Petition for Writ of Prohibition | Pardon | United States Constitution

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.

___________ IN RE: CHARLES HOOKER, DAVID GATLIN, NATHAN KERN, AND ANTHONY MCCRAY PETITIONERS

PETITION OF CHARLES HOOKER, DAVID GATLIN, NATHAN KERN, AND ANTHONY MCCRAY FOR WRIT OF PROHIBITION AND/OR MANDAMUS, OR, ALTERNATIVELY, FOR PERMISSION TO APPEAL INTERLOCUTORY ORDERS IMMEDIATE STAY REQUESTED EXPEDITED EMERGENCY CONSIDERATION REQUESTED HEARING AT WHICH YOUR PETITIONERS MAY BE UNLAWFULLY IMPRISONED IS NOW SET FOR FEBRUARY 3 ON PETITION FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI HONORABLE TOMIE T. GREEN, SENIOR CIRCUIT JUDGE PRESIDING One of the core functions of the writ of prohibition is "to prevent courts or tribunals from exercising jurisdiction with which they are not vested." State v. Maples, 402 So. 2d 350, 351

(Miss. 1981). The Circuit Court has erroneously asserted the judicial power to review gubernatorial pardons granted under the exclusive authority given by Section 124 of the State Constitution to the chief executive officer of the State. Petitioners Charles Hooker, David Gatlin, Nathan Kern, and Anthony McCray petition this Court under Miss. R. App. P. 21 for a Writ of Prohibition and/or Mandamus directed to the Circuit Court. In the alternative, Petitioners seek permission to appeal under Miss. R. App. P. 5(a) from the interlocutory orders of the Circuit Court. In all events Petitioners request an immediate stay in the Circuit Court and expedited emergency consideration of their Petition. An evidentiary hearing is set for Friday, February 3, 2012, at 1:00 p.m., at which your Petitioners may be unlawfully imprisoned as a result of the Circuit Court’s unequivocal assertion of jurisdiction over, and review of, the unconditional pardons issued by Governor Barbour to Petitioners and others.

In support thereof, your Petitioners would respectfully show the following: A. STATEMENT OF THE FACTS NECESSARY TO AN UNDERSTANDING OF THE ISSUES PRESENTED BY THE APPLICATION AND WHY IT WAS DENIED BY THE CIRCUIT COURT 1. Petitioners are former felons convicted under the laws of the State of Mississippi, each of

whom was housed on the grounds of the Governor’s Mansion and working as Mansion trusties when then Governor Haley Barbour formally pardoned each Petitioner on January 6, 2012. True and correct copies of their pardons are attached as Collective Exhibit A. The State of Mississippi released Petitioners from its custody on January 8, 2012. Governor Barbour’s term of office ended at 12 noon on January 10, 2012, when Governor Bryant took his oath of office. 2. On or about January 11, 2012, the State Attorney General filed suit in Hinds County

Circuit Court seeking to nullify Petitioners’ pardons and, by implication, to return Petitioners to the custody of the Mississippi Department of Corrections ("MDOC") and to prevent the release of five other convicted felons whom Governor Barbour pardoned but who remain incarcerated because of the Circuit Court’s erroneous restraining orders. The case is styled "Jim Hood, Attorney General for the State of Mississippi, ex rel. The State of Mississippi v. Christopher Epps, in his Official Capacity as Commissioner of the Mississippi Department of Corrections; Nathan Kern; David Gatlin; Charles Hooker; Anthony McCray; Joseph Ozment; Katherine Robertson; Kirby Glenn Tate; Aaron Brown; Joshua L. Howard; Azikiwe Kambule; and John or Jane Does 1-200" and bears Cause No. 251-12-00033. A true and correct copy of the Attorney General’s most recent Complaint filed in the Circuit Court is attached as Exhibit B. 3. The theory of the Attorney General’s suit is that the pardons are invalid due to an alleged

failure to comply with the portion of Section 124 of the Constitution which provides "in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have 2

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published for thirty days, in some newspaper in the county where the crime was committed and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted." Const. § 124 (1890). 4. Although the case had been randomly assigned to Judge Weill, Judge Green reassigned See Order of Re-Assignment See Miss.

the case to herself, on the ground that Judge Weill was in trial. (Jan. 11, 2012); attached as Exhibit C. 5.

On January 11, 2012, without notice to Petitioners, the Attorney General appeared before

Judge Green and requested a Temporary Restraining Order.’ A true and correct copy of the hearing transcript is attached as Exhibit D. 6. The hearing was entirely exparte, as the only attorneys who appeared were the Attorney

General and three attorneys who are employed and supervised by the Attorney General. For example, Special Assistant Attorney General David K. Scott represented Honorable Christopher Epps, Commissioner of the Mississippi Department of Corrections ("MDOC"), who is the lead "Defendant." During the hearing Mr. Scott (who, when asked by the Court if he had had an opportunity to review the Attorney General’s Petition, responded merely "I’ve briefly reviewed it.", Transcript, January 11 hearing, page 5 lines 6-8) was unable to identify even one legal argument to be made on behalf of his client and in opposition to his employer, including, for example, that the State knew where several of Petitioners were at the time suit was filed but had

Per the Order that was issued, Petitioners were given no notice because "their locations are unknown at this time." The Attorney General, however, did not represent to the Court that any effort had been made to contact them. To the contrary, he explained exactly how he would contact Petitioners after the hearing. Transcript, January 11 hearing p. 12 lines 11-18. After the hearing the Attorney General was in fact able to contact Petitioners to serve the TRO. Petitioners allege that it was not at all impractical for the Attorney General to give notice to Petitioners, and that there was no proper excuse for failing to do so, nor for the Circuit Court’s failure to insist upon notice. 3

not sought to serve them with a summons or complaint; that the Office of the Governor which had issued the pardons, which are official acts, had not been made a party; that certain inmates who received pardons were still in the custody of MDOC and had not been served; that it is hornbook law that the official acts of a public official under Mississippi law are presumptively valid ;2 and that MDOC in the past had published notices for trusties who were working at the Mansion.3 In fairness to Mr. Scott, he may not have known about this last point because he may not have been legal counsel to MDOC when MDOC published those notices in the past. 7. Mr. Scott was unable even to speak up to tell the Court the whole truth, of which he had

personal knowledge, on a key point of his employer’s argument. The Attorney General began his presentation to the Court by blaming then Governor Barbour for the alleged lack of notice. Transcript, January 11 hearing, page 6, lines 7-11 (Attorney General: "And we take the position that it was the Governor’s duty before he signed those pardons to determine that the publications were done.") 8. Yet, as Mr. Scott personally knew, the Attorney General had in fact undertaken the

express responsibility to publish notice on behalf of Petitioners. Mr. Scott had actual knowledge of this fact because it was he, personally, as Special Assistant Attorney General, who voluntarily undertook that responsibility on behalf of those inmates receiving pardons who had been serving as trusties at the Governor’s Mansion while in the custody of the MDOC. A full account of Mr.
For example, in Raper v. State, 317 So. 2d 709, 713 (Miss. 1975), this Court collects extensive authorities on the subject and explains that this "rule is firmly fixed as a part of our case history... The sum total of Mr. Scott’s advocacy amounted to this: MR. SCOTT: Your Honor, the Commissioner doesn’t contest the petition and relies on the wise judgment of the Court in making a ruling on that. Hearing Transcript, January 11 hearing, p. 32 lines 9-12.
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Scott’s undertaking, including text messages to and from Mr. Scott evidencing same, is set forth,

infra, at pp. 25-30.
9. At the January 11, 2012 hearing, the Attorney General did not present any proof that

Petitioners’ pardons were invalid, even under his own erroneous legal theory that the 30-day notice provision is a substantive rather than procedural requirement, a theory that departs from 125 years of State Supreme Court precedents to the contrary.

See Petition, infra, at pp. 21-23.

Instead, the Attorney General simply stated that he did not possess information sufficient to satisfy himself that all of the pardons were valid under his legal theory, thus improperly forcing Your Petitioners to carry the burden of negating his allegations about the official pardons of the Governor. Transcript, January 11 hearing, p. 13 lines 23-28 (Attorney General: "what we have already found in those files is a lot of them don’t have any information about any publication"); page 7 line 9 through p. 11 line 8; p. 11 line 27 through p. 12 line 2.

See especially id. p. 20 line

20 through p. 21 line 5 (admitting that at least as to some pardon recipients, "in all fairness I think they have a valid pardon until we prove otherwise. And so I guess what’s going to have to happen is our office is going to have to run all these publications and put on and try to prove a negative, you know that nothing has occurred"). 10. The Attorney General expressly singled Petitioners out, telling the Court: "let’s bring

these in and see if they’ve got some proof that they actually met the publication requirement."

"Mr. Scott’s silence on this point was maintained even when the Court asked him directly "When were you notified that the publications had been met so as to release anyone?" Mr. Scott’s response referenced "discussion between the Department [his client, the Department of Corrections] and the Governor’s office about the publication at that time [more than thirty days prior to the pardons], and the Department was instructed to go ahead and publish notification on the individuals [i.e., Your Petitioners] who were still in custody." Transcript, January 11 hearing p. 21 line 18 through p. 22 line 5. Considering that by "the Department was instructed" Mr. Scott apparently meant "I personally agreed," this can hardly be regarded as an illustration of candor to the Court. See also id. p. 24 lines 14-23 (Mr. Scott represents to the Court that MDOC relied on the Governor to ensure timely publication). 5

What is truly remarkable about this statement is that the Attorney General had proof of when their legal notices first began to run because David K. Scott, Special Assistant Attorney General, had accepted the responsibility to publish for Petitioners. Scott had directed that MDOC publish their notices just as MDOC had done for mansion trusties in the past, and Scott was addressed on documents showing that publication had happened under Scott’s very direction. 11. The Court entered the TRO which, on information and belief, had been pre-prepared by

the Attorney General, with, as the Court noted on the record, "some modifications" of the Court’s own. 5 Hearing Transcript, January 11 hearing p. 33 lines 18-19. A true and correct copy of the TRO is attached as Exhibit E. 12. Although styled a "restraining" order, the TRO is a mandatory injunction, directing that

Petitioners (a) "shall obtain and provide plaintiff and the Court documented and sufficient proof’ of compliance with Section 124, as interpreted by the Attorney General; (b) appear for a preliminary injunction hearing on January 23; and (c) contact MDOC "every 24 hours to provide accurate information on their exact locations and any plans to travel beyond their homes." This was another "modification" by the Court; the Attorney General’s draft order read "travel beyond their home counties." 13. At the January 23 hearing, the Circuit Court denied Petitioners’ motion to transfer the

case to Judge Weill, or, in the alternative, to dismiss. A true and correct copy of the order is attached as Exhibit F. 6 The Circuit Court also denied Your Petitioner’s motion to disqualify Mr.

The Court-supplied "modifications" included adding, to a sentence that recited that the Governor had pardoned individuals convicted of crimes, a handwritten list: "i.e. murder, manslaughter, rape, armed robbery, aggravated assault, sexual assault, kidnapping, burglary, domestic violence, etc." The order denying the motion to dismiss, apparently prepared by the Circuit Court, made the following observation: "It is well-settled that the Governor may, by proper pardon, extend mercy or forgiveness to murders, rapists, child molesters, or any other persons convicted in the courts."
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Scott from acting as an attorney for MDOC in the suit. A true and correct copy of the order is attached as Exhibit G. 14. The Circuit Court erroneously extended the TRO to February 37 The case is currently

set for hearing on the Attorney General’s request for a preliminary injunction, on February 3 at 1:00 p.m. Your Petitioners and others have exerted their best efforts to secure a transcript of the January 23 hearing, but have been advised by the Court that "The earliest the transcript can be available is by the end of the day on Monday [January 30] after same has been provided to the court for review." A true and correct copy of the email to this effect is attached as Exhibit H. A video of the January 23 hearing can be accessed on the internet at http://www.youtube.com/watch?v= SDY ED 1 2u8. 15. The Circuit Court told Petitioners that "your liberty is at risk," making it clear that should

Petitioners fail to discharge the burden that it has improperly placed on them, it will immediately order them returned to the custody of the MDOC. Employees of the Circuit Court were at the ready with manacles and fetters in hand at the January 23 hearing prepared to take Petitioners into the custody of MDOC. 16. The State has failed to allege facts showing that review of the Governor’s pardons is

permissible, and the Circuit Court has no jurisdiction in the premises. B. STATEMENT OF THE ISSUES PRESENTED AND OF THE RELIEF SOUGHT I. Whether the Circuit Court has jurisdiction to deprive Petitioners of their liberty or property on the theory that Section 124’s 30-day notice provision was not met, when the notice provision is procedural, not substantive, and thus, this aspect of the Governor’s power of clemency is beyond judicial review.

Petitioners appeared specially, preserving all objections, including objections to jurisdiction. VA

II. Whether, even if the Circuit Court has jurisdiction, the State of Mississippi is estopped to deprive Petitioners of their liberty or property on the ground that timely notice was not published, given that the State of Mississippi freely and voluntarily undertook to publish timely notice, and represented to Petitioners that it would do so, thus inducing reasonable reliance on the part of Petitioners? III. Whether, even if the Circuit Court has jurisdiction, its announced intention to consider nothing but the date that notice was published deprives Petitioners of their due process rights to have their legal and equitable defenses, such as promissory estoppel, heard and considered and thereby constitutes irreparable harm.
C. STATEMENT OF THE REASONS WHY THE WRIT SHOULD ISSUE 1. Whether The Recipient Of A Gubernatorial Pardon Has Published Notice Of The Application 30 Days Before The Governor Grants A Pardon Is A Procedural Component Of The Governor’s Exercise Of His Exclusive Constitutional Authority And Is Not Reviewable Once The Governor Grants A Pardon.

The "chief executive power of this State shall be vested in the Governor...." Miss. Const. § 116 (1890). The chief executive power includes the express constitutional authority to grant reprieves and pardons. Miss. Const. § 124 (1890), provides in its entirety: In all criminal and penal cases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the Legislature, and by and with the consent of the Senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with the consent of the Senate, but may respite the sentence until the end of the next session of the Legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted. Id. As can be seen, there are certain substantive limitations on the constitutional pardon power granted to the Governor. The Governor does not have the authority to grant a pardon in cases of treason or impeachment or in any criminal or penal case before there has been a conviction.

The Governor’s authority to grant a reprieve or to remit a forfeiture is reviewable in the sense that another branch of state government may question the act of the Governor in two specific instances. First, the Governor has the power to grant reprieves in cases of treason subject to the consent of the Senate. Second, the Governor also has the power to remit forfeitures in criminal or penal cases - except for cases of treason or impeachment - subject to the consent of the Senate. Thus, it is only the Senate, a chamber of the Legislative Department, that has the authority to review the acts of the Governor, and the authority of the Senate is limited to certain special cases involving reprieves for treason and the remission of forfeitures in criminal or penal cases. These are the only acts of the Governor authorized by Section 124 that are reviewable by another Department of State Government. Section 124 therefore does not provide for the express review by another branch of state government of any other actions taken by the Governor related to the decisions to grant a reprieve, to remit a fine or forfeiture, or to pardon. If the framers of the Mississippi Constitution had wanted to provide for the review by another branch of state government of the Governor’s exercise of the authority to pardon, they could have expressly placed this review power in Section 124. See W. Etheridge, MODERNIZING MISSISSIPPI’S CONSTITUTION 53-54 (1950) (The constitution does "grant to the Governor the exclusive pardoning power, the power to grant reprieves, and by implication the power of commutation.") This is wholly unremarkable because the gubernatorial pardon power - which does not extend to cases of treason, impeachment, or cases in which there is no conviction -. is an express constitutional check and balance on the "judicial power" of the State’s trial and appellate courts found in Section 144. It would defy common sense to permit this constitutional pardon power of the Chief Executive - once carried out - to be then reviewed by the state judiciary. By its express

terms, the grant of a pardon by the Governor carried out as a part of his "chief executive power" under Section 116 is final and unreviewable. For a court to entertain a lawsuit that seeks to nullify a pardon granted by the Governor in any case other than those already mentioned violates the strict separation of powers principles of the State Constitution. See Alexander v. State ex rel. Allain, 441 So. 2d 1329 (Miss. 1983). This issue has been the subject of several Mississippi Supreme Court decisions, all of which have uniformly held that the power to pardon belongs solely to the Governor. Thus, in State v. Kirby, 51 So. 811 (Miss. 1910), the court held that the Constitution grants the power to pardon solely to the Governor, and it cannot be delegated elsewhere by the Legislature. See State v. Jackson, 109 So. 724 (Miss. 1926); Ex Parte Chain, 49 So. 2d 722 (Miss. 1951). In affirming the Lieutenant Governor’s power to pardon when the Governor is absent from the state, the court eloquently wrote about the breadth of the constitutional power to pardon: he 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 .... [N]o authority other than his judgment and conscience can determine whether it is proper to grant or refuse the pardon. Montgomery v. Cleveland,
ENCYCLOPEDIA OF

98 So. 111, 114 (Miss. 1923) (emphasis added).

See, e.g.,

MississiPPi LAW § 19:123, at 168 (2001). Therefore, the court review was to

determine if the governor was indeed "absent" from the State so that the lieutenant governor could act in his stead, not to question the pardoning power given to the governor. As noted in Whittington v. Stevens, 73 So. 2d 137 (Miss. 1954), the general rule in most states is that where the constitution vests the power to pardon in the Governor, the exercise of his 10

right to pardon, including commutation of sentences, once complete, may not be restricted. This power is one "inherently vested in the people and they may vest it where they choose," and in Mississippi they chose to vest this power with the Governor. Whittington went on to explain: We hold that under the Constitution the governor is vested with the exclusive power to pardon with the sole exception that the legislature may provide for the commutation of the sentence of convicts for good behaviors; that the power to pardon includes the power to commute sentences in criminal cases. Id. at 140; see Randall v. Robinson, 736 So. 2d 1083 (Miss. Ct. App. 1999) (no state court may infringe on the Governor’s power to pardon, citing Whittington, supra). Perhaps most closely on point to this matter is the issue raised in Pope v. Wiggins, 69 So. 2d 913 (Miss. 1954). In Pope, this Court was asked to exercise judicial review over a Governor’s decision to revoke a pardon. In holding that the Governor could revoke the pardon without any kind of hearing to determine whether the conditions of the pardon had been met, the Court made clear the unfettered discretion of the Executive Department: Neither the judicial nor the legislative departments of the state are empowered to impose upon the chief executive the duty to perform judicial functions in the conduct of regular hearings in his office, even though in the exercise of his constitutional power of granting executive clemency there may be involved judgment and discretion in determining when he may be justified in revoking a suspended sentence ’for any reason deemed sufficient to the governor.’ He is the judge of the sufficiency of the information, from whatever source, in determining whether he has a reason that he is entitled to deem sufficient for his action. Id. at 9 (emphasis added). The Supreme Court very recently dismissed a matter that dealt with the Governor’s pardoning power. In Turner v. State, No. 2012-RR 0033 (Jan. 26, 2012), the Court stated: "As Turner’s requests relate to any eventual petition for clemency from the Governor, the Court finds that the power to grant reprieves and pardons is vested exclusively in the Governor by Section Id. at 109. The court in

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124 of the Mississippi Constitution of 1890 and that any request for testing as it relates to a clemency request should be dismissed without prejudice. Turner may pursue relief from the Executive Branch." The authorities cited by the Attorney General which he claims give our state courts the power to review pardons involve judicial review of very different actions taken by a governor. In Barbour v. State ex. rel. Hood, 974 So. 2d 232 (Miss. 2008), the court determined that a statute was ambiguous and that the governor’s construction of the statute, even if different from that of the attorney general’s interpretation, was permissible. Id. at 242. And in Fordice v. Bryan, 651 So. 2d 998 (Miss. 1995), the court reviewed whether the governor could veto parts of a legislative enactment and then sign the bill into law. The Constitution grants the governor the power to veto parts of an "appropriation" bill. Miss. Const. § 73 (1890). The court stated the "case turns on whether House Bills 1613 and 1502 are ’appropriation bills." Id. at 1000. It found that because the bills were not appropriation bills, the governor could not veto parts of them before signing them into law.

