessed whether a statute
is so vague that it impermissibly delegates basic policy matters to . . . judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.

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RESPECTFULLY SUBMITTED, this the 7th day of November, 2016.

ROBERT SMITH, Defendant

By:

/s/ Jim Waide

Jim Waide, MS Bar No. 6857
waide@waidelaw.com
WAIDE & ASSOCIATES, P.A.
332 North Spring Street
Tupelo, MS 38802-3955
Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile
ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE
This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:
Assistant Attorney General Robert Anderson
P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us
Assistant Attorney General Larry Baker
P. O. Box 220
Jackson, MS 39205
lbake@ago.state.ms.us
VIA EMAIL:
Judge Larry Roberts
lroberts_judge@yahoo.com
VIA EMAIL:
Damon R. Stevenson, Esq. (Attorney for Christopher Butler)
Stevenson Legal Group, PLLC
1010 N. West Street
Jackson, MS 39202-2568
damon.steven@gmail.com
VIA EMAIL:
Dale Danks, Jr., Esq. (Attorney for Jamie McBride)
P. O. Box 1759
Jackson, MS 39215
ddanks@dmc-law.com
SO CERTIFIED, this the 7th day of November, 2016.

/s/ Jim Waide

JIM WAIDE

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