Barbour v. Delta

Correctional Facility Authority, 871 So. 2d 703 (Miss. 2004), and Holder v. State, 23 So. 643,
645 (Miss. 1898), contain a similar analysis turning on whether a bill is an appropriation bill. Thus, in these cases the State Supreme Court was not reviewing a constitutional power granted exclusively to the Governor, but an act of the Governor that unlawfully amended legislation duly adopted by the State Legislative Department under Section 338

The Attorney General also cites Haym v. United States, 7 Ct. Cl. 443 (1871), for the proposition that: "gubernatorial pardons are extraordinary acts requiring strict adherence at any conditions on them." However, the Haym court reviewed the language of the actual pardon granted to the plaintiff. Haym found that since the presidential pardon on its face required the person being pardoned to sign an oath and that person had not yet signed the oath, he was not yet pardoned. There was no judicial review of the "sufficiency of the facts or of the propriety of granting the pardon" prior to the President’s exercise of the pardon power, and Haym is inapposite. 12

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Judicial review of whether the applicant for a pardon has complied with the 30-day legal notice provision of Section 124 is prohibited once a gubernatorial pardon has been issued. As Justice Etheridge has explained: The Governor has many questions to decide in the performance of his duties, and his decisions on these questions are final and conclusive on the other departments of the Government. For instance, he is limited in granting a pardon to such cases as where publications have been made for 30 days in a newspaper of the county, but his decision as to whether the publication was made is not open to judicial review. State v. Metts, 88 So. 525, 530 (Miss. 1921) (Etheridge, J., dissenting) The reasons why are logical. Whether or not a person being considered for a pardon has given appropriate notice is a matter about which the Governor is the sole judge for it goes to the "sufficiency of the facts and the propriety of granting the pardon ...." Montgomery v. Cleveland, 98 So. at 114. The requirement of publication of notice of the application is wholly procedural in nature. It does not require that actual notice of a felon’s application for pardon be given to anyone, even the victim of a crime, his or her family members, or their representatives. It is not limited to felons who are incarcerated. It applies to every convicted felon, even one who has reentered the free world, is living with his or her family, and working as a productive member of society. Publication of the application is a form of constructive notice that may be satisfied by publishing the notice in "some" newspaper and in certain instances in a newspaper other than the county where the conviction occurred. In those instances where the representatives of the victim believe that the convicted felon is incapable of rehabilitation and wholly incorrigible or the sensational nature of the crime created extensive media coverage, publication in a newspaper of the submission of the application is often superfluous because members of the local community will have told the Parole Board, the Governor, and the general public about their opposition to clemency through 13

meetings or communications with his staff, press conferences, and organized letter writing campaigns undertaken by sympathetic organizations. The act of granting a gubernatorial pardon has been entrusted by the people under Section 124 to the Governor as the chief executive officer. The State Judicial Department does not have the authority under the State Constitution to review the actions taken by another Department of state government or a state constitutional officer, including the Chief Executive of the State, with respect to constitutional procedural rules that are related to the discharge or fulfillment of those duties that the State Constitution grants exclusively to a Department of state government or to one of its constitutional officers. See, e.g., Tuck v. Blackmon, 798 So. 2d 402 (Miss. 2001); Pope
v. Wiggins, 69 So. 2d 913 (Miss. 1954); Montgomery v. Cleveland, 98 So. 111, 114 (1923); State v. Metts, 88 So. 525, 530 (Miss. 1921) (Etheridge, J., dissenting). The framers of the Mississippi

Constitution of 1890 were familiar with this sound principle which was part of the positive law of Mississippi when the present Constitution was adopted, and the principle is based in part on the strict separation of powers provisions of Sections One and Two of the State Constitution. Compare Hunt v. Wright, 11 So. 608 (Miss. 1892), with Ex Parte Wren, 63 Miss. 512 (1886). Had the framers of the Constitution believed that the 30-day notice provision was to be treated as a substantive limitation on the clemency power rather than a procedural rule, or for that matter, that any review by the State Judicial or Legislative Departments of an applicant’s compliance with the 30-day notice provision was permitted, the framers would have expressly provided for such review just as they expressly provided for senate review of the exercise of the clemency power related to cases of treason and impeachment. The decisions of the Mississippi Supreme Court finding that the Governor’s final act of granting a pardon is unreviewable are in accord with those states with similar constitutional 14

provisions. Courts as early as 1883 held that the state judiciary is without authority to inquire into a pardon. In Knapp v. Thomas, 39 Ohio St. 377, 391 (Ohio 1883), the appellate court wrote that it would be a "usurpation of authority" if the court tried to interfere with the governor’s pardon power. The court explained that each branch of government can best safeguard its own powers and jurisdiction by refraining from interfering with those rights held by the other branches. Over 100 years later, the Florida Supreme Court reaffirmed this principle: Whatever may have been the reasons for granting [or denying] the pardon, the courts cannot decline to give [the decision] effect ... and no court has the power to review grounds or motives for the action of the executive in granting [or denying] a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the governor in the exercise of the pardoning power would be the manifest usurpation of authority. Wade v. Singletary, 696 So. 2d 754, 756 (Fla. 1997). As one noted legal encyclopedia explains: An executive may grant a pardon for good reason or bad, or for any reason at all, and the act is final and irrevocable. Even for the grossest abuse of this discretionary power the law affords no remedy; the courts have no concern with the reasons for the pardon. The constitution clothes the executive with the power to grant pardons, and this power is beyond the control, or even the legitimate criticism, of the judiciary. 59 Am Jur. 2d Pardon and Parole § 44 (2002).
II. The Enactments Of The Mississippi Legislature Show That The Power To Pardon Lies Solely With The Governor.

The State seeks to avoid the import of the Mississippi court decisions that directly deal with pardons under the Mississippi Constitution by citing cases from other jurisdictions. The State cherry picks certain quotes in support its position, even though those decisions address different issues. In Anderson v. Commonwealth, 107 S.W.3d 193 (Ky. 2003), a felon brought suit claiming the governor’s pardon included the restoration of his right to sit on a jury. The court said that the plain language of the pardon was limited to a restoration of his rights to vote and to hold office. There was no dispute as to the ability of the governor to have granted a pardon that included the right to sit on a jury. And in State ex. rel. Maruer v. Sheward, 71 Ohio St. 3d 513, 644 N.E.2d 369 (1994), and Jamison v. Flanner, 116 Kan. 624, 228 P. 82 (1924), the constitutional pardoning provisions were significantly different from those of the 1890 Mississippi Constitution in that they provided that the governors’ power as to all pardons was subject to regulation by the legislature.

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The Legislature has enacted numerous statutes that affect the rights and privileges of state prisoners. These statutes evidence a legislative intent that none shall be deemed to affect or constrict the Governor’s constitutional power to pardon. Miss. Code § 47-7-5 (2011) sets forth the duties and powers of the State Parole Board. Section 47-7-5(3) provides that the Board "shall have exclusive responsibility for investigating clemency recommendations upon request of the Governor." Section 47-7-5(2) directs the Parole Board to notify a victim’s family when a convicted felon is being considered for a pardon. The Board has no authority to infringe, modify, or overturn in any manner whatsoever any pardon decision by the Governor regarding pardons. While the Board can make recommendations in favor of or opposed to clemency, the ultimate decision lies solely in the sound discretion of the Governor. Similarly, Miss. Code § 47-5-157 (2011) sets forth some of the procedures when an "offender" is entitled to discharge from the custody of the Mississippi Department of Corrections by "parole, pardon or otherwise." This includes that the Department give 48-hour notice before release of the offender as required by Miss. Code § 47-5-177 (2011). Section 47-5-177 requires that the Department send notice in cases of discharge, including pardon, to the sheriff of the county and to the chief of police of the municipality where the offender was convicted, or if the offender is paroled to another county, to certain officials in that county. These statutes place no limits on the pardon authority of the Governor. With respect to a conditional pardon, the Legislature has expressly recognized that it is only the Governor, and not a court, who may set aside such a pardon. See Miss. Code § 99-19-

29 (2011). When revoking a conditional pardon, the action of the Governor taken under Section 124 is unreviewable by the courts. See Pope v. Wiggins, 69 So. 2d 913 (Miss. 1954).

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Miss. Code § 7-1-5 (2011), which enumerates the duties and powers of the Governor, specifically lists some of the constitutional duties of the Governor. For example, Section 7-1-5 (c) states that "he shall see that the laws are faithfully executed." Similarly, Section 123 of the Mississippi Constitution states that "the governor shall see that the laws are faithfully executed." Nowhere in Section 7-1-5 does the Legislature purport to regulate the exercise of the pardon power vested in the Governor. The Mississippi Legislature has thus recognized that no such statutory authority is permissible.
III. There Is No Express Or Implied Remedy For An Alleged Violation Of The 30 Day Notice Provision, And Only The Legislature Has The Authority To Grant Such A Remedy.

The Legislature has not made it a crime for the recipient a pardon to fail to comply with the 30-day notice period found in Section 124. This is not surprising because the judicial precedents of the State Supreme Court show that the 30-day notice provision is wholly procedural in nature and is a matter related to the Governor’s exercise of his exclusive authority. Assuming for the sake of argument that the Legislature has the authority to adopt such legislation, any such applicant is entitled to know as a matter of due process what legal effect arises from failure to comply with the 30-day requirement, including the penalties or forfeitures to which he or she will be subjected. Miss. Const. § 14 (1890); U.S. Const. Fourteenth Amend. The Court cannot nullify a gubernatorial pardon issued under Section 124 except for three limited circumstances, none of which apply here. Thus, the Court cannot put someone who has been pardoned and released as a result of the pardon in jail; refuse to release a person who is incarcerated and has been pardoned; or nullify a pardon granted to someone who has been in the free world because he has allegedly violated the 30-day publication provision of Section 124. Section 33 of the Mississippi Constitution vests the "legislative power" in the State Legislature, 17

4.

Miss. Const. § 33 (1890), and only the State Legislature has the authority to make it a criminal offense or create a penalty for the failure of the recipient of a pardon to comply with the 30-day publication provision. To order that the pardonees must return to the custody of the Mississippi Department of Corrections or be arrested; that those pardonees who are incarcerated must remain in the custody of the Mississippi Department of Corrections; or that any pardonees who failed to publish for 30 days could be made to suffer any penalty, including forfeiture of their pardons, is wholly beyond the judicial power conferred by the Mississippi Constitution upon the state trial and appellate courts. Any such order would violate the separation of powers provisions of Miss. Const. §§ 1-2 (1890), which gives legislative power solely to the Legislature. 2d 402 (Miss. 2001).
IV. Petitioners Are Not Applicants Under Section 124, and the 30-Day Notice Provision Does Not Apply To Them.

See Tuck v. Blackmon,

798 So.

Section 124 of the Mississippi Constitution of 1890 contains two sentences. The first sentence confers the Governor’s general pardon power and states that in all criminal and penal cases, "the governor shall have the power to grant reprieves and pardons . . . ." The second sentence contains limitations on the general pardon power in cases of treason, and it also provides that "after conviction, no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper. . . ." (Emphasis added.) According to the plain language of Section 124, publication is required only where there is an applicant. In the case of the Petitioners, they served as Mansion trustees and never applied to Governor Barbour or the State Parole Board for a pardon. Instead, it was Governor Barbour who decided to exercise the

general pardon powers conferred solely upon the chief executive by the first sentence of Section 124 and to pardon Petitioners. Black’s Law Dictionary (9th ed. 2009) defines an applicant as "[o]ne who requests something; a petitioner, such as a person who applies for letters of administration." As set forth above, Petitioners never requested anything. Therefore, under the plain meaning of the term "applicant," they are not subject to the publication requirement. Even if the Court were to go beyond the plain language of Section 124, and it should not, this reading of Section 124 makes common sense in the broader picture. Where the Governor knows and has observed the acts of persons such as Petitioners, it is the Governor’s prerogative to grant a pardon, or not, as he sees fit. Thus, there is no need for an application and no need for publication. Where one convicted of a felony, however, decides to apply independently to the Governor for a pardon, in most cases the Governor will have no information concerning the applicant and additional information may assist him in making a clemency decision. The obvious purpose of the publication requirement is to allow those who know the applicant as well as those that have been affected by the applicant’s crime to come forward and give the Governor information that he can consider in making a pardon decision. In contrast, where the Governor has made the decision to grant a pardon based on his own knowledge and investigation, the publication requirement does not serve any purpose. Accordingly, because Petitioners did not apply for a pardon and, therefore, are not "applicants," they are not subject to the 30-day notice provision of Section 124, and their pardons are in no way affected by any purported failure to publish.

19

V. Even If This Case Were Justiciable - Which It Is Not - The Attorney General’s Interpretation Of The 30-Day Provision Is Demonstrably Incorrect.

General Hood erroneously contends that the requirement in Section 124 of the Mississippi Constitution requires publication for five consecutive weeks if a weekly newspaper or, if in a daily, 30 consecutive days. This position is wrong for at least three reasons. First, had the framers of the 1890 Constitution desired such a requirement, they could have written the provision to state that notice shall be "for 30 consecutive days." They did not. Instead, a plain reading of the text requires only that the notice have been "published for 30 days." In other words, that the notice was published at least 30 days before the date of the pardon. General Hood cannot insert words into the Constitution that the framers chose not to include. Second, in interpreting a similar notice requirement, the Mississippi Supreme Court ruled long ago that consecutive publication for 30 days is not required. In Henritzy v. Harrison County, 178 So. 322 (Miss. 1938), the statute at issue required Harrison County to publish notice in the newspaper of its intent to condemn private property for use in the construction of a seawall. The statute provided that "publication may be made to the owners of lands sought to be condemned for such right of way as is here involved for thirty days in a newspaper." The affected landowners argued that because the notice was not published for 30 consecutive days, the taking was barred. The Court disagreed and held that "[t]he requirement of a given number of day’s publication of a notice has been quite uniformly held not to contemplate a daily printing of the notice." Id. at 327. Thus, General Hood’s interpretation of the similar language in Section 124 is foreclosed by the holding in Henritzy.

Ai]

Third, General Hood’s attempted insertion into the Constitution of a "30 consecutive days" requirement ignores the reality that many of the county newspapers published in this state are weekly, not daily, papers. Accordingly, for many of the newspapers in which the notices are to be published, it is impossible to publish a notice for 30 consecutive days. Instead, what is customarily done is to publish the notice once a week for four consecutive weeks. In the Court expressly approved of this practice. Henritzy,

Id. at 326 (holding that where a notice "was

published in a newspaper weekly for four consecutive weeks," the 30-day publication provision was satisfied). To the extent that General Hood (in his own interpretation of the Governor’s powers granted by the Constitution) would require publication for 5 weeks, or 35 days, such a

requirement would add to the time period contained in Section 124 and is, itself, unconstitutional.
VI. If The State Supreme Court Overturns 125 Years of Judicial Precedent And Announces A New Principle of Substantive Law, It Should Not Apply This New Principle To The Pardons Received By Petitioners Or Any Other Pardonees.

The Attorney General’s suit is an effort to overrule over 125 years of precedent of the Supreme Court of Mississippi which holds that one Department of the State Government Department does not have the authority to obtain judicial review of the actions taken by another Department of State Government with respect to constitutional procedural rules that are related to the discharge or fulfillment of those duties that the State Constitution grants exclusively to a Department of State Government or to one of its constitutional officers. See, e.g., Tuck v.

Blackmon, 798 So. 2d 402, 405 (Miss. 2001) ("[t]he courts will generally refrain from interfering with the Legislature’s interpretation and application of its procedural rules and with its internal operations"); Pope v. Wiggins, 69 So. 2d 913, 915 (Miss. 1954) (the pardon power "is not limited by any other provision of the State Constitution, nor can the same be limited or restricted 21

by either of the other two principal departments of the state government in the absence of a constitutional amendment so authorizing");
State v. Metts, 88 So. 525, 530 (Miss. 1921)

(Etheridge, J., dissenting) ("The Governor has many questions to decide in the performance of his duties, and his decisions on these questions are final and conclusive on the other departments of the Government. For instance, he is limited in granting a pardon to such cases as where publications have been made or 30 days in a newspaper of the county, but his decision as to whether publication was made is not open to judicial review."); (Miss. 1892); ExParte Wren, 63 Miss. 512 (1886). To overturn this longstanding, well established precedent and to enforce the procedural 30-day notice provision as a substantive principle of law for the first time would be to establish a new substantive principle of law about which the pardoned defendants had no notice. To order that the pardon granted to any pardoned defendant is null and void because of any pardoned defendant’s putative failure to comply with the procedural 30-day notice provision erroneously would require judicial review of the Governor’s exercise of his constitutional authority to grant pardons. Any such order further requires either that the Circuit Court erroneously issue an order directing that a pardoned inmate be returned to the custody of the MDOC and become incarcerated or that a pardoned inmate remain in the custody of the MDOC. As demonstrated by the authorities above, the state Judicial Department has consistently refused to exercise its judicial power to determine if another State Department of Government created by the State Constitution or another State constitutional officer has complied with a constitutional procedural requirement after the State Department or constitutional officer has officially acted. To provide the relief sought by Plaintiff would deny each pardoned defendant substantive and procedural due process of law as guaranteed by the Due Process Clause of the 22
Hunt v. Wright, 11 So. 608

Fourteenth Amendment to the United States Constitution and Section 14 of the Mississippi Amendment Constitution of 1890. Accordingly, if the Mississippi Supreme Court overturns or disregards the forgoing 125 years of precedent, the Court should apply the new substantive principle of law prospectively only, and as a matter of fundamental fairness, any such new substantive rule should not be applied to the pardoned defendants. In Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the Supreme Court of the United States held that there should be no retroactive application of a new rule of law where, in the face of reliance on the prior rule of law, the new decision "could produce substantial inequitable results if applied retroactively." Id. at 106-07. Here, where the Mississippi Supreme Court has

repeatedly held that the application of procedural requirements is solely within the discretion of the branch to which the procedures are delegated, it would be fundamentally unfair to not only change the law, but to hold that prior, good faith reliance on 125 years of decisions is misplaced. Accordingly, no matter how the Court now rules concerning the publication provision of Section 124, any such new rule should only be applied prospectively.
VII. Even If This Case Were Justiciable - Which It Is Not -. Failure To Comply With The 30-Day Publication Provision Is Harmless Error.

In Chapman v. California, 386 U.S. 18, 22 (1967), the United States Supreme Court defined harmless errors as "constitutional errors which in the setting of a particular case are so unimportant and insignificant" that they do not mandate automatic reversal of conviction. The Mississippi Supreme Court applies the Chapman analysis when reviewing constitutional error. According to the Court in Richardson v. State, 74 So. 3d 317 (Miss. 2011): Harmless errors are those which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction. Williams v. State, 991 So.2d 593, 599 (Miss. 2008) (quoting Tran v. State, 962 So.2d 1237, 1247 (Miss. 2007)). We "have 23

the duty to be fair, not only to the defendant, but to the State as well." Tran, 962 So.2d at 1246. "Harmless-error analysis is often necessary to prevent unfair prejudice to the State, and the State is certainly prejudiced where convictions are reversed based on errors which do not affect the substantial rights of the parties." Id. (citations omitted). 74 So. 3d at 327-28. Harmless error analysis also applies in civil cases. For purposes of this analysis, courts distinguish "structural error" from "harmless error." In Kindhearts for Charitable Humanitarian Development v. Geithner, 710 F. Supp. 2d 637 (N.D. Ohio 2010), the court explained: "Structural errors typically arise in the context of criminal trials. A structural error is "a defect in the framework within which the trial proceeds, rather than simply an error in the trial process itself." Neder v. U.S., 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1 999)(internal citation omitted). Because they "deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, "structural errors per se require setting aside the entire proceeding. Id. at 8-9, 119 S. Ct. 1827. By contrast, trial-type errors are subject to harmless error analysis, because they "may be quantitatively assessed in the context of other evidence presented ... to determine" the effect of the error. Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Judicial review of agency action under the APA, moreover, contemplates a harmless error analysis. 5 U.S.C. § 706 ("[A] court shall review the whole record ... and due account shall be taken of the rule of prejudicial error."); see also Shinseki v. Sanders, U.S. , 129 S.Ct. 1696, 1704, 173 L.Ed.2d 532 (2009) (noting that "the APA’s reference to ’prejudicial error’ is intended to sum up in succinct fashion the ’harmless error’ rule" (internal quotation and citation omitted)). An analogy may assist to clarify the distinction between structural errors and those amenable to harmless error analysis. If the proceedings before OFAC were a house, and termites represented OFAC’s constitutional violations, the question of whether the violations rise to the "structural" level is whether the termites’ damage to the structural integrity of the house is so significant as to require demolishing and completely rebuilding the house, or whether repairs can return the house to a safe and stable condition. In other words, I must determine whether what was done was irreparably destructive, or simply damaging, even seriously damaging. 710 F. Supp. 2d at 653-54 (emphasis added). The analogy in Kindhearts is instructive in the instant case. The Attorney General asks the Circuit Court to "demolish" the pardons because of an alleged constitutional violation that

undisputedly would not have affected the outcome, i.e., the issuance of the pardons. The publication provision is for the benefit of the Governor as the chief executive officer. The only logical purpose of this provision is for the Governor to have an opportunity to consider public comment when deliberating about whether to exercise his exclusive constitutional clemency authority. To find "structural error" the Circuit Court must find that the failure to comply with the publication provision resulted in actual prejudice, that is, the party alleging error must show that publishing notice for 30 full days would have affected the outcome. There is no constitutional or statutory provision requiring the Governor to do anything in response to the publication. There is no constitutional provision for anything to happen as a result of the proposed publication. The only individual who can attest to whether or not the failure to publish would have resulted in a different outcome is the Governor who issued the pardons. To make such a finding, this Court must impermissibly delve into the deliberative process of the Governor when granting a pardon. Without delving into the deliberative process of the Governor, this Court cannot find structural error, and it must therefore conclude that any constitutional error resulting from the failure to publish notice was harmless constitutional error.
VIII. The Attorney General Is Estopped From Claiming That The Notices Were Untimely When His Special Assistant Attorney General Assigned to the MDOC Undertook To Publish The Notices For Petitioners.

Consistent with Miss. Code § 47-7-5(3) (2011), the Parole Board has the exclusive responsibility for investigating clemency recommendations upon request of the Governor. Individuals seeking clemency may apply to the Governor’s Office or to the Parole Board. If the former, then the Governor’s staff routinely sends the application or other request for clemency to the Parole Board for investigation.

25

.4

The Parole Board investigates the application typically by having one of its investigators meet with the applicant, the prosecuting attorney, law enforcement, victims and/or supporters of the applicant. The investigator gives a report of the investigation to the Parole Board, and where possible and necessary, the Parole Board itself interviews the applicant. 10 The five-member Parole Board then votes on whether to recommend clemency to the Governor. As was done with the previous pardons granted by the Governor at the end of his first term in 2008, as well as in 2009, the MDOC undertook the responsibility to arrange for the publication of, and payment for, notices under Section 124 of the Mississippi Constitution for the trusties who worked at the Governor’s Mansion and were in the custody of MDOC. Daryl Neely, the Governor’s policy advisor for Corrections, had numerous conversations with MDOC about publication for the Mansion trusties and other inmates in the custody of the MDOC. Until November 28, 2011, his main contact at the MDOC was Commissioner Epps. On November 23, 2011, the Governor met with his staff regarding pending pardon requests, discussing in particular the pardons of the mansion trusties. After that meeting, Neely talked to Commissioner Epps about publication of the notices on behalf of the trusties. Following up on that conversation, on November 28, 2011, David K. Scott, the Special Assistant Attorney General assigned to MDOC, texted Neely about Section 124 of the Mississippi Constitution from Scott’s cellular phone to Neely’s cellular phone. Their communications about publication for the inmates in the custody of the MDOC continued through December 7, 2011, Mansion trusties do not have pardon files at the Governor’s office or at the Parole Board. They have in a sense "living files" because both the Governor and the First Lady, as well as the Highway Patrolmen assigned to the Governor’s security, observe them every day and provide the information on which the Governor makes his decisions as to clemency. Some mansion trusties have been paroled by the Parole Board; some trusties have been pardoned by the Governor. Some inmates do not successfully complete their terms at the mansion because they failed to follow the rules. They are sent back to the custody of the MDOC to serve the rest of their term. 26
10

when Scott stated that "MDOC will take care of those still in custody." True and correct copies of printed screens of the text messages exchanged between Scott and Neely appear below." The messages from Scott are the ones that appear in gray, and the messages from Neely appear in green.

The time entry at the top of each screen shows the time of day when the screen was printed. The date when each message was sent appears in the body of the screen itself.

27

4:17 PM

25%

you provide the ries of the inmates that need to run a notice
1

Dec 6, 2011 5:16 PM

Okay

Messaqe

Dec 7,201110-58 AM

ELI

29

Qka)
r

Ja 13 2O2O.6A.

aL Text Message

30

MDOC staff arranged on December 8, 2011 for the notices to be printed in the papers of the counties of conviction of your four Petitioners for four weeks as follows: > Legal ad for David Gatlin in The Rankin Record to run once a week for four weeks during the weeks of December 11th, 18t" , 25 th and January 1st Legal ad for Charles Hooker in the Clarkdale Press Register to run twice weekly during the weeks of December 11 th , 18 th 25th and January 1st Legal ad for Nathan Kern in the Clarksdale Press Register to run twice weekly during the weeks of December 11t, 18’, 25th and January 1st > Legal ad for Anthony McCray in The Enterprise-Journal to run the weeks of December 1 1 th, 18th 25 " and January 1st and 8th. Special Assistant Attorney General David K. Scott was copied on the MDOC memo outlining these dates. The Complaint alleges that the notice for Petitioners Hooker and Kern was first published on December 14 and for Petitioner Gatlin on December
15. Thus, despite the failure

of Mr. Scott to effect the publication 30 days before their pardons, it is uncontested that these Petitioners published at least 23 and 22 days, respectively, before issuance of their pardons. As to Petitioner McCray, Special Assistant Attorney General David K. Scott or his designee requested that publication begin December 12, 2011, but the paper that received the notice failed to publish the notice because no payment was enclosed. Petitioner McCray’s publication first ran on January 15, 2012. On January 6, 2012, the Governor signed executive orders pardoning the trusties at the mansion. Neely spoke to Commissioner Epps about providing the notice to the sheriff of the county and the police chief of the city where the pardonees had been convicted, pursuant to Miss. Code § 47-5-177 (1972). MDOC provided the notice of release of the mansion trusties on January 6, 2012. The Attorney General, having represented to the Governor that his office and MDOC would undertake to publish the notices for the mansion trusties, 31 and having actually effected

publication, cannot now complain about the propriety of the notice. Equitable estoppel and
quasi-estoppel apply to bar these claims.
12

Equitable estoppel is "the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed." Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991). "Equitable estoppel is a rule of justice which prevails over all other rules" and can even, in proper cases, supplant the constitution.

Id. at 137. Black’s Law Dictionary explains that estoppels can arise by
An estoppel that arises when one makes a statement

representation: "estoppel by representation:

or admission that induces another person to believe something and that results in that person’s reasonable and detrimental reliance on the belief."
BLACK’S LAW DICTIONARY (9th ed. 2009).

Here, David K. Scott, acting in his official capacity as Special Assistant Attorney General, Miss. Code §§ 7-5-5, 7-5-7 (2011), represented to Daryl Neely, the Governor’s corrections policy advisor, on December 7 via text message that "we will do that," i.e., handle notice publication, and that "Mdoc will take care of those still in custody." The Governor’s Office relied on this representation. This reliance was reasonable because in 2008 the Attorney General’s office undertook the duty to publish notice and did so properly. The reasonable reliance will result to the detriment of Petitioners, viz., their pardons being nullified and their

There should be no legitimate dispute from anyone that the doctrines of waiver and estoppel can apply to the State as a result of the actions of the Attorney General. See, e.g., Weible v. University of Southern Mississippi, --- So. 3d ----, 2011 WL 5027203, *14 n.5 (Miss. Ct. App. Oct. 18, 2011) ("We note, however, that the state can be estopped by the acts of its authorized agents."); Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So. 2d 416, 424 (Miss. 2004) ("the state and its political subdivisions may be equitably estopped under the proper circumstances (quotation marks omitted) (collecting cases). 32

12

being taken into custody and returned to MDOC and incarcerated in one of its facilities. Thus, the State should be estopped to complain that the notices are defective. Quasi-estoppel also bars the Attorney General’s suit. The "long-standing doctrine [of quasi-estoppel] is applied to preclude contradictory positions by preventing a person from asserting, to another’s disadvantage, a right inconsistent with a position previously taken." TC.B. Const. Co. v. W.C. Fore Trucking, Inc., --- So. App., Nov. 15, 2011). Indeed, when Scott texted to Neely asking "Can you provide the names of the inmates that we need to run a notice for?" (emphasis added) and telling Neely that "Mdoc will take care of’ notice for the mansion trusties, Scott took a position on behalf of the Attorney General’s office that is contradictory to the position it now takes. The former position was that the Attorney General’s office and MDOC would perform the duty of publishing notice. The position taken here is that the pardonees or the Governor’s office were required to effect publication. Quasi-estoppel prevents General Hood from now asserting this contradictory position because it would disadvantage and prejudice Petitioners.
IX. Petitioners Will Suffer Irreparable Harm If This Honorable Court Does Not Grant An Emergency Stay And Provide Guidance As To The Controlling Legal Principles That Govern Any Evidentiary Hearing Held By The Circuit Court.

3d ----, 2011 WL 5530288, *4 (Miss. Ct.

Supposing, arguendo, that the Circuit Court has jurisdiction to weigh the validity of the pardons, the Circuit Court has already announced that there will be one issue, and one issue only, at the February 3 hearing, viz., the date(s) that an applicant published notice that complied with Section 124. See Order, at 2 (Jan. 24, 2012); attached as Exhibit F. Thus, Petitioners will not be given any opportunity to be heard on any other legal or equitable defense to this suit, including, most remarkably, whether a Governor’s grant of a pardon is reviewable, the correct 33

interpretation of Section 124, why the State should be estopped, or any other point. The court has also already denied the Motion to Transfer or Dismiss which raised the issues of subject matter jurisdiction and separation of powers. See Order, at 1 (Jan. 24. 2012); attached as Exhibit F. This is not the sound exercise of discretion; it is the very abuse of judicial discretion. Zolfo, Cooper & Co. v. Sunbeam-Oster Co.,
See

50 F.3d 253, 257 (3" Cir. 1995) (abuse of

discretion "if the judge fails to apply the proper legal standard or to follow proper procedures in making the determination, or bases an award upon findings of fact that are clearly erroneous") (internal quotation marks omitted). In the final analysis, it would be a denial of due process to have a judicial hearing limited to the claim of the State without regard to the legal and equitable defenses of Petitioners, Miss. Const. § 14 (1890); U.S. Const. Fourteenth Amend., and therefore would constitute irreparable harm requiring this Honorable Court’s emergency intervention and stay.
CONCLUSION

1.

A writ of prohibition may issue "to prevent some palpable and irremediable injustice."

State v. Maples, 402 So. 2d 350, 351 (Miss. 1981). Imprisoning a person who holds a valid

pardon constitutes a "palpable and irremediable justice." See Exparte Burchinal, 571 So. 2d 281 (Miss. 1990) (granting writ of prohibition against contempt order, where contemnor-applicant was to be jailed for ten days). See also State v. Caldwell, 492 So. 2d 575, 576-77 (Miss. 1986) (granting what amounted to a writ of prohibition to protect murder defendant against trial in improper venue, notwithstanding that any error could be corrected on appeal after conviction) (implicitly recognizing that experience of being defendant in illegal trial for murder could not be remedied simply by granting a new trial at some future date). The relief sought by this Petition is a writ of prohibition ordering that the Circuit Court not exercise any further jurisdiction and to 34

enter an order dismissing the suit with prejudice or, in the alternative, to enter an emergency stay of any further proceedings in the Circuit Court pending receipt of briefing on the issues raised this Petition and a final resolution of those issues by this Court. 2. Petitioners cannot obtain the requested relief by interlocutory appeal or by appeal from

final judgment because they will be irreparably harmed by the Circuit Court’s continued assertion of jurisdiction over Petitioners and those pardonees who are in the custody of the MDOC and remain incarcerated. 3. An emergency stay of proceedings in the trial court pending issuance of the writ is

needed because the very pendency of the suit constitutes irreparable harm to Petitioners and all those recipients of the Governor’s pardons who are in the custody of MDOC and remain incarcerated. 4. In the alternative, Petitioners request permission to appeal the interlocutory orders of the

Circuit Court under Miss. R. App. P. 5. In response to the Complaint, Defendants filed a Special Appearance for Purposes of Motion to Transfer and/or Motion to Dismiss, including a separately filed Supplement. See Special Appearance for Purposes of Motion to Transfer and/or Motion to Dismiss (Jan. 20, 2012), attached as Exhibit I; Supplement to Special Appearance for Purposes of Motion to Transfer and/or Motion to Dismiss (Jan. 23, 2012), attached as Exhibit J. The Motion for Transfer argues there are no provisions under the Uniform Rules of the Local Rules for Judge Green to have the case moved to her docket, and the matter should be re-assigned to Judge Weill. The Motion to Dismiss raises issues under Rule 12 of the Mississippi Rules of Civil Procedure, including the subject matter jurisdiction of the Circuit Court to judicially review, under the strict separation of powers provisions of the State Constitution, a decision which is within the exclusive constitutional authority of the State Executive Department. An 35

Order was entered denying the Motion to Transfer or Dismiss on January seek permission to appeal, with emergency stay, this Order. 5.

25. Your Petitioners

Consideration will materially advance the termination of the litigation. If, as Your

Petitioners assert, the Court is without jurisdiction to review the actions of the Executive, the entire proceeding should be dismissed immediately. Further, the granting of the Petition is necessary to protect Petitioners from irreparable injury, specifically, the possibility of being returned to prison after receiving a valid pardon. In addition, the issues raised herein are important to the administration of justice. In addition to separation of powers, the issue of whether one Circuit Judge may sign an order, without any authority from the Uniform or Local Rules, re-assigning a case from the randomly selected Judge is crucial to public confidence in the official acts of the state trial courts. With respect, as a result of the non-random assignment, all of the proceedings in this case have lacked legitimacy and all orders entered in the Circuit Court should be vacated and set aside. FOR THESE REASONS, Petitioners pray that this Court will issue the writ of prohibition and/or mandamus requested by this Petition, or, in the alternative, that this Court will treat this petition as an interlocutory appeal by permission, stay all proceedings in the trial court, dismiss the State’s suit, and order such further proceedings as the Court deems appropriate. ACCORDINGLY, Petitioners respectfully request that this Court issue a Writ of Prohibition and/or Mandamus to the Circuit Court to dismiss the complaint, or to stay all further proceedings before the Circuit Court pending briefing on this Petition or, in the alternative, on the interlocutory appeal before the Supreme Court of Mississippi and a decision of the Supreme Court regarding the Circuit Court’s exercise of jurisdiction over the suit brought by the State and for such other general or special relief as may be appropriate. 36

Respectfully submitted, the 30th day of January, 2012. Respectfully submitted, DEFENDANTS CHARLES HOOKER, DAVID GATLINATHAN KERN AND ANTHONY 7? MCC Y

-THOMAS M. FORTNER /
THEIR ATTORNEY

OF COUNSEL: ERIK M. LOWREY, P.A. Attorneys at Law Thomas M. Fortner MSB No. 5441 Richard A. Filce MSB No. 100554 525 Corinne Street Hattiesburg, MS 39401 601.582.5015 601.582.5046 (fax)

37

CERTIFICATE OF SERVICE
I, Thomas M. Fortner, do hereby certify that I have this date caused to be served by handdelivery or mailed via U.S. Mail, postage prepaid and via e-mail a true and correct copy of the above and foregoing Petition for Writ of Prohibition and/or Mandamus to: Honorable Jim Hood, State Attorney General Special Assistant Bridgette Wiggins Attorney General for the State of Mississippi P.O. Box 220 Jackson, Mississippi 39201 bwill(ago.state.ms.us Alison Oliver Kelly, Esq. Alison Oliver Kelly, PLLC P.O. Box 1644 Jackson, MS 39215 kellymdlO@aol.com Sylvia S. Owen, Esq. OWEN LAW FIRM P. 0. Box 7252 Tupelo, MS 38802 owenlawfirm@comcast.net Honorable Tomie T. Green Circuit Judge, Seventh District First Judicial District of Hinds County, Mississippi Hinds County Courthouse Jackson, MS 39201 fashley@co.hinds.ms.us Honorable David K. Scott Special Assistant Attorney General Mississippi Department of Corrections 723 North President Street Jackson, MS 39201 dscott@mdoc.state.ms.us Cynthia A. Stewart, Esq. 118 Homestead Drive, Suite C Madison, MS 39110 cstewart@mississippitrial.com

38

Edward Blackmon, Jr., Esq. Blackmon & Blackmon 907 W. Peace Street Canton, MS 39046 Edblackmon@blackmonlawfirm.com John M. Colette, Esq. 190 B. Capitol Street, Suite 475 Jackson, MS 39201 John@colettelaw.com THIS, the 30th day of January,

THOMAS M. FORTNER

STATE OF MISSISSIPPI
SECRETARY OF STATE’S OFFICE
DELBERT HOSEMANN
SECRETARY OF STATE JACKSON, MISSISSIPPI

I, Delbert Hosemann, Secretary of State of the State of Mississippi, do hereby certify that the within and attached is a true and correct copy of

Executive Order No. 1069

OFFICIAL PARDON FOR NATHAN KERN

the original of which is now a matter of record in this office.

Given under my hand and Seal of Office this the 18th day of January, 2012

f..
c0f

cJ,\

STATE OF MISSISSIPPI I.hereby Certify that this isatnie’ and complete copy of the.. docun)ent on file in this office. ,20t2’Jo.x. (Q,i DA

BY:’
This Certification Stamp Replaces Our Previous Ce r tification System.

STATE OF MISSISSIPPI
Office of the Governor

I’XE(’LYIl\’E ORDER NO. 1069

10 %VIIOM IF IAV CONCERN: WHEREAS. Nathan Kern, M Lsissippi Department ii I Curreeiinto No. 31 02). was, sentenced to serve three (3) years in Cause Number S(35 on i\tlt4lu.cl I. 19721 in ("whoola Count.’ lot the 0 ReuSe ol But’vl:ir, 1.0 serve t\\ eiity (21 ) veins in Cause No. 572$. nit Fettruarv 11. 974 in Coa Iioina Couiity br the utletuic ui Rubbery, and to serve a lii sentence in Ca usc No. 642Q, on Feb ruary 12, 1952 in C. uahunta County on the cIiiic iii Rubhcr \YIIEREAS. Nathan Kent became a trusty and was u’aiisien’ed to the (iuxentor’s M:itinit. ’. here he proved to he ii diligent and dedicatetl iwkmin: and. NOW. LII EREFORE. I, I late IRiih&ttir, Governor ul’ the Slate cit Mississippi. utidcr atid b virtue of the authority vested in me by the ( ’misfit ution and Laws of this State. do heretiv wam to Nathan Keni it fill. cunipke, tiiid tineoti.htiviiiil padun kit hi erunes and convict inns named herein: and hettcctbrth. shah be absolved ftnni all kual conseqttellees ofthtese .,’riiiies and coii ViCtiolis. I do authorize and direct you, upon receipt oh this Executive Order. Cu take not ice vented accord ii ilv. IN WITNESS \VIIEREOJ". I have hei’etiiuo set my hand and caused the ( ireat Seal ut’the State of Misisrppi to be affixed. itt the (.’iipitol. in the Cur oh’.tacksttii, this the tuft day January, iii 111c year of our Lord too tiu.uus:ind :uid twelve, :iuud oh’ the two hiunlred and thuitivixiht ear oh the Ull !’uies cuiAmer

at id be

/ I-I\LE\’. 13A/(30IJR GOVT z BY I IF (i\’IRNOR

C.
Sh’(Rl....ARY OF STA1 ti

.4

STATE OF MISSISSIPPI
SECRETARY OF STATE’S OFFICE
DELBERT HOSEMANN
SECRETARY OF STATE JACKSON, MISSISSIPPI

I, Delbert Hosemann, Secretary of State of the State of Mississippi, do hereby certify that the within and attached is a true and correct copy of

Executive Order No. 1071

OFFICIAL PARDON FOR CHARLES HOOKER

the original of which is now a matter of record in this office.

Given under my hand and Seal of Office this the 18th day of January, 2012

. ci
(\

. ..

i

STATE OF MISSISSIPPI Iheroby certify that this iatrue and cornpfcla copy.ot the.: document on file in this offlc3. DATED .2fl

OFFIC\I/C)

BY: U.

Il

I

J(

This Certification Sta.qp Rpaces Our Previous Certification y5tern.

STATE OF MISSISSIPPI
Off ice of Llie Governor

EX(L)1’1’E ORDER NO. 1071

TO WHOM IT MA\ CONCERN: saippi Department ol t_oriections No. 7485. \IIEREAS. Charles Htokei v1 was sentetteed in Cause Number 742 in ( oaliotu:t County. Mississippi on February 4. 92. to sene a jt sentence on a charue of .Murder: and. \VihERE:S. (’bathes Hooker bc’;tnie a lntsy and eats ttauislrrcd to the kiciitnt’ Ma osiolt. where be proved to he a diligent and dedicated workman: and.

NOW, II I EREFORE. I, Iliticv Barbour, ( iun’crnor of the State of Mississippi. jibe ill- the :tuthoiitv vested ill nie h the (’oust ittutbtti and Laws oF th is tinder and b graill to Charles Hooker :1 lulL cotnItlete. ittttt UttCtttitht joint1 patdutu fo r State. do the crime and euttictitutt niutneul herein: and heneel’ortlu. shall be absolved ftouut all letitl coutseLluc’neca iii hitS ct -tine uttd euflvic’Iion.
I dii tLuth(unLe iuts I direct you. upon receipt Of this fixeeuitive Order, tit take nouci,’ tuil he tauvented tcctdiitdv. \\ ITN ESS W’llEREOI:. I have hereunto set my hand and eutised tile t.irt’:u Seal iii’ the Slate ofiklississippi to he :il tixd

IN


1:

-

my cut Jackson, 1)() I ut tlti, tpi ml ill ii it this the 6111 dzt .Iantiuiy. in tie icar o I our Ltd tt0 thousand and tti,lc and or tht two hundred .111d thirty-si xilt year ut the nttu.d States ol \tm.rti, I

ALE’ R.RB(.)UR tUVhkN)l BY FIlL (.)\’ERNC)R

c
Sh(kIFAky OF STA’ll

STATE OF MISSISSIPPI
SECRETARY OF STATE’S OFFICE
DELBERT HOSEMANN
SECRETARY OF STATE JACKSON, MISSISSIPPI

I, Delbert Hosemann, Secretary of State of the State of Mississippi, do hereby certify that the within and attached is a true and correct copy of

Executive Order No. 1070

OFFICIAL PARDON FOR DAVID GATLIIN

the original of which is now a matter of record in this office.

Given under my hand and Seal of Office this the 18th day of January, 2012

STATE OF MISSISSIPPI I hereby cerIiy that this tsatwe and compte copy of the. docurnenton fie in this off1c. 2011 nATrlJcr\ V

BY:

..

h(

Riptaces Our This Ceftfication Su Previous Certification Sysem.

STATE OF MISSISSIPPI
Office Qf die Governor

ltX~~, xz_nf
EXECUTIVE ORDER NO. 1070 ((1) %\HO\l IT \1AV C’ON(VI(N: \\’IIERFAS. David Gatlin, Mississippi Department ul’ Corrections No. 13343. iiictteed fil Cztuw Number 4263, Causc No. 4265 and Cause No. $542 in Rnnkiii ( ’uuniv. Mississippi on June 3 1994 to serve i i te sentence on a cltitrge of M aider, it) serve twelity (2(1) years on a charee of .Auwavited Assault and to serve ten (I 0) ve,trs on a vlizirr ol’ l3uruIary ota Dwelline: and,
VQIS

WH EREAS. David Gatlin b e came it (nitV and was it isIrte.d to the (jovernur’s Mansioti. where lie proved to he a diligent and dedicated workman: and. N()\V. I’ll EREI’()RE, I. Ilatey harbour. Governor of the Slate tit’ Mississippi. tinder unid by virtue 0! the atitlioritv vested in IIIC by the Constitution and Laws of this State. do hereby grant to David Gatlin a 11114 contt)lcte, and unconditional pardon Ibr these crimes and Cottvieiioits named herein: and lienechirib. shall he absolved from all legal consequences of these (’rifles iIILI convictions. I do :tuthoriie and direct you. upon receipt at’ this Eecuti ye (Jrdci’. to take notice and be euverned aceordiou.dv. I have IN WITNESS \VIIERE()F. herein Ito Set lily hand and causes! the (reuit Seal of the State of’ Mississippi to b atfixesh. DONE at the Capitol, in the City a I Jackson. this the out duiv January, in thc year of our Lord two thousand and twelve, and of the two hundred and thirty-sixth year (it ’ the United States ii t A nieriea.

/ flY fl lii (i()VPRNOR

/

lIALEY O/wV0UR

SIiCRETi\R\’ ()F ST AlL

STATE OF MISSISSIPPI
SECRETARY OF STATE’S OFFICE
DELBERT HOSEMANN
SECRETARY OF STATE JACKSON, MISSISSIPPI

I, Delbert Hosemann, Secretary of State of the State of Mississippi, do hereby certify that the within and attached is a true and correct copy of

Executive Order No. 1072

OFFICIAL PARDON FOR ANTHONY MCCRAY

the original of which is now a matter of record in this office.

Given under my hand and Seal of Office this the 18th day of January, 2012

or

STATE OF MISSISSIPPI I hereby certify that this is a tnw and compkiL copy of the_paj document ort file in this ofic. O\2 DATPs2tL._

1
BY:
JKLtt,w,.1J.

This Certification Stamp kp;aces Our Previous Certification System.

STATE OF MISSISSIPPI
Office of the Governor

ExE(tfIVE ORDER NO. 1072

TO \’.1I().’iI IT M.\V CONCERN: \Vil El EA S.Anthony M .Cy, \f si5i1li I )eparinleiil til ( rrectloils No. ts silenced ill (nose Number 1) - loO-KL3 in Pike County. Mississippi on K7876, a Ijib seutCHee on a cliarc oIMiirder: and. Anetict I-I. 20ii1, [(I
VII-1 i;R t:.-s, Aitthoitv ’vk(ruy became a trusty and n.as translrred to the (ivernurs M:iitsioii. where lie proved 0) he a diliteiit rind it diaLd womtsmimatm: and. NOW, THEREFORE, I, Haley Baihotti. iuveiIlor 01’111C State ol Mississippi, titider id hv virtue or the authority eted ill me by the Constitution and Laws of Otis State. do itenhy uratit to Antlinity MeCrIV a full. coinplIe. and LU1L’OiltlitiOn11 pirukin Im time et,nie ;titii Conviction natuicd herein: and hcncckirih, ht:ihh he absolved from Ili letual , li5CLftiCi1CC Of I his en lie iii Oh COiI\’ ictiOt).

I do atithorize and direct you upon receipt of this Executive Order. to take notice id be CI)VCItted ;ieeutrCtUtUiV
IN \vIl’NI:ss WHEREOF, I hae
hereunto scm itty hand nild eitl5L5l the ( rcut al ol’th Slate itl’Mississi1ipi to be al1ieil. l)Oi’J it (lb. Capitol, lii tilt, ( it ol tit,ksoti this thc oill dav .1 inn us in mlii. year of 001 ’ Lord two thousand amid twelve, and ol mite tsvo httiidred tind thinmy-siNLh year of the Uititei Slates oiAit)erica.

/ 4//
1iALE\lfARB(’)UR

p) . THE GOVERNOR

,
SlCRFFARV OF S1 A1’!

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI VS. CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; GOVERNOR PHIL BRYANT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF MISSISSIPPI; NATHAN KERN; DAVID GATLIN; CHARLES HOOKER; ANTHONY MCCRAY; JOSEPH OZMENT; KATHERINE ROBERTSON; KIRBY GLENN TATE; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULE; JOHN OR JANE DOES 1-200

PLAINTIFF CAUSE NO. 251-12-00033

JAN 232012
BARBARA DUNN, CIRCUITCLERK

DEFENDANTS

SECOND AMENDED VERIFIED COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, AND DECLARATORY RELIEF Plaintiff Jim Hood, Attorney General for the State of Mississippi,

ex rel. the State of

Mississippi (the "State") files this Second Amended Verified Complaint for Temporary Restraining Order, Preliminary and Permanent Injunctive Relief, and Declaratory Relief and states: INTRODUCTION 1. This is a civil action regarding purported pardons issued by former Governor

Haley Barbour. Some of the more than 180 pardons issued by former Governor Barbour during his last few days in office were purportedly granted to persons convicted of felony crimes

prescribed by the laws of the State of Mississippi, but were made in violation of Section 124 of the Mississippi Constitution. Section 124 proscribes the Governor’s power of pardon and provides the citizens with a constitutionally protected and enforceable right to notice before a pardon may be granted. Section 124 provides that "in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted." 2. On behalf of the State of Mississippi, the Attorney General seeks injunctive and

declaratory relief against the defendants to declare null, void, and unenforceable those pardons issued by Governor Barbour in violation of Section 124. The Attorney General also seeks further injunctive and equitable relief requiring the defendant Christopher Epps, sued in his official capacity as Commissioner of the Mississippi Department of Corrections, to obtain sufficient documented proof demonstrating compliance with Section 124 before any pardons issued by former Governor Barbour to persons currently in the custody of the Mississippi Department of Corrections are given any legal force and effect. PARTIES 3. Attorney General Jim Hood is the duly elected Attorney General for the State of

Mississippi, its chief legal officer, and is charged with managing the legal affairs of the State. As the chief legal officer of the State, he brings this lawsuit according to law and equity to protect interests of statewide and critical importance. 4. Governor Phil Bryant is the chief executive officer of the State of Mississippi and 2

former Governor Haley Barbour’s successor-in-office. Although Governor Bryant did not issue the pardons at issue, the Governor’s Office must be a party in this case so the Court may order effective declaratory and injunctive relief. Governor Bryant is not alleged to have committed any unconstitutional or improper acts with respect to the granting of the pardons. 5.

Commissioner Christopher Epps is the head of the Mississippi Department of Corrections which is charged by law with maintaining the custody of all state inmates convicted and committed to its custody. Commissioner Epps is named in his official capacity. Commissioner Epps’ business office is located in Jackson, Mississippi, the seat of state government in the First Judicial District of Hinds County, Mississippi. 6. Defendant Nathan Kern is a former inmate of Mississippi Department of

Corrections. His address is currently unknown, but he may be served with process pursuant to

Miss. R. Civ. P. 4.
7. Defendant David Gatlin is a former inmate of Mississippi Department of

Corrections. His address is currently unknown, but he may be served with process pursuant to Miss. R. Civ. P.4. 8. Defendant Charles Hooker is a former inmate of Mississippi Department of

Corrections. His address is currently unknown, but he may be served with process pursuant to Miss. R. Civ. P.4. 9. Defendant Anthony McCray is a former inmate of Mississippi Department of

Corrections. His address is currently unknown, but he may be served with process pursuant to

Miss. R. Civ. P. 4.
10. Defendant Joseph Ozment is a former inmate of Mississippi Department of 3

Corrections. His address is currently unknown, but he may be served with process pursuant to Miss. R. Civ. P. 4. 11. Defendant Katherine Robertson is currently in the custody of Mississippi Department of Corrections, confined in a penal institution, and she may be served with process pursuant to Miss. R. Civ. P. 4. 12. Defendant Kirby Glenn Tate is currently in the custody of the Mississippi Department of Corrections, confined in a penal institution, and he may be served with process pursuant to Miss. R. Civ. P. 4. 13. Defendant Aaron Brown is currently in the custody of the Mississippi Department of Corrections, confined in a penal institution, and he may be served with process pursuant to Miss. R. Civ. P.4. 14. Defendant Joshua L. Howard is currently in the custody of the Mississippi Department of Corrections, confined in a penal institution, and he may be served with process pursuant to Miss. R. Civ. P. 4. 15. Defendant Azikiwe Kambule is currently in the custody of the Mississippi Department of Corrections, confined in a penal institution, and he may be served with process pursuant to Miss. R. Civ. P. 4. 16. Defendants John and Jane Does 1-200 are presently unknown persons who are not currently in the custody of the Mississippi Department of Corrections but were purportedly granted pardons by former Governor Haley Barbour on or before January 10, 2012, for felony crimes in violation of the laws of the State of Mississippi. Included among the Does are persons who received a pardon but did not publish any notice, persons who received a pardon but

published a notice less than thirty days before the date of the pardon, and persons who received a pardon but did not publish their notice for the required thirty day duration. These defendants are currently identified as John and Jane Doe defendants because the facts related to whether former Governor Barbour issued pardons to them in compliance with Section 124 of the Mississippi Constitution are not yet filly developed. The Attorney General reserves the right to amend this complaint to include specific individuals in place of John and Jane Does 1-200 consistent with the Mississippi Rules of Civil Procedure. JURISDICTION, VENUE AND JOINDER 17. 18. This Court has jurisdiction over the subject matter and parties herein. Venue is proper in the First Judicial District of Hinds County in that some or all

the defendants maintain their business offices or residences in the First Judicial District of Hinds County, Mississippi, and/or it is the location where some or all of the acts or omissions occurred, or where a substantial event that caused the injuries at issue occurred. 19. The defendants have been properly joined in this action because the right to relief

requested is asserted against them jointly, severally, or in the alternative, arises out of the same transaction, occurrence, or series of transactions or occurrences, and there is at least one common question of law or fact among the defendants. FACTS 20. Governor Phil Bryant was elected as Governor during the general statewide

election on November 8, 2011. Governor Bryant took the oath of office, consistent with Mississippi law, on January 10, 2012. 21. Former Governor Haley Barbour was Governor Bryant’s predecessor-in-office. 5

During Governor Barbour’s last few days of tenure in office, he issued pardons and reprieves, and granted clemency and/or conditional suspensions of sentences to certain individuals convicted of felonies under the laws of the State of Mississippi. A list of the Executive Orders, dates issued, and names of the individuals to whom Governor Barbour granted pardons and reprieves, and granted clemency and/or conditional suspensions of sentences during his tenure is affixed hereto as Exhibit "A." 22. As indicated by Exhibit "A," on or before January 10, 2012, the date which

Governor Bryant replaced him, former Governor Haley Barbour issued executive orders granting pardons and reprieves, granted clemency, and/or conditional suspensions of sentences to more than 200 individuals previously convicted of crimes against the State of Mississippi. 23. Defendant Nathan Kern was convicted of the felony of robbery in Coahoma

County, Mississippi in or about 1982. Defendant Kern was serving his sentence in the custody of the Mississippi Department of Corrections prior to January 6, 2012. On or about January 6, 2012, former Governor Barbour issued Executive Order No. 1069 purportedly granting defendant Kern a full, complete, and unconditional pardon for his crime. See the true and correct copy of

Executive Order No. 1069 affixed hereto as Collective Exhibit "B." 24. Defendant Kern did not have an application for the purported pardon published

for thirty days prior to January 6, 2012, in some newspaper in the county where his crime was committed, setting forth therein the reasons why his pardon should be granted. 25. Defendant Kern’s application for his purported pardon was first published in the

Clarksdale Press Register in Coahoma County, Mississippi on December 14, 2011. 26. Defendant David Gatlin was convicted of the felonies of murder, aggravated

.1

assault, and burglary in Rankin County, Mississippi in or about 1994. Defendant Gatlin was serving his sentence in the custody of the Mississippi Department of Corrections prior to January 6, 2012. On or about January 6, 2012, former Governor Barbour issued Executive Order No. 1070 purportedly granting defendant Gatlin a full, complete, and unconditional pardon for his crimes. See the true and correct copy of Executive Order No. 1070 affixed hereto as Collective Exhibit "B." 27. Defendant Gatlin did not have an application for the purported pardon published

for thirty days prior to January 6, 2012, in some newspaper in the county where his crimes were committed, setting forth therein the reasons why his pardon should be granted. 28. Defendant Gatlin’s application for his purported pardon was first published in the

The Rankin Record in Rankin County, Mississippi on December 15, 2011.
29. Defendant Charles Hooker was convicted of the felony of murder in Coahoma

County, Mississippi in or about 1992. Defendant Hooker was serving his sentence in the custody of the Mississippi Department of Corrections prior to January 6, 2012. On or about January 6, 2012, former Governor Barbour issued Executive Order No. 1071 purportedly granting defendant Hooker a full, complete, and unconditional pardon for his crime. Executive Order No. 1071 affixed hereto as Collective Exhibit "B." 30. Defendant Hooker did not have an application for the purported pardon published

See the true and correct copy of

for thirty days prior to January 6, 2012, in some newspaper in the county where his crime was committed, setting forth therein the reasons why his pardon should be granted. 31. Defendant Hooker’s application for his purported pardon was first published in

the Clarksdale Press Register in Coahoma County, Mississippi on December 14, 2011. 7

.3

32.

Defendant Anthony McCray was convicted of the felony of murder in Pike

County, Mississippi in or about 2001. Defendant McCray was serving his sentence in the custody of the Mississippi Department of Corrections prior to January 6, 2012. On or about January 6, 2012, former Governor Barbour issued Executive Order No. 1072 purportedly granting defendant MeCray a full, complete, and unconditional pardon for his crime. and correct copy of Executive Order No. 1072 affixed hereto as Collective Exhibit "B." 33. Defendant McCray did not have an application for the purported pardon published

See the true

for thirty days prior to January 6, 2012, in some newspaper in the county where his crime was committed, setting forth therein the reasons why his pardon should be granted. 34. Defendant McCray’s application for his purported pardon was not published in

any newspaper prior to January 6, 2012. Upon information and belief, defendant McCray’s application for his purported pardon is scheduled to be published in Pike County, Mississippi after January 6, 2012. 35. Defendant Joseph Ozment was convicted of the felony of murder, conspiracy, and

The Enterprise-Journal in

armed robbery in DeSoto County, Mississippi in or about 1993. Defendant Ozment was serving his sentence in the custody of the Mississippi Department of Corrections prior to January 6, 2012. On or about January 6, 2012, former Governor Barbour issued Executive Order No. 1073 purportedly granting defendant Ozment a full, complete, and unconditional pardon for his crime.

See the true and correct copy of Executive Order No. 1073 affixed hereto as Collective Exhibit

am
36. Defendant Ozment did not have an application for the purported pardon published for thirty days prior to January 6, 2012, in some newspaper in the county where his crime was

A

committed, setting forth therein the reasons why his pardon should be granted. 37. Defendant Ozment’s application for his purported pardon was first published in the

The DeSoto Times-Tribune in DeSoto County, Mississippi on December 13, 2011.
38. Defendant Katherine Robertson was convicted of the felony of aggravated assault

in Madison County, Mississippi in 2007. Defendant Robertson is currently serving her sentence in the custody of the Mississippi Department of Corrections. On or about January 10, 2012, former Governor Barbour issued Executive Order No. 1193 purportedly granting defendant Robertson a full, complete, and unconditional pardon for her crime.

See the true and correct

copy of Executive Order No. 1193 affixed hereto as Collective Exhibit "B." 39. Defendant Robertson did not have an application for the purported pardon

published for thirty days prior to January 10, 2012, in some newspaper in the county where her crime was committed, setting forth therein the reasons why her pardon should be granted. 40. Defendant Robertson’s application for her purported pardon was first published in

The Clarion-Ledger in Hinds County, Mississippi on January 8, 2012.
41. Defendant Kirby Glenn Tate was convicted of the felonies of two counts of

possession of marijuana with intent to distribute, possession of oxycodone, and delivery of marijuana in Lauderdale County, Mississippi in 2003 and 2004. Defendant Tate is currently serving his sentence in the custody of the Mississippi Department of Corrections. On or about January 10, 2012, former Governor Barbour issued Executive Order No. 1221 purportedly granting defendant Tate a full, complete, and unconditional pardon for his crimes.

See the true

and correct copy of Executive Order No. 1221 affixed hereto as Collective Exhibit "B." 42. Defendant Tate did not have an application for the purported pardon published for

thirty days prior to January 10, 2012, in some newspaper in the county where his crimes were committed, or in an adjoining county, setting forth therein the reasons why his pardon should be granted. 43. Defendant Tate’s application for his purported pardon was first published in the

Meridian Star in Lauderdale County, Mississippi on December 14, 2011. 44. Defendant Azikiwe Kambule was convicted of the felonies of armed carjacking

and accessory after the fact to murder in Madison County, Mississippi in 1997. Defendant Kambule is currently serving his sentence in the custody of the Mississippi Department of Corrections. On or about January 10, 2012, former Governor Barbour issued Executive Order No. 1281 purportedly granting defendant Tate a full, complete, and unconditional pardon for his crimes. See the true and correct copy of Executive Order No. 1281 affixed hereto as Collective Exhibit "B." 45. Defendant Kambule did not have an application for the purported pardon

published for thirty days prior to January 10, 2012, in some newspaper in the county where his crimes were committed, or in an adjoining county, setting forth therein the reasons why his pardon should be granted. 46. Defendant Kambule’s application for his purported pardon was published in the

Madison County Herald in Madison County, Mississippi on November 3, 2011; November 10,
2011; November 17, 2011; and November 24, 2011, which is less than thirty days. 47. Defendant Joshua L. Howard was convicted of the felony of statutory rape in

Hinds County, Mississippi in 2009. Defendant Howard is currently serving his sentence in the custody of the Mississippi Department of Corrections. On or about January 10, 2012, former 10

Governor Barbour issued Executive Order No. 1149 purportedly granting defendant Howard a full, complete, and unconditional pardon for his crimes. See the true and correct copy of Executive Order No. 1149 affixed hereto as Collective Exhibit "B." 48. Defendant Howard did not have an application for the purported pardon published

for thirty days prior to January 10, 2012, in some newspaper in the county where his crimes were committed, or in an adjoining county, setting forth therein the reasons why his pardon should be granted. 49. Defendant Howard’s application for his purported pardon was first published in

The Clarion Ledger in Hinds County, Mississippi on November 29, 2011; December 6, 2011;
December 13, 2011; and December 20, 2011, which is less than thirty days. 50. Defendant Aaron Brown was convicted of the felonies of murder in Hinds

County, Mississippi in 1997 and possession of a concealed weapon and possession of controlled substances in Hinds County, Mississippi in 1990. Defendant Brown is currently serving his sentence in the custody of the Mississippi Department of Corrections. On or about January 10, 2012, former Governor Barbour issued Executive Order No. 1274 purportedly granting defendant Brown a fill, complete, and unconditional pardon for his crimes. See the true and correct copy of Executive Order No. 1274 affixed hereto as Collective Exhibit "B." 51. Defendant Brown did not have an application for the purported pardon published

for thirty days prior to January 10, 2012, in some newspaper in the county where his crimes were committed, or in an adjoining county, setting forth therein the reasons why his pardon should be granted. 52. Defendant Brown’s application for his purported pardon was first published in 11

The Clarion Ledger in Hinds County, Mississippi on September 9, 2011; October 6,2011; October 13, 2011; and October 20, 2011, which is less than thirty days. 53. Each of the purported pardons described above was issued by former Governor

Barbour at the Capitol in Hinds County, Mississippi. See true and correct copies of Executive Orders affixed hereto as Collective Exhibit "B." COUNT ONE DECLARATORY JUDGMENT BASED ON VIOLATION OF THE MISSISSIPPI CONSTITUTION 54. 55. The Attorney General incorporates the previous paragraphs by reference herein. Section 124 of the Mississippi Constitution states:

In all criminal and penal cases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the Legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the Legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted. 56. Pursuant to the express provisions of Section 124, no person convicted of a felony

may be pardoned by the Governor unless, as a condition precedent, the applicant’s petition for pardon is published by newspaper for thirty days prior to issuance of the pardon in the county specified therein. 57. Defendants Kern, Gatlin, Hooker, McCray and Ozment were convicted of felonies under the laws of the State of Mississippi and failed to comply with the publication requirement

12

of Section 124 prior to former Govern Barbour’ s issuance of Executive Orders 1069, 1070, 1071, 1072 and 1073 on January 6, 2012. 58. Defendants Brown, Howard, Kambule, Robertson and Tate were convicted of

felonies under the laws of the State of Mississippi and failed to comply with the publication requirement of Section 124 prior to former Governor Barbour’s issuance of Executive Orders 1274, 1281, 1149, 1193 and 1221 on January 10, 2012. 59. All of the aforementioned Executive Orders and any others issued by former

Governor Barbour to persons convicted of felonies who have failed to comply with the express publication requirement of Section 124 are invalid as in violation of the Mississippi Constitution. 60. The Court should thus enter a declaratory judgment pursuant to Miss. R. Civ. P.

57 declaring that Executive Orders 1069, 1070, 1071, 1072, 1073, 1274, 1281, 1149, 1193, and 1221 are void ab initlo and have no legal force or effect, COUNT TWO INJUNCTIVE RELIEF BASED ON VIOLATION OF THE MISSISSIPPI CONSTITUTION 61. 62. The Attorney General incorporates the previous paragraphs by reference herein. Temporary, preliminary, and permanent injunctive relief against the defendants

pursuant to Miss. R. Civ. P. 65 and based on Section 124 of the Mississippi Constitution is appropriate because the Attorney General can demonstrate success on the merits, there is a significant threat of irreparable injury, the threat of irreparable injury outweighs any possible threat to defendants, and injunctive relief is in the public interest. 63. The Court should grant injunctive relief specifically including, but not limited to,

forever enjoining defendants from utilizing or benefitting from any of former Governor 13

Barbour’s Executive Orders declared null and void in violation of Section 124 of the Mississippi Constitution. 64. Defendant Mississippi Department of Corrections should be required to ascertain

the validity of any and all individuals’ compliance with Section 124 who have been issued a purported pardon by former Governor Barbour, and present sufficient documented proof of compliance to the Attorney General and the Court before any of the pardons issued by former Governor Barbour on or after January 6, 2012 can be given any legal effect. 65. Expedited temporary, preliminary, and/or permanent injunctive relief is

appropriate as any past act of the defendants giving legal effect to any pardons not issued in compliance with Section 124 has created a risk that non-compliant individuals have been improperly released from custody which constitutes exigent circumstances. 66. Further, such expedited relief is appropriate as any future act of the defendants

giving legal effect to any purported pardons not issued in compliance with Section 124 would create a risk that non-compliant individuals would be improperly released from custody which constitutes exigent circumstances. FOR THE REASONS SET FORTH ABOVE, plaintiff Jim Hood, Attorney General for the State of Mississippi, ex rel. the State of Mississippi respectfully requests that the Court grant the following relief: A. A declaratory judgment pursuant to Miss. R. Civ. P. 57 providing that Executive

Orders 1069, 1070, 1071, 1072, 1073, 1192, 1274, 1281, 1149, and 1221 issued by former Governor Barbour in violation of Section 124 are a nullity, void, and unenforceable; B. A temporary, preliminary, and/or permanent injunction pursuant to Miss. R. Civ. 14

P. 65 requiring the defendant Mississippi Department of Corrections to obtain and provide plaintiff and the Court documented and sufficient proof consistent with Section 124 of the Mississippi Constitution from any and all persons convicted of a felony, and to whom a pardon was issued by former Governor Barbour, C. A temporary, preliminary, and/or permanent injunction pursuant to Miss. R. Civ.

P. 65 requiring the Mississippi Department of Corrections be prohibited from releasing from custody defendants Brown, Kambule, Howard, Robertson, and Tate unless and until the Court determines, based upon documented and sufficient proof, that their pardons were issued in compliance with all of the requirements of Section 124; D. An order requiring defendants Kern, Gatlin, Hooker, McCray, and Ozment to

appear before this Court at any hearing pertaining to a temporary restraining order, preliminary injunction, and/or hearing on the merits at a date certain. E. A temporary restraining order and preliminary injunction requiring defendants

Kern, Gatlin, Hooker, McCray, and Ozmet to contact the Mississippi Department of Correction’s Jackson office (or other office designated by the Department and approved by the Attorney General) every 24 hours to provide accurate information on their exact locations and any plans to travel beyond their home county until such time as the Court may award permanent injunctive relief on the merits; and F. All other and further extraordinary equitable, declaratory, and/or injunctive relief

as permitted by law as necessary to assure that plaintiff has an effective remedy; and G. For such other and further relief, as the Court deems just and proper, to which

plaintiff may be entitled. 15

Respectfully submitted, this the 23d day of January, 2012. BY: JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI

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ORNEY GENERAL BRIDGETFE WIGGiNS, MSB No. 9676 ALEXANDER KASSOFF, MSB No. 103581 SPECIAL ASSISTANT ATTORNEYS GENERAL Office of the Attorney General Post Office Box 220 Jackson, Mississippi 39205 Telephone: (601) 359-3680 Facsimile: (601) 359-2003

16

Verification Personally appeared before me, Special Assistant Attorney General Bridgette Wiggins, an adult resident citizen of the State of Mississippi, and hereby makes this affidavit, stating as follows: I hereby certify that the information contained in this complaint filed on January 18, 2012, and to which this affidavit is fixed, is true and correct to the best of my knowledge information and belief. DATED this the 23d day of January, 2012.

Sworn to and subscribed before me, this the 23d day of January, 2012.

My Comnussio’.X
DIANA WARE . .CommissIon Expires/ .. July 29,2013 .

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Notary Public

17

Certificate of Service This is to certify that I, Bridgette Wiggins, Special Assistant Attorney General for the State of Mississippi, have caused to be served the foregoing Second Amended Verified Complaint to the following individuals and in the manner specified below: Honorable Tomie T. Green Circuit Court Judge First Judicial District of Hinds County, Mississippi Hinds county Courthouse Jackson, MS 39201 Governor Phil Bryant Office of the Governor of Mississippi P.O. Box 139 Jackson, MS 39205 Thomas M. Fortner Attorney at Law Erik M. Lowrey, P.A. 525 Corinne Street Hattiesburg, MS 39401 Richard A. Filce Attorney at Law Erik M. Lowrey, P.A. 525 Corinne Street Hattiesburg, MS 39401 Alison Oliver Kelly Attorney at Law Alison Oliver Kelly, PLLC P.O. Box 1644 Jackson, MS 39215 Christopher Epps, Commissioner Mississippi Department of Corrections 723 North President Street Jackson, MS 39201 and via electronic mail to dscott@mdoc.state.ms.us

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Joseph Ozment At this time, the State of Mississippi has been unable to locate and serve Joseph Ozment with a complaint and summons. The State will endeavor to serve Ozment as required by Rule 4.

Katherine Robertson will be served via hand delivery at the January 23, 2012 hearing Kirby Glenn Tate will be served via hand delivery at the January 23, 2012 bearing Aaron Brown will be served via hand delivery at the January 23, 2012 hearing Joshua L. Howard will be served via hand delivery at the January 23, 2012 hearing Azikiwe Kabule will be served via hand delivery at the January 23, 2012 hearing DATED this the 23d day of January, 2012.

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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI

ank

CLE1 JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI VS. CIVIL ACTION NO. 251-12-00033 dY

CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVID GATLIN, CHARLES HOOKER, ANTHONY MCCRAY, AND JOSEPH OZMIET, AND DOES 1-200

DEFENDANTS

ORDER OF RE-ASSIGNMENT THIS CAUSE came on to be heard on the motion of the Plaintiff for a Temporary Restraining Order and Injunctive Relief. The Court, having first
discussed same with the original

assigned judge, Judge Jeff Weill who was trying a criminal trial in the 2 d Judicial District of

Hinds County, finds the motion is well taken and should be granted. IT IS HEREBY ORDERED AND ADJUDGED, that the above styled and numbered
cause is hereby reassigned to Judge Tomie T. Green.

SO ORDERED this the

day of

.

1

2012.

TOMTE T. GREEN, SENIOR JUDGE HINDS COUNTY CIRCUIT COURT

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1 2 3 4 JIM HOOD ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. 5 THE STATE OF MISSISSIPPI PLAINTIFF, 6 7 VS. CIVIL ACTION NO: 251-12-00033 CIV 8 9 CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER 10 OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVID GATLIN, 11 CHARLES HOOKER ANTHONY MCCRAY, AND JOSEPH OZMET, AND DOES 1-200 DEFENDANTS. 12 13 14 * * * * * * * * * * * * * * * * 15 16 17 18 19 20
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Emergency Hearing, 1-11-12 IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI

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HEARING HELD BEFORE THE HONORABLE TOMIE T. GREEN IN THE ABOVE-STYLED CASE ON WEDNESDAY, HINDS COUNTY AT THE JANUARY 11, 2012 COURTHOUSE, JACKSO, MISSISSIPPI.

* * * * * * * * * * * * * * * *
APPEARANCES:
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Representing State of Mississippi SPECIAL ASSISTANT ATTORNEY GENERAL DAVID SCOTT, Representing Department of Corrections Assistant Attorny General Bridgette Wiggns Deputy Attorney General (Jnetta Whitley ESTELLA WREN, CSR #1141 Official Court Reporter estellawren@bellsouth.net

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ALSO PRESENT:

REPORTED BY:

COMPUTER-AIDED TRANSCRIPTION BY

Emergency Hearing, 1-11-12 1 ’2 3 Style, Number & Appearances Index
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TABLE OF CONTENTS 1 2 3 6

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Exhibits

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Special Hearing

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Certificate

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COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 2 3 4 5

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EXHIBITS

PAGE

1, Document, Copyies of Newspaper ........ 14 2, Letter, Southern Sentinel ............. 3, Document, Suzanne Singletary .......... 4, Pardons ............................... 16 17 18

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COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12

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THE COURT: Hinds County.

For the record, this is It is an emergency matter

cause 12-33 before the Circuit Court of styled Jim Hood, Attorney General for the State of Mississippi versus Chris Epps in his capacity as Commissioner of the Mississippi Department of Corrections, et a] The proceeding is deemed by the top law enforcement entity for the state to be of an emergency nature needing this court’s immediate attention. As senior judge and in the absence of the assigned judge, I’m ready now to proceed with the hearing. Attorney General Hood, I’ve not had an opportunity to review all of the case law, but the court will make a determination of whether an injunction is appropriate and thereafter set a preliminary hearing if it deems so. may proceed at this time. And counsel, if you would, identify the persons before the court for the record, ATTORNEY GENERAL HOOD: Yes, ma’am. I have with me Bridgette Wiggns, an assistant attorney general. Onetta Whitley is the deputy attorney general. COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net You

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And David Scott is a special assistant attorney general assigned to the Department of Corrections. And so he’s representing the Department of Corrections. THE COURT: And have you had an opportunity to review the petition? MR. SCOTT: I’ve briefly reviewed it. THE COURT: And in terms you agree that this is an emergency matter needed to be addressed by the court? MR. SCOTT: General Hood. ATTORNEY GENERAL HOOD: Your Honor, for the record I’m sure that the court is aware of what has occurred. THE COURT: Yes, sir. ATTORNEY GENERAL HOOD: Governor Barbour issued some 216, I believe, pardons in his last hours of services as governor. Section 124 of the Mississippi Constitution provides that before a pardon may be granted that the convict, the applicant for the pardon, has to publish in the local paper for a 30-day period. What we have found is numerous situations where there was no publication at all. We found situations where there
COMPUTER-AIDED TRANSCRIPTION BY

Yes, ma’am.

THE COURT: Okay. You may proceed,

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estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
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was some publications but not a full 30 days. And so we’re having to go back through all of these to see if these pardons are actually valid. It’s our position that Section 124 expressly provides that the pardon can’t be granted until this publication has been done. we take the position that it was the Governors duty before he signed those pardons to determine that the publications were done. We were prevented all day long by counsel for former Governor Barbour from getting access to his files. I finally called Governor Bryant over an hour ago, and he ordered them to provide us with the files, so we’ve just now gotten them. Many of them had nothing in them about any kind of publication. of them did. So the position of the state is
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Epps.

David Scott is assigned -- he’s

assistant attorney general, but he’s in here in his independent authority in representing the Department of Corrections. But Commissioner Epps does not want to release prisoners that would be released on an invalid pardon and then we have to go back and try to track them
COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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Emergency Hearing, 1-11-12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
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down. THE COURT: Counsel, have you notified the current governor of your intent to come before the court for the information? ATTORNEY GENERAL HOOD: Yes, ma’am. I notified Governor Bryant that I would have to name him in the suit if he didn’t order the attorneys for former Governor Barbour to provide us with those records because we would have to have an order to get them, so he’s well aware. So we took his name off of the complaint; however, in the complaint we are requesting that the court issue an order that we get all the records because, apparently, we hadn’t gotten all the records that Governor Barbour had in his possession regarding these pardons, because we just want to see if there is some evidence in the state’s
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we’ve checked with a lot of newspapers, we have statements, we have affidavits, our investigators, consumer protection, public integrity -- they’re calling all these local newspapers to see if these publications have been met. We found that some hadn’t published anything, some have been up there in the last couple of weeks.
COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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It’s our position they even though they may have published -- started publishing one case, for example, was December 15th began the publication. That is the murder from out in Rankin County. THE COURT: Do you have a list of those that you’re -ATTORNEY GENERAL HOOD: Yes, ma’am. Those are the named defendants. This David Gatlin is who I’m talking about with the murder from Rankin County. THE COURT: only one. ATTORNEY GENERAL HOOD: No, ma’am. There are four that have been convicted of murder. THE COURT: And there was a total number? ATTORNEY GENERAL HOOD: One that was convicted of robbery.
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out to the Rankin Record, for example, and we found that inmate David Gatlin, who is one of these named parties who was convicted of murder and aggravated assault, his run from December 15th to January 5th, which by my calculations even giving him the first day and the last day, I believe it was 21 days -- would not meet COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12
1 2 3 4 5 6 7 8 9 10 11 12 13
14 15 the 30-day requirement. THE COURT: Okay. ATTORNEY GENERAL HOOD: Moreover the pardon was. granted On January 6th on all five of these individuals, and they were released Sunday. So we’re asking that -and I’ll go through the rest of this list in a second, but first we’re asking that the Department of Corrections have an order to protect them to cease handling the pardons of those who are incarcerated until we can sort out whether publication was done. Secondly, for these individuals we’re asking the court as part of it’s injunctive powers to order that they immediately report to the Department of Corrections and that they -THE COURT: That is the named defendants, Kern, Gatlin, Hooker, McCray
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ATTORNEY GENERAL HOOD: Yes, ma’am. THE COURT: Okay. ATTORNEY GENERAL HOOD: We looked, for example, on inmate Charles Hooker. His petition for pardon notice was placed in the Clarksdale Press Register, which is a twice weekly paper. It was scheduled to run December 14th through January 4th of

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COMPUTER-AIDED TRANSCRIPTION BY
estellawren@bellsouth.net

Emergency Hearing, 1-11-12

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this year, which, there again, we believe does not comply with the requirements of the Constitution that it run for 30 days. There is an inmate, Nathan Kern. He petitioned for pardon, notice was placed in the Clarksdale’s Press Register as well to run December 14 through January 4th. And then lastly -- well, there are two more actually. M-c-C-r-a-y. Inmate Anthony, McCray, His petition for pardon

notice was placed in the Enterprise Journal scheduled to run December 12th through January 10th. And, lastly, is inmate Joseph Ozmet, 0-z-m-e-t. The petition for pardon notice was placed in the DeSoto Times Tribune, and it was scheduled to run December 13th through January ’5th. So it’s our position that these individuals that we have named in this complaint should be served and
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Department of Corrections, and we ask that the court set a hearing as early as possible to have them come in and show cause or put on any proof that they’ve had of publication. Your Honor, in all fairness to these individuals, it could be that some may have partitioned Governor Finch, for COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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Emergency Hearing, 1-11-12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
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example, if they’re murderers, they’ve been in a long time. of this has occurred, but they could come in and show something, but we believe our proof is sufficient to this point to get a preliminary injunction. For example, they may have published back then and they may be able to come in and show. THE COURT: Have all these persons been released already to your knowledge? ATTORNEY GENERAL HOOD: Yes, ma’am. They were released last Sunday. And what scares me and what is such a danger right -. THE COURT: And what was the date of last Sunday? Was that the 8th? MR. SCOTT: The 8th I think it was. ATTORNEY GENERAL HOOD: January 8th. And they were released, Sunday -- is that right, David?
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THE COURT: Now they were released Sunday. Is that the date of the pardon? ATTORNEY GENERAL HOOD: The pardon was January 6th. THE COURT: Okay. ATTORNEY GENERAL HOOD: But they may be able to come in and show some publication, but what our research has
COMPUTER-AIDED TRANSCRIPTION BY

estellawren@bellsouth.net

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shown to this point, I mean, it just hit us last night. What I’m afraid of if we don’t put some requirements on them to report, they’re going to flee, or worse yet, say if I’m going back to finish a life sentence, I’m going to kill somebody else. And that’s why we think this is worthy of some emergency powers of the court to enjoin and require them to come before the court and to immediately report to the Department of Corrections. Our officers would go out and serve them if we can locate them. Because when they leave MDOC on a pardon, there are no strings. mean, we’re going to have to go through the records to find family and try to go serve them tonight or tomorrow if you issue this order. So we want to just get those two things done. And I think by the time you -- if you
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able to have completed -- I’ve engaged all the district attorneys in the state, local law enforcement, sheriffs, to go to these local papers and lets see if they’ve ever published at any time from the crime forward. THE COURT: So you’re not arguing that the governor has the authority. Your COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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argument is that they are condition precedent to him exercising that authority. And from what I’m looking at under Section 124 under Article 5, it says it shall be published for 30 days in some newspapers in the county, and where there is no county newspaper, in an adjoining county. And that publication has to say why the applicant believes he’s entitled to the pardon. ATTORNEY GENERAL HOOD: Yes, ma’am. What we’re saying is that he can’t even Because it says no pardon -issue it. -- shall issue. THE COURT: Shall issue. ATTORNEY GENERAL HOOD: THE COURT: Correct. ATTORNEY GENERAL HOOD: In other words, he has got to be assured that the publication has occurred. THE COURT: So you don’t have the
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you. ATTORNEY GENERAL HOOD: Well, we just got it a little bit ago, but what we have already found in those files is a lot of them don’t have any information about any publication. The governor just signed them without regard. THE COURT: Okay. Do you have that
COMPUTER-AIDED TRANSCRIPTION BY

estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
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that I can look at it? ATTORNEY GENERAL HOOD: I have some exhibits that I’d like to introduce that shows some of the publications that we have done. THE COURT: Okay. ATTORNEY GENERAL HOOD: As far as the governor’s files, we have not completed that. We went around because they wouldn’t give them to us. THE COURT: Why don’t you at this time ask Ms. Wren to mark those documents as exhibits to your petition, and then you can relate to the court by document what you have before us. ATTORNEY GENERAL HOOD: Your Honor, at this time we would submit for identification purposes a -- I suppose we can just move to introduce them, though, since we’re not dealing with a jury.
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THE COURT: You can. You can move to have them admitted as exhibits to your petition. ATTORNEY GENERAL HOOD: This is a five-page document that contains copies of the newspapers that we would move to introduce and the cover letter from the Mississippi Department of Corrections. COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 29 THE COURT: If you’ll do that one as

15

State’s Exhibit 1.

(STATE’S EXHIBIT NO. 1 MARKED AND ADMITTED)
ATTORNEY GENERAL HOOD: The second document that I would move to introduce is a two-page exhibit. It is a letter from It comes out of the office manager and the general manager of the Southern Sentinel. Ripley, but that’s the Benton County Newspaper in which it mentions two of those on this list. It’s not any of these five that we’ve named, but it’s just an example of, you know -- there are two on the list, one of them is Clinton Moffitt. That’s one of those from Benton County that we convicted of voter fraud, our office did recently. In this letter she states that he did publish, but it didn’t start until
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supposed to be published -- January 5; January 19th to January 26th. Obviously, that does not meet the 30-day period prior to the issuance of the pardon. This letter also contains a statement regarding another person who was pardoned, Steven Thompson. And this letter states there is no -- Mr. Thompson has not
COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 2 3
published anything. So that’s just an example of what we found in going through

16

these 200 something pardons that some have run out and tried to publish, and it hadn’t met the 30-day deadline. And then there are others, some hadn’t published at all. And I think that’s the pattern that So I would move we’re going to find throughout this from what we’ve already seen. Exhibit 2. THE COURT: Exhibit No. 2. (STATE’S EXHIBIT NO. 2 MARKED AND ADMITTED) THE COURT: In terms of the persons who are named besides Mr. Epps, did you check to see whether the persons that did publish were within the counties where the
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Has that been verified as well? ATTORNEY GENERAL HOOD: Yes, ma’am. The first one that we introduced on the first page right here, it lists when we went to the county in Rankin, the Rankin Record -- did she give you a copy of that first one? THE COURT: Yes. That’s your State’s

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COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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Exhibit 1. ATTORNEY GENERAL HOOD: Okay. And State’s Exhibit 1, that first paragraph as posed, it states on each one of these named defendants like David Gatlin, it says that, you know, we went to the Rankin Record and that he did run the publication but it only ran from December 15th through January 5th. And it’s our position that he should have to come in and show cause as to how that actually met the 30-day requirement. And the rest of them are listed right under that as to what, you know, we went to those particular counties and checked on those five who were just released December 6, four of whom were murderers and one habitual arm robbery. So those are the ones that we think is a danger to the public. I want to move to introduce this
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Honor, that we would move to introduce as States Exhibit 3, and it contains this that I’ve just stated to the court the fact that we have checked with this publication. This information actually Okay. This is the came from the Department of Corrections. THE COURT: document that has Suzanne Singletary’s COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 2 3 4 name at the top and a note saying to General Hood from David Scott? ATTORNEY GENERAL HOOD: Yes, ma’am. THE COURT: Okay.

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(EXHIBIT NO. 3 MARKED AND ADMITTED)
ATTORNEY GENERAL HOOD: Your Honor, we have a fourth exhibit that I would move to introduce, and it is a printout that we have received from the Clarion Ledger of Hinds County convictions, and the Clarion Ledger has given us this showing the dates of publication. As you see, the first So they’re just now one, Kenneth Carver Pardon notice ran from 1-12 to 2-2 of 2012. trying to run them. THE COURT: After the pardon? ATTORNEY GENERAL HOOD: Yes, ma’am. And that’s the problem. They should have had it done before or it’s invalid. these are just examples of what we’re
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we come back to court we’re going to be moving to set aside or ask the court to hold null and void all these pardons because they have not met the Constitutional requirements. I move to introduce this list as Exhibit 4. THE COURT: And this is Clarion Ledger data? COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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Emergency Hearing, 1-11-12 1 2 3 ATTORNEY GENERAL HOOD: Yes, ma’am.

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(EXHIBIT NO. 4 MARKED AND ADMITTED)
ATTORNEY GENERAL HOOD: Your Honor, that last exhibit is just an example of what we’ve already found in our checks of these people. The governor did not obtain these documents of publication and he had a duty to before he granted them. But let’s assume that he did it anyway and that they published at some other time. We have gone back in our spot checks in this whole list we have right there, I think it’s clear evidence that none of these people had published, very few are going to actually meet that requirement. So what we’re asking is that the court order MDOC not to turn any more out until we’re able to determine those that are already incarcerated or still incarcerated. And we have been advised
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more.

Do we actually know -- that’s what

the governor’s office allegedly told us. We don’t know how many are incarcerated are actually on this list. trying to sift through it. introduce that list. THE COURT: I have that. It’s MDOC is still This list that

the governor sent out, I suppose I should

COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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attached -- as Exhibit A? ATTORNEY GENERAL HOOD: Okay. That list is what was delivered to MDOC, so they got to go through and figure out what the convict’s number is, what their county of conviction is so that they can se.nd out notices to the sheriff. quite a bit. David can speak more as to what their duties are, but it’s I think it’s at least going to take two days to process that. But if you’ll look on that list that’s attached to it, about ten down you start seeing those five that were named. You see the January 6th. THE COURT: I do. ATTORNEY GENERAL HOOD: That’s the five that we’re looking at that were just released. And we’re trying to, number one, prevent them from releasing any more; number two, let’s bring these in and see
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actually met the publication requirement. And then as to these others, we’re going to have to try to notice them. I’d like to take the position that, you know, they got a duty to come forward. But in all fairness I think they have a valid pardon until we prove otherwise. And so I guess what’s going to have to COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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happen is our office is going to have to run all these publications and put on and try to prove a negative, you know, that nothing has occurred. THE COURT: Okay. But we’re going to From what I scramble and do that as soon as possible. gather, and I guess maybe I should be talking with the attorney for MDOC, is there some record or documentation that’s kept in the regular order or course of business for the governor’s office as public record that should be available to the attorney general to your knowledge? MR. SCOTT: Your Honor, to the knowledge of the Department of Corrections they don’t know what records are kept by the governor’s office. THE COURT: When were you notified that the publications had been met so as to release anyone? MP c rnTT. lAj
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entire list, the Department has never been notified that there’s been notifications published. With respect to the five inmates that were released on the 8th, the Department was notified in early December, I want to say sometime December 8th or 9th that they had intended to pardon these individuals, and there was discussion
COMPUTER-AIDED TRANSCRIPTION BY

estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 between the Department and the governor’s

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office about the publication at that time, and the Department was instructed to go ahead and publish notification on the individuals who were still in custody. THE COURT: How many of them were still in custody at that time if you recall? MR. SCOTT: The five that were released on Sunday. THE COURT: Okay. MR. SCOTT: There were a number of other individuals that -- I think about four other individuals that they were notified, and I think that’s on one of your exhibits where Suzanne Singletary’s name is at the top. There are four names toward the bottom of that that were not in custody at that time. Those individuals were contacted by the Department and told that they had an obligation to provide publication at that time. THE COURT: So they were notified by the Department that they needed to publish themselves. MR. SCOTT: That’s correct. I’m like the THE COURT: As the applicants. Where does that copy back to? General, I hadn’t been in court to figure COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net
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out or find how publications work except I know that when it’s required the newspaper usually sends a clipping back and it’s put in a file somewhere in the court. How does that work when it is a defendant who either has served time or has not completed their time? MR. SCOTT: With respect to the five inmates that the Department sent notice to the newspapers, the newspapers will send an invoice to the Department to pay for it, and that’s put into the file. Not necessarily the inmate’s file, but it’s kept in a file at the Department to show that the publication had in fact ran. THE COURT: aware of? MR. SCOTT: Your Honor, it does not. In fact, I can say Well, let me look. Does it have the little clipping, they used to tape that you’re

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that the Department has not received an invoice from all five of those. They have received an invoice for three of the five. And just looking through it -THE COURT: Then how does the Department know whether to release? MR. SCOTT: Oh, I’m sorry. It does. Well, the Department, Your Honor, the Department is following the orders that COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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they receive from the Governor when they receive a pardon, you know. THE COURT: Can you show it to me? I’m just -- I’ve never had one come to me. What does the Governor say to the Commissioner that authorizes the commissioner or does he just accept the word of the Governor that the conditions have been met? MR. SCOTT: The Department, when the Department receives a certificate of pardon -THE COURT: Yes, sir. MR. SCOTT: They can make the assumption that all the conditions have been met. THE COURT: That all has been met. Because at that point it’s your understanding that that’s taken care of by the person who signs the commission.
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THE COURT: The Governor’s Office. MR. SCOTT: That’s correct. THE COURT: Okay. And did you have that on every one that you had pardoned, the individuals that are listed as defendants? MR. SCOTT: We do not have notice that -COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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THE COURT: have to have?

I mean, do you have a

pardon, certificate or whatever it is you I think Yes, Your Honor. MR. SCOTT: everybody on this -- well, let me back up because the fist -I just want to see what THE COURT: it looks like. MR. SCOTT: I don’t have it with me. I don’t have a certificate with me. THE COURT: Okay. MR. SCOTT: They have been filed with the Secretary of State’s Office, and my understanding is they’re actually online so anybody can pull them, can actually download them. THE COURT: What does it say? ATTORNEY GENERAL HOOD: Your Honor, I’m sorry, we didn’t bring one either. THE COURT:
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filed with the Secretary of State, and it’s my understanding that -- here’s how the whole procedure, apparently, because everybody is blaming everybody else. THE COURT: Correct. ATTORNEY GENERAL HOOD: The Governor is saying that the parole board has a duty COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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to check it out and do all these requirements. THE COURT: Well, what it says is that the person who is applying. ATTORNEY GENERAL HOOD: Right. And this is kind of odd. provided. THE COURT: Yes, sir. ATTORNEY GENERAL HOOD: Gatlin is telling MDOC to run it, and MDOC did it and the State -- we had to pay for it, where the Constitution requires -THE COURT: -- the applicant. ATTORNEY GENERAL HOOD: Yes, ma’am, and he didn’t do that. MDOC ran that for him, but even giving him the benefit of that -THE COURT: But even if it was the applicant, the applicant should have to produce something to the Governor for the
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ATTORNEY GENERAL HOOD: he got a duty to run it.

Yes, ma’am,

THE COURT: Okay. And that is what you don’t have. ATTORNEY GENERAL HOOD: Yes, ma’am. But we say the Governor had the duty to check it out before he signs this petition. COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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THE COURT:

Correct, that’s what I’m

saying, but for him to check it out, it should have been the applicant who produced it before he placed his signature on the pardon is your position. ATTORNEY GENERAL HOOD: And the Governor is -- it’s what I’ve heard, I don’t know, but his lawyers have told our lawyers that, oh, well, that’s the parole board’s duty to do that. The Governor just says if he gets a recommendation from the parole board then he signs off on it. But the problem is, I had to send Stan Alexander, my chief of public integrity and two biggest investigators we had down to the parole board and say let us see these files they said that you have on this stuff. They say, well, we sent all that to the Governor’s Office. THE COURT: You’ve talk about the
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in terms of what needs to be alleged for an injunction at this point. And if the court were to issue an injunction and set a hearing, is there any detriment that would occur to the five people or what do
you

propose to those five people who were

released on Sunday so as to not jeopardize them should the pardons be valid? COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12

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ATTORNEY GENERAL HOOD: Your Honor, I wanted to treat them as if it was an invalid pardon and they had escaped and have them arrested today. But our lawyers looked at it every which way we could and so we found the safest option was to ask the court to order that they report immediately to the Department of Corrections and continue to report every 24 hours, and then show up for a hearing to prove or show some proof that they may have actually met the publication requirements. determine. THE COURT: So that would mean that they could remain, basically the status quo is still there, a reporting requirement. ATTORNEY GENERAL HOOD: Yes, ma’am. THE COURT: And that they appear for a hearing at the time I set it for verification. this court for? ATTORNEY GENERAL HOOD: Yes, ma’am. The status quo would also be the same for those who are already incarcerated that we’re asking MDOC to hold up on processing until we can -COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net That’s what you’re asking So that was the safest route to avoid a 1983 action that we could

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THE COURT: How many are we talking about? MR. SCOTT: I think the list is approximately 200. And I don’t know how many are actually incarcerated. The Department is going through it right now. The latest update I heard was they had at least 18 that they found. I think the rumored number is around 30. ATTORNEY GENERAL HOOD: I thought that it would be easy for MDOC to just check the list and show me how many you got incarcerated, the list that we attached to our complaint of the governor’s list. But, apparently, David, it’s much more difficult than just that. Because they may have -- all they got, say, is David King, and they got ten David Kings. THE COURT: Well, are you asking that this be amended to say, and Does 1-100 or 200 1 because did you not ask me to require them to produce something with reference to 30 of the other 200 or however many? ATTORNEY GENERAL HOOD: What we would ask is that just MDOC cease processing any pardons of people who were presently incarcerated, the names and number of whom we do not know at this point. So we’re
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just saying to MDOC just stop processing them until we can figure out how many are incarcerated, and we’ll supplement that to the court, surely we can have it by tomorrow who all is incarcerated, we will provide them with notice. We want to make sure everybody has due process in this, but just as long as we can get this stopped temporarily so nobody is released that we have to go chase all over the nation when we find whether or not these so-called pardons were valid. THE COURT: Okay. Then the court will grant an ore tenus motion to add "and does." How many total is it so that I got the correct number of "does" because I would have to have them under the court’s jurisdiction to ask for that to be produced to you. You have named five, but you’re asking for information relative to the entire list. And you don’t have to name them, but certainly they may be added, and in order to do that the amendment would allow the court to issue something to provide you with that information. You may come in here on Wednesday and you-all have resolved everything. But if you want the information, then the court
COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 2 3 4 5 6 7 8 9 10 11 1.2 13 14 15 16 17 18 19 20 () 22 23 24 25 26 27 28 29 will allow the amendment to add to the first five "and does" 1 through -- what’s the total number on the list? ATTORNEY GENERAL HOOD: Your Honor. THE COURT: I think 216,

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"And does" then, "1-211?"

ATTORNEY GENERAL HOOD: We will try to have certainly have prepared an amendment for those that are incarcerated by tomorrow. THE COURT: For right now you want to just move on these? ATTORNEY GENERAL HOOD: Yes, ma’am. What we’re asking in here in addition to just asking the Department of Corrections to not process any further of those who are incarcerated, we’re also asking that the Department of Corrections and the Governor’s Office provide us with the documentation that they have in their possession which may show some publication. So that would be really the Department of Corrections providing information. We will find out the list of those convicts, we will move to amend, and we will notice those who are presently incarcerated of the hearing. It’s going to be a question as to whether or not you would want all of those that are COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

Emergency Hearing, 1-11-12 1 2 3 incarcerated no telling where in the court -THE COURT: I understand. That can be handled on Wednesday at the hearing if you need to make any enlargement. ATTORNEY GENERAL HOOD: Okay.

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THE COURT: Anything further from the Department of Corrections at this time? MR. SCOTT: Your Honor, the Commissioner doesn’t contest the petition and relies on the wise judgment of the court in making a ruling on that. THE COURT: Thank you, counsel. me a few minutes, counsel. back. before I go back? MR. SCOTT: No, Your Honor.
(COURT IN RECESS)

Give

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Do you have any case law, counsel,

THE COURT: Counsel, the court has decided to grant the injunction, and I’ve set a hearing for next Wednesday. Hold on just a moment. Let me be sure I got the date correct. 11th? MR. SCOTT: 21st, correct? MR. SCOTT: That’s right. THE COURT: And the 21st, what’s the COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net Yes, Your Honor. THE COURT: Ten days from that is the What’s today’s date, the

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day on that? MR. SCOTT: The 21st is a Saturday, Your Honor. THE COURT: Okay. And what’s that following Monday? MR. SCOTT: The 23rd. THE COURT: 23rd. I’m going to do it Okay. on, schedule it for Monday at 3:00.

Give her a chance to run that page four. I’m going to pull that out and substitute them. Counsel, the clerk’s office is closed. The courthouse closes at 5:00 and everybody went home. The court administrator has to put the seal of the court on it, and I will give you copies of the orders with the court’s seal. I have made some modifications in the order. That if you will put in your Hopefully records on Monday, 23rd at 3:00 p.m., the court will have it’s hearing. by that time you will have the information and you will be able to verify that the Constitution has been complied with. The court has added the parole board as an entity that may or may not have documents, but should they have them they will need to produce those, and I have modified the order to include them. COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

A’.

Emergency Hearing, 1-11-12 1 Because I’m ordering the production of documents on persons other than the five, I have amended based on what you have

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stated to me to add to the defendants "and does 1-200", which allows the state to add any persons after the hearing but would give me the authority to require the production of those documents for those individuals. Let me see if there’s anything else that I added. The court does find the state has met its burden for the temporary restraining order, and because of the types of crimes where the clemency or the pardons were granted, the court list those and finds that murders, manslaughters, rapes, arm robbery, ag-assaults, sexual assaults, kidnapping, burglary, domestic violence, etcetera, are crimes sufficient to raise the level of public interest and also is a threat to the public safety if those persons have been pardoned without the conditions precedent to the Governor having the authority to do the pardons. The court finds that certainly the Governor does have the authority, but the Constitution is clear. It is not ambiguous. There are condition precedent and the publication is required to be COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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published by the applicant or on behalf of the applicants, which it-means that attorneys could file them, family members could file them. They should be provided back either to the MDOC, the parole board or the Governor, and there should be some record to indicate compliance. And as such, that’s what the court will be looking for on next Monday. Anything further at this time? ATTORNEY GENERAL HOOD: Your Honor, a couple of things we would like to update the court on. THE COURT: Sure. ATTORNEY GENERAL HOOD: We found out that there are actually 21 that are incarcerated. those. THE COURT: Correct. That’s why I put that "does" on there. That would automatically give you a right to amend at any time to increase the number, but would give the court jurisdiction to produce documents of parties not named. ATTORNEY GENERAL HOOD: I’d like to discuss with the court the logistics of those 21 incarcerated certainly as soon as we amend and name, we will serve them
COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

We will be filing an

amendment tomorrow requesting that we name

Emergency Hearing, 1-11-12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 immediately. THE COURT: Yes, sir.

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ATTORNEY GENERAL HOOD: Is there some method here in Hinds County that we could set up -- the Department of Corrections has capability to have a teleconference so that the convict could be present. They don’t have a right to an attorney in this type of civil action, but we could -David has said that the federal court often has these hearings and they can make it available for the convict. But on our end, if the court doesn’t have that capability perhaps we could through our office get, I think maybe we have something that -- would that work for the court, rather than having them present? THE COURT: You mean like video conferenci ng? ATTORNEY GENERAL HOOD: Yes, ma’am. THE COURT: That’s what I been begging Hinds County for and just had a meeting with the sheriff to see if his budget would accommodate such. It’s ridiculous in this era that with skype and what’s the face time with the ipad-2 and telephones, that we shouldn’t be able to do that. The statue allows for that type of conferences. And right now in this COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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courtroom we don’t have it available for us. Now what is it that you have that you believe will accommodate that? ATTORNEY GENERAL HOOD: I’m sure our office between now and then, if you’ll allow us to, we’ll set up something in here that we can make work if you give us permission to try to do that. THE COURT: That’s no problem at all. You see those bailiffs over there. All you have to do is contact the office and they’ll make themselves available for you. I will tell you that we got trial scheduled, but on Monday at 3:00 we should be finished with picking any juries, and we will stop at that time. So you can come at any time on Monday after qualifying of the jury -- well, let me see. Call the bailiffs on Monday and maybe there is another courtroom we may also have available to us if this courtroom is being used. We have the county courtrooms, and we might have one of the other circuit judges. We’ll find the place if you’ll call the bailfffs about 10:00 on Monday, we’ll be able to tell you where you can set up. ATTORNEY GENERAL HOOD: Thank you, COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

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Your Honor. One last thing if I may approach the bench. THE COURT: Yes, sir. ATTORNEY GENERAL HOOD: I have an example of a pardon. And we have a commutation if you would like to see any difference, but those are just examples for the -THE COURT: Okay. The way the certificate goes. ATTORNEY GENERAL HOOD: Yes, ma’am. This is a suspension sentence document you might want to peruse. THE COURT: Thank you, counsel. You have Ms. Ashley’s number and you can contact her and she’ll get you to the bailiffs. Anything further from the Department? MR. SCOTT: THE COURT: No, Your Honor. If not, then the court

17

stands in recess until 3:00 p.m. on Monday, January 23rd, which is next Monday. And I look forward to seeing you at that time. ATTORNEY GENERAL HOOD: Thank you, Your Honor.
(HEARING CONCLUDED)

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CERTIFICATE OF REPORTER
I, ESTELLA WREN, Certified Court

Reporter in and for the County of Hinds, State of Mississippi, hereby certify that the foregoing proceedings, and including this page, contain a true and correct transcript of the proceedings as taken by me at the time and place heretofore stated, and later reduced to typewritten form by computer-aided transcription under my supervision to the best of my skill and ability. I further certify that I am not in the employ of or related to any counsel or party in this matter, and have no interest, monetary, otherwise in the final outcome of the proceedings. Witness my signature this the 12th day of January, 2011.

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COMPUTER-AIDED TRANSCRIPTION BY estellawren@bellsouth.net

E 5 ILLLA WREN, CSR#1141

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT iTEM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EXRRL. THE STATE OF MISSISSIPPI VS.

PLAINTIFF

CAUSE NO.___________

CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVIDGATI CHARLES HOOKER, ANTHONY MCCRAY, AN JOSEPH OZMET, 2J 775/ Z

ED
12 0112
NCIRT CLERK ENDANTS

ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF

THIS CAUSE came on for hearing on January 11, 2012 on the plaintiff Jim Hood, Attorney General for the State of Mississippi,
ex rel.

the State of Mississippi’s Motion for

Temporary Restraining Order and Injunctive Relief, and the Court, having considered the Motion,
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in connection with the Motion, and following a hearing, fmds

the Motion should be GRANTED for the following reasons: THE COURT FINDS THAT plaintiff Attorney General Hood is the chief legal officer of the State of Mississippi charged with bringing all suits which affect the public interest. Defendant Commissioner Christopher Epps is the Commissioner of the Mississippi Department of Corrections which is charged with maintaining persons convicted of crimes against the State of Mississippi and sentenced to its custody. GovemoBryant was elected as Governor during the general statewide election on November 8, 2011, Governor Bryant took the oath of office, consistent with Mississippi law, on
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January 10, 2012. Former Governor Haley Barbour was Governor Bryant’s predecessor in office. During Governor Barbour’s tenure in office, he issued pardons and reprieves, and granted clemency and/or conditional suspensions of sentences to certain individuals convicted of felonies and other crimes under the laws of the State ofMississippi,LL44u,t.de’,
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On or before January 10, 2012, former Governor Haley Barbour officially issued executive orders granting certain pardons, including, but not limited to reprieves, clemency, and/or conditional suspensions of sentences, to more than 200 individuals previously convicted of crimes against the State of Mississippi. Certain individuals who were serving sentences for felony convictions and in the custody of the Mississippi Department of Corrections on or before January 10, 2012 were purportedly granted pardons by former Governor Barbour on or before that date. Some or all of the aforementioned persons failed to publish a petition for pardon in a newspaper in the counties where their crimes were committed, or an adjoining county if no newspaper is published in those counties, for thirty days prior to the purported pardon granted to them by-former Governor Barbour, or otherwise has failed to come forward with sufficient proof of such compliance at this time. Section 124 of the Mississippi Constitution states: In all criminal and penal cases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the Legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the Legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for days, in some newspaper in the county where the -2 o\uT\ - ( i

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crime was committed, and in case there be no newspaper published in said then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should begrat. (na addd)

Pursuant to Section 124, no person convicted of a felony may be pardoned by the Governor unless, as a condition precedent, the applicant’s petition for pardon is published by newspaper for thirty days prior to issuance of the pardon in the county specified therein. THE COURT FURTHER FINDS THAT, Attorney General Hood has shown, through the facts found by the Court above, that temporary injunctive relief is warranted because there is a substantial likelihood of success on his claim that the subject pardons violated Section 124 of the Mississippi Constitution. There is a sufficient threat of irreparable injury should the subject individuals be released based upon the purported gubernatorial pardons That threat of injury sufficiently outweighs any potential threat posed to defendants by granting the requested injunctive relief. Further, the public interest would be served by granting the requested injunctive relief. Exigent circumstances exist due to the risk that the aforementioned individuals will be improperly released from custody, thus justifying expedited temporary injunctive relief against the defendants. The Attorney General has complied with the requisites of Miss. R. Civ. P. 65(b) for a temporary restraining order without notice because his submissions to the Court demonstrate that immediate and irreparable injury, loss, or damage will result before the defendants may be heard, and the Attorney General has provided notice to Defendant Epps of this hearing. The court
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Pursuant to Miss. R. Civ. P. 65(c), the Court dispenses with the requirement of requiring the Attorney General to provide security for the injunctive relief requested. IT IS THEREFORE ORDERED pursuant to Miss. R. Civ. P. 65(b) that A. The defendants shall obtain and provide plaintiff and the Court documented and

sufficient proof consistent with Section 124 of the Mississippi Constitution from any and all persons convicted of a felony, and to whom a pardon was issued by former Governor Barbour; B. The Mississippi Department of Corrections is prohibited from releasing from

custody any person listed on Exhibit A until the Department provides the Attorney General and the Court with documented and sufficient proof that such person has complied with all of the requirements of Section 124; C. XI

Governor Phil Bryant, Commissioner Epps,nd the inmate defendants shall

provide the Attorney General with all documents and other information regarding the individuals listed on Exhibit "A"s compliance with Section 124 of the Constitution; D. Defendants Kern, Gatlin, Hooker, McCray, and Ozmet shall PERSONALLY

APPEAR before this Hinds County Circuit Court in Jackson, Mississippi, for a preliminary in unction hearing on_________ ________

L,

E.

__ ___________ _____________ 20 123.22pfl., ,4t r(ee4i, .bDefendants Kern, Gatlin, Hooker, McCray, and Ozmet are,to

contact the Mississippi Department of Correction’s Jackson office (or other office designated by the Department and approved by the Attorney General) every 24 hours to provide accurate information on their exact locations and any plans to travel beyond their hom

r. ’ r

4

IT IS FURTHER ORDERED that the plaintiff shall provide copies of this order to the defendants by hand delivery immediately upon entry by the Clerk of Court. THIS the //day of January, 2012

atT.M.

HINDS COUNTY CIRCUIT COURT JUDGE

1

1114V

14

Governor Haley Barbour Pardons 2004-2012
Govrnor
Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Barbour Hoey Barbour Haley Barbour Haley Barbour H aley Barbour H aley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour / Barbour hitey Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour 1

Ex,Order# Date Issued
998 999 1000 1001

Name of Person

1002
1046 1047 105 106 1070 1071 1072 1073 1075 1076 1077 1078 1079 1080 1081 1082 1083 1084

1085
1086 1087 1088 1089 1090 1091 1092 1093 1094

7/16/2008 Paul Joseph Warnock 7/18/2008 Michael Graham 7/16/2008 Bobby Hayes Clark 7/16/2008 Clarence Jones 7/16/2008 Willie James Kimble 12/29/2010 Jamie Scott 12/29/2010 Gladys Scott 6/30/2011 Michael J. Jones 1/6/2012 Nathan Kern 1/6/2012 David Gatlin 1/6/2012 Charles Hooker 1/6/2012 Anthony McCray 1/6/2012 Joseph Ozment 1/10/2012 Michael Davie Graham 1/10/2012 Victor C. Collins 1/10/2012 Larry Darnel Roby 1/10/2012 Booker T. Barnes 1/10/2012 Anthony Sansing 1/10/2012 Jimmy Lee Avera 1/10/2012 Steven Charles Adams 1/10/2012 Donald Dwight Adcock 1/10/2012 Thomas Ailes 1/10/2012 Mark Hubbard Allen 1/10/2012 Patricia Amacker 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 Michael Clinton Armstrong William Antoin Bardwell Robert King Barg Thomas Holt Beasley Melanie Suzanne Beelond Larry Bell Vincent Cardell Bell Frank Delomme Borders Jr. Harry Russ Bostick

Crime Murder Murder Manslaughter Murder Murder Robbery with Deadly Weapon Robbery with Deadly Weapon Sale of a Controlled Substance Robbery Murder, Aggravated Assault, Burglary Murder Murder Murder, Conspiracy and Armed Robbery Murder Murder Murder, Racketeering Murder Murder Murder Grand Larceny and Possession of Cocaine Arson Unlawful Sale of Controlled Substance Vehicular Homicide False Pretense, Felony & Misdemeanor
Attempted Enticement of atd for Sexual Purposes

Type of pardon
Full, Complete and Unconditional Pardon Indefinite Suspension of Sentence Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Indefinite Suspension of Sentence Indefinite Suspension of Sentence Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

Sale of Marijuana, Less Than One Ounce Possession of a Controlled Substance
Sale of Marijuana, Sale of Cocaine

Haley Barbour Haley Barbour Haley Barbour Does Not Exist

1095 1096 1097 1098

1/10/2012 Lee Brackeen Jr. 1/10/2012 Karlton Lee Bradley 1/10/2012 Dwight E. Breland

A F

Possession of Cocaine Escape from Custody, Charge of Felonuy Murder, Accessory After the Fact Burglary DUI 3rd offense Shooting a Firearm into a Dwelling, Poss. Of Chemicak with Attempt to Manufacture/Distribute Possession of Cocaine/Sale with Intent Possession of Controlled Substance

C2
f;pI

Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

EXHIBIT

j

Governor Haley Barbour Pardons 2004-2012
Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour ’Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Py Barbour ’ Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour 1099 1100 1101 1102 1103 1104 110 110 1107 1108 1109 1110 1111 1112 1113 1114 1115 111 1117 1118 111 112 1121 1122 1123 1124 1125 1126 1127 1128 112 11 11 11 113 1134 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1710/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 Bobby Neal Brown Douglas Duane Burcham Aaron Clay Butler Henry Preston Byrd John Springer Buchanan Jeanette Walker Cain Buster Caldwell Bobby Ray Camp Daniel Caleb.Campbell Gerald Calhoun Kenneth Carver Burglary Auto Burglary & Grand Larceny Conspiracy to Sell Marijuana Robbery sale of Controlled Substance uttering Forgery gape and Armed Robbery urglary and Larceny of a Building onspiracy to Distribute Cocaine Possession of a Controlled Substance Burglary Conspiracy to Commit Larceny & Grand Larceny Burglary of an Occupied Dwelling-, Aggravated assault fobbery House Burglary rescription Forgery Piossession of Marijuana with Intent to Sell Felony False Pretense Burglary Grand Larceny Forgery DUI Causing Death Aggravated Assault Burglary Aggravated DUI Obtaining Controlled Substance By Deception; Prescription Fraud Manslaughter sale of Marijuana Aggravated DUI Death tmbezzlement Manslaughter Burglary of a House Conspiracy to Commit Grand Larceny Aggravated Assault Possession of Precursor Chemicals lAuto Burglary; Grand Larceny Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

1/10/2012 Perry Lee Cauthen 1/10/2012 Jess Cessna 1/10/2012 Andrew Camphor 1/10/2012 Michael Lawrence Collum 1/10/2012 Ryan Jeremiah Cooper 1/10/2012 James Richard Chenault 1/10/2012 Nathaniel Cunningham Jr. 1/10/2012 Allison Bernadette Dazet 1/10/2012 Stanley Duncan 1/10/2012 Peggy Sue Hand 1/10/2012 Earnest Scott Favre 1/10/201 Russell Glen Ferguson 1/10/2012 Mark Steven Ford 1/10/2012 Jamie Donald Franks 1/10/2012 Aubrey Orlando Fratesi 1/10/2012 Randy Scott Fortenberry 1/10/2012 Rock Allen Gerald 1/10/2012 Gregg Patrick Gibbes 1/10/2012 Latisha R. Gilbert 1/10/2012 Mabrie C. Gilmer 1/10/2012 Norman Dwayne Givens 1/10/2012 Matthew Nelson Godfrey 1/10/2012 Sharrion Patrice Grant 1/10/2012 James Leslie Grantham 1/10/2012 Thomas Anthony Graziousi

-

(p CL

I- I-n

-

ica

C,

C,

-

-

I

Governor Haley Barbour Pardons 2004-2012
Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour H aley Barbour H aley Barbour aley Barbour Haley Barbour Hly Barbour Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour H aley Barbour H aley Barbour H aley Barbour Haley Barbour Haley Barbour Haley Barbour H oley Barbour H aley Barbour H aley Barbour E41ey Barbour Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Does Not Exist Haley Barbour Haley Barbour Haley Barbour

1

-

-

1135 1136 1137 1138 1139 1140 1141 1142 1143 1144 1145 1146 1147 114 114 115 1151 1152 1153 1154 115 11

115 7
1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 1170 1171

1/10/2012 Robert Brian Gregg 1/10/2012 Louis Edwin Griffin Jr. 1/10/2012 Ashley Seymour Gunter 1/10/2012 Jeffery Lee Haire 1/10/2012 Barbara Hamilton 1/10/2012 James Larry Hankins 1/10/2012 Wayne Thurman Harris 1/10/2012 Kevin Jerome Hatches 1/10/2012 Daniel Wayne Hendon 1/10/2012 Kimario Kuhron Hentz 1/10/2012 William Eric Henderson 1/10/2012 Sim Collins Holifielci 1/10/2012 Hunter Olin Hope 1/10/2012 Jesse Octavia Houston 1/10/2012 Joshua L. Howard 1/10/2012 Benjamin Earl Hussey 1/10/2012 John D. Jackson 1/10/2012 Jerome Francis Jackson 1/10/2012 Pamela Yvette Jackson 1/10/2012 Phillip Jackson 1/10/2012 Michael S., James 1/10/2012 April Michelle Johnson 1/10/2012 Shundrell Johnson 1/10/2012 Thomas Cole Kendall 1/10/2012 Tammy Kay Swanson 1/10/2012 Michael Derek Knauss 1/10/2012 Christopher Clark Kolb 1/10/2012 Anon LaDell Jordan 1/10/2012 Roy Michael Latham 1/10/2012 Bobby Joe Lee 1/10/2012 Terry James Lee 1/10/2012 Mary Brower 1/10/2012 Ernest Carl Lowery Jr.

Manslaughter (Culpable Negligence); DUI injury Homicide Burglary of an Automobile Possession of a Controlled Substance Burglary of a Residence and Robbery Armed Robbery Sale of Marijuana Possession of Cocaine Robbery Armed Robbery Kidnapping Grand Larceny Sale of 20 MM of Testosterone Embezzlement Statutory Rape Sale of a Controlled Substance Strong Arm Robbery Burglary and Larceny of an Automobile Strong Armed Robbery DUI Homicide Possession of a Controlled Substance Embezzlement Aggravated Assault Gratification of Lust Uttering Forgery P ossession of Stolen Property , Sale of Hydrocodone Burglary of a Dwelling Manslaughter Sale of Marijuana Burglary & Larceny of a Dwelling itorgery House Burglary; Uttering a Forgery

Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon - Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

-

N LU Uni CL-,

N’

-

1/10/2012 Herbert Lowery 1/10/2012 Amy Douglas Love Kevin Bandouglas 1/10/2012 McCullough

-

Possession of Marijuana with Intent to Deliver ldJttering Forgery; Burglary of an Automobile
-

Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

Unlawful Sale of Marijuana

3 of 8

Governor Haley Barbour Pardons 2004-2012
Felony Crime of Possession of Precursor Chemicals HaleyBarbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour 1172 1173 1174 1175 1176 1177 1178 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 John Earl McCool Jimmy McNeese Martin Miller Jack Michael Arlen Matthew Clinton Jason Moffitt John Becket Monaghan with Intent to Manufacture Methamphetamine Possession of Precursor Chemicals Felony Bad Check Burglary Conspiracy to Commit Voter Fraud S a le of Controlled Substance Possession of a Firearm by Convicted Felon; Grand Larceny; Aggravated Assault Possession of Crystal Meth with Intent Within 1500 Feet of a Church; Manufacture of Crystal Meth Within 1500 Feet of a Church Possession of Methamphetamine Possession of a Controlled Substance with Intent to Sell, Transfer or Distribute Burglary of an Automobile S a le of a Controlled Substance S a le of a Controlled Substance Burglary of a Business Aggravated Assault aggravated Assault Conspiracy and Burglary of Dwelling S a le of Cocaine Manufacturing Methamphetamine & Possession of Methamphetamine Possession of Controlled Substance Burglary of a Dwelling Aggravated Assault Conspiracy to Commit a False Pretense; False Pretense Murder and Aggravated Assault Possession of Marijuana with Intent to Distribute K i dnapping Armed Robbery Ebezzlement; Shoplifting; Conspiracy to Commit Crime of Felony Shoplifting S a le of LSD brand Larceny E4UI Death Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

1/10/2012 Charles Wesley Newby

Barbour Haley Barbour Haley Barbour Haley Barbour H aley Barbour Haley Barbour H aley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour P - ’-,Y-Ba rbour Haley Barbour Haley Barbour Haley Barbour H aley Barbour H aley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour

1179 1180 1181 1182 1183 1184 1185 1186 1187 1188 1189 1190 11 11 11 1194 1195 1196 1197 1198 1199 1200 1201 1202

1/10/2012 David Willard Newcomb 1/10/2012 Justin Wade Nunnery 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 Perry Tyson Owen Danny Lamar Peacock Shirley Peters Zachary Kane Polk Corey Powell Richard Earl Price Constance Renee Pruitt Lisa Ralston Brogdon Kenneth Bernard Ratliff

Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon
C,

CJ

1/10/20121 Shelly Ann Ray (Self) 1/10/20121 Norman Lee Redo 1/10/2012 Samuel Wade Reid 1/10/2012 Katherine Robertson 1/10/2012 Roslyn Murray Robertson 1/10/2012 Everett Franklin Rodgers 1/10/2012 John Montrell Rose 1/10/2012 Barry James Sanderson Jr. 1/10/2012 Demetries Andre Sanford 1/10/2012 1/10/2012 1/10/2012 1/10/2012 Dawn Renee Schaefer Jason Todd Shivers Perry Lee Sims Justin O’Keefe Smith

C’-

rJ

-4-

Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon IFull, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon I Full, Complete and Unconditional Pardon

1

I

Governor Haly Barbour Pardons 2004-2012
Haley Barbour Haley Barbour Haley Barbour Haley Barbour H aley Barbour H aley Barbour H aley Barbour Haley Barbour Haley Barbour Haley Barbour ’y Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour 1203 1204 1205 1206 1207 1208 1209 1210 1211 1212 1213 1214 1215 1216 1217 1218 121 122 1/10/2012 Linda Gale Smith 1/10/2012 Letie Canton Smith 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1110/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 Patricia Diane Southerland Billy Ray Sims Scott Mclean Smith Shirley Ann Smith Robert Edward Stanfield Robert D. Stakley Tyrone Steele Clemmie Rogers Stewart Jr. Thomas Stewart Neil Fowler Strickland Wesley Dwayne Spears Robin Creel Speath Emma Stuckey Paul James Sullivan Kevin Bradley Tabereaux Mitchell Travis Tanksley Forgery lRobbery with a Deadly Weapon Embezzlement ossession of Marijuana ale of Amphetamine tmbezzlement Sale of a Controlled Substance Ottering Forgery sale of Marijuana Embezzlement Receiving Stolen Property Burglary and Larceny of an Automobile; Burglary and Larceny Burglary of a Storehouse Burglary of an Inhabited Dwelling Manslaughter Assault on a Law Enforcement Officer Sale of Cocaine; DUI Homicide Larceny of Cattle Possession of Marijuana with Intent; Possession of Oxycodone; Delivery of Marijuana burglary of a Business Manslaughter Bribery and or Attempted Bribery Embezzlement Possession of Stolen Property Attempted Enticement of a Child for Prostitution , Burglary of a Dwelling House; Felony Possession of a Firearm DUI Death Manslaughter (2 counts) bUl Death Aggravated Assault DUI Third Offense 8mbezzlement conspiracy to Commit Armed Robbery; Accessory After Fact to Capital Murder Aggravated Assault Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Suspension of Sentence Full, Complete and Unconditional Pardon

Qq

CL

Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour ;y Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour

1221 1222 1223 1224 1225 1226 1227 1228 1229 1230 1231 1232 1233 1234 1235 1236

1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012

Kirby Glenn Tate Jimmy Lee Thomas Samuel Tisdale Jr. Steven A. Thompson Alice Triplett Clarence Crawford Tyer Jr.

Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Furl, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

N N

0

1/10/2012 Leton Celilous Upchurch 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 1/10/2012 Marion Lee Upchurch Jr. Joel Warren Vann Chelley Lee Wade Burton Hill Walden Bobby Gene Wallace Donna Meshea Walters Anthony Maxwell West

J

1/10/2012 Narquita Watson 1/10/2012 Aaron D. Williams

null, Complete and Unconditional Pardon
Full, Complete and Unconditional Pardon

5 of 8

Governor Haley Barbour Pardons 2004-2012
Sale of Controlled Substance; Possession of Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour 14’v Barbour Haley Barbour. Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Does Not Exist Does Not Exist 1237 1238 1239 1240 1241 1242 1243 1244 1245 1246 1247 1248 1249 1250 1251 1252 1253 1/10/2012 1/10/2012 1/10/2012 1/10/2012 CoreyDean Williams Carol Denise Williams Shirley Ann Winston Ralph Edward Worthy Hydromorphone Forged False or Fraudulent Prescription I#orgery Sale of Marijuana Unlawful Possession of Precursor Chemicals; Possession of Methamphetamine Ileceiving Stolen Property ale of Marijuana Sale of Marijuana and Receiving Stolen Property Armed Robbery Delivery of a Controlled Substance Statutory Rape Possession of Controlled Substance with Intent Aggravated Assault Uttering Forgery Robbery Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Medical/Conditional Suspension of Sentence Medical/Conditional Suspension of Sentence Medical/Conditional Suspension of Sentence Medical/Conditional Suspension of Sentence (P 1/10/2012 Annie Pearl Rash 1/10/2012 John Davis Medical/Conditional Suspension of Sentence Medical/Conditional Suspension of Sentence
CJ

1/10/2012 Charles Edward Yates Jr. 1/10/2012 Charles Jerome Ypung 1/10/2012 Betty Jean Linston 1/10/2012 Hardy McCormick Jr. 1/10/2012 James Lewis Black 1/10/2012 Edith Watts 1/10/2012 Curtis Thomas 1/10/2012 Danny Joe Stapleton 1/10/2012 Johnny Lee Nettles

-

Medical Suspension of Sentence; Under

y Barbour

1254

1/10/2012 Travis Orlando Hill

Possession of Marijuana with Intent to Distribute

Haley Barbour Haley Barbour Haley Barbour Haley Barbour

1255 1256 1257 1258

1/10/2012 Tawanda Jackson 1/10/2012 Rheon McShepard 1/10/2012 Melissa Ann Cooper 1/10/2012 Jesse Buie

.

Manslaughter, Armed Robbery and Kidnapping lflomicide or Murder Sale of Controlled Substance Felony DUI

Supervision of MDOC Intensive Supervision Program (House Arrest) Medical Suspension of Sentence; Under Supervision of MDOC Intensive Supervision Program (House Arrest) Medical/Conditional Suspension of Sentence Medical/Conditional Suspension of Sentence Medical/Conditional Suspension of Sentence

C,

.. .-..---

Governor Haley Barbour Pardons 2004-2012
Medical Suspension of Sentence; Under Supervision of MDOC Intensive Supervision Program (House Arrest) Full, Complete and Unconditional Pardon Conditional Clemency on Condition I hat She Serves 3 Years in MDOC Intensive Supervision Program (House Arrest) and Additional 2 Years Under Supervision of MOOC Community Corrections Division Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Medical/Conditional Suspension of Sentence Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

Haley Barbour Does Not Exist Haley Barbour

1259 1260 1261

1/10/2012 Nichelle Elaine Brandon 1/10/2012 Daniel Mac Dobbins

Aggravated Assault Possession of Marijuana

Haley Barbour "v Barbour / Barbour Haley Barbour
-

1262 1263 1264 1265 1266 1267 1268 1269 1270 1271 1272

1/10/2012 Karen Irby Judy Lynn Eichelberger 1/10/2012 Hawkins 1/10/2012 Ellis Ray Mooneyham 1/10/2012 Leon Turner 1/10/2012 Derrick Lynn Guiton 1/10/2012 Walter James McKee 1/10/2012 Eldridge Dean Bonds 1/10/2012 Thomas Levi Howell 1/10/2012 Harold L. Miller Ill 1/10/2012 1 Reggie Rogers 1/10/2012 John Mitchell

Manslaughter (2 Counts) Conspiracy to Commit Forgery Birglary of a Dwelling Murder Homicide/Murder; Simple Assault Armed Robbery F rcible Sexual Battery Sle of Embezzlement; Burglary Manslaughter Felony DUI Sale of Controlled Substance

Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour

o

to

conspiracy to Manufacture Methamphetamine; Haley Barbour Haley Barbour Haley Barbour y Barbour -. y Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour Haley Barbour

1273
1274

1/10/2012 Emily Rebecca Hentz

1275 127
127 127 1279 1280 1281 1282 1284 1285 1286

1/10/2012 Aaron Brown 1/1012012 Carol Pinkston 1/10/2012 Guy Blan Newcomb
1/10/2012 Marion Thompson 1/10/2012 Larry Harper 1/10/2012 Kelly Bellapani 1/10/2012 Jennifer Wilder 1/10/2012 Azikiwe Kambule 1/10/2012 Douglas Hunter Helndman 1/10/2012 Larry Booker 1/10/20121 Lindsay Kathryn Welch 1/10/20121 Steven Todd Thompson

Attempt to Manufacture Methamphetamine Murder; Concealed Weapon; Possession of a Controlled Substance burglary Sale of Cocaine 4rmed Robbery lflomicideJ Aggravated Assault; Felony Possession of a Weapon 0 ossession of a Controlled Substance sexual Battery Accessory After the Fact to Murder; Armed arjacking Cyberstalking Uttering Forgery Manslaughter (Culpable Negligence) Domestic Violence
,

Full, Complete and Unconditional Pardon
CJ

Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon Full, Complete and Unconditional Pardon

C, C,

7 of 8

Governor Haley’ Barbour Pardons 2004-2012
Haley Barbour Haley Barbour Haley Barbour 1287 1288 1289 1/10/2012 Brenda Louise Travis 1/10/2012 Patricia L Simpson 1/10/2012 Robert Henderson Felony Shoplifting Manslaughter Receiving Stolen Property; Possession of Cocaine Full, Complete and Unconditional Pardon Conditional Indefinite Suspension of Sentence Full, Complete and Unconditional Pardon

Ifi

C, cP
C,

I.

.4 . .

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
VS.

PLAINTIFF CAUSE NO. 251-12-00033 CIV

CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN; DAVID GATLIN; CHARLES HOOKER; ANTHONY MCCRAY; JOSEPH OZMENT; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULIE; KATHERINE ROBERTSON; KIRBY GLENN TATE; AND JOHN AND JANE DOES 1-200

FILED
JAN 25 2012
ARBAM DUNN, aRCuLTcLERK

DEFENDAIQF

ORDER DENYING MOTION TO TRANSFER AND/OR MOTION TO DISMISS THIS CAUSE came on to be heard on the Defendants’ Charles Hooker, David Gatlin, Nathan Kern, and McCray Motion to Transfer this matter from Senior Judge Tomie T. Green to Judge Jeff Weill and/or Motion to Dismiss. Having reviewed the submissions of the Defendants with regard to the Motion to Transfer and being otherwise thoroughly advised in the premises, the Court is of the opinion that the Defendants’ Motion is not well-taken and should be denied. ........ The Court finds the order for the temporary restraining Order and order of reassignment were both signed on January 11, 2012 at 5:45 p.m., and properly filed with the Circuit Clerk on the following business day, January 12, 2012. Further, the Court finds that the order of reassignment is proper. Therefore, the Defendants’ Motion to Transfer is without merit and should be denied. Having further reviewed the submissions of the Defendants with regard to the Motion to Dismiss and being otherwise thoroughly advised in the premises, the Court finds that the

.4’.

Attorney General on behalf of the State of Mississippi and on behalf of the public’s interest in Constitutional compliance, has standing and is duty-bound to raise this issue before the Court. Therefore, the Court is of the opinion that the Defendants’ Motion to Dismiss is not well-taken and should be denied. The court also finds that pardons are acts of grace and mercy, thus, they do not automatically confer due process rights upon the Defendants, except to allow a defendant an opportunity to present evidence and to show that the applicant, has met constitutional prerequisites to the issuance of a purported pardon. The Court further finds that the Complaint for Injunctive Relief is not a challenge to the Governor’s authority to pardon, but addresses the issue of whether a pardon exists or has been granted, n accordance with constitutional mandates. It is well-settled that the Governor may, by proper pardon, extend mercy or forgiveness to murderers, rapists, child molesters, or any other persons convicted in the courts. The review by this Court will in no way challenge, question, or interfere with the Governor’s motives, reasonableness or judgment in granting such pardon. IT IS, THEREFORE, ORDERED and ADJUDGED that the Defendants’ Motion to Transfer is hereby denied. IT IS, FURTHER, ORDERED and ADJUDGED that the Defendants’ Motion to Dismiss is hereby denied. SO ORDERED and ADJUDGED, this the _2day of January, 2012.

TOMIE T. GREEN SENIOR CIRCUIT JUDGE

7/(4

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL HINDS COUNTY, MISSISSIPPI JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
VS.

a
DU NFt

D
L.ERK

.---------------D.c.

PLAINTIFF

CAUSE NO. 251-12-00033 CIV

CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN; DAVID GATLIN; CHARLES HOOKER; ANTHONY MCCRAY; JOSEPH OZMENT; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULE; KATHERINE ROBERTSON; KIRBY GLENN TATE; AND JOHN AND JANE DOES 1-200 ORDER DENYING MOTION TO DISQUALIFY THE OFFICE OF THE ATTORNEY GENERAL

DEFENDANT

THIS CAUSE came on to be heard on the Defendants’ Charles Hooker, David Gatlin, Nathan Kern, and Anthony MeCray Motion to Disqualify the Office of the Attorney General. Having reviewed the submissions of the Defendants and being otherwise thoroughly advised in the premises, the Court is of the opinion .that Defendants’ Motion is without merit and is not relevant to the issues before the ’Court as to whether there was in fact publication as required by the Mississippi Constitution, and therefore should be denied. IT IS, THEREFORE, ORDERED and ADJUDGED that thb Defendants’ Motion to Disqualify the Office of the Attorney General is hereby denied. SO ORDERED and ADJUDGED, this the 4#day ofJanuary,O12.

TOMtET. GREEN SENIOR CIRCUIT JUDGE

Q6

4.

From: Sent:

To:
Subject:

ESTELLA WREN [estellawren@bellsouth.net ] Thursday, January 26, 2012 8:40 AM tomcerikIowreypa.com 0123012 Hearing

Torn, Judge Green has received written request for transcript. The earliest the transcript will be available is by the end of day on Monday after same has been provided to the court for review.
No virus found in this message. Checked by AVG - www.avg.com Version: 10.0. 1416 / Virus Database: 2109/4767 - Release Date: 01/26/12

1

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
V
.

PLAINTIFF CAUSE NO. 251-12-33 CIV

CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVID GATLIN, CHARLES HOOKER, ANTHONY McCRAY, AND JOSEPH OZMET; KATHERINE ROBERTSON; KIRBY GLENN TATE; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULE; AND JOHN OR JANE DOES 1-200

FILED
JAN 20 2012
BARBARA DUNr( ORCUITCLERK

ic.
DEFENDANTS

SPECIAL APPEARANCE FOR PURPOSES OF MOTION TO TRANSFER AND/OR MOTION TO DISMISS

NOW COME Defendants Charles Hooker, David Gatlin, Nathan Kern, and Anthony McCray, through undersigned counsel, with full reservations of all their jurisdictional and other defenses, including, but not limited to their Rule 12 defenses, and appear specially to move this Honorable Court to transfer the cause for further consideration by the transferee judge or, if not transferred, to alternatively to dismiss the Complaint filed herein, for the reasons set forth more fully herein below.
Case Should be Transferred

I.

Rule 1.05A of the Uniform Circuit and County Court Rules requires random

assignment of civil actions filed with the Clerk of Court. This civil action was filed on January 11, 2012, and randomly assigned to the Honorable Jeff Well. However, an order was entered on January 12,2012, the day after the TRO was entered by the Honorable Tomie T. Green, transferring the case to the docket of Senior Judge Green. Rule 1.05A lists two instances in which ajudge other I

than the one originally assigned may hear portions of a case: 1) to handle preliminary procedural matters if the district has a policy of setting motion dates set in advance with judges being preassigned to certain dates; and 2) if the district has established local rules governing re-assignment fur reasons ofjudicial economy and efficiency. 2. The local rules for the Seventh Circuit Court District have no provisions for

reassignment of cases, even in the event of a request for emergency relief. Further, there are no provisions for reassigning the ultimate disposition of the merits of a case to a different judge. The order entered re-assigning the instant cause violates the requirement of random assignment of cases. This cause should therefore be re-assigned to Judge Weill for all further proceedings, including consideration of the grounds for dismissal set forth herein below. Motion to Dismiss Rule 12(b)(6) tests the legal sufficiency of the complaint. Dismissal for failure to

3.

state a claim under Rule 12(b)(6) is appropriate where it appears beyond a doubt that plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. Generally, a 12(b)(6) motion Will be treated as a summary judgment motion if the court finds it necessary to consider matters outside of the pleadings. Rosen v. GulfShores, Inc., 610 So. 2d 366 (Miss. 1992). 4. However, the concern in allowing courts to look only to the pleadings in deciding a

12(b)(6) motion is that statements outside of the Complaint will not provide adequate notice to a plaintiff. However, where the plaintiff has actual notice of all of the information in the movant’s papers including attached documents and has relied upon these documents in framing the complaint, the necessity of translating a Rule 12(b)(6) motion into a summary judgment motion is largely dissipated. Sennett v. United Stales Fidelity & Guaranty Co., 757 So. 2d 206 (Miss. 2000). 2

7.4.

A. Lack of Standing The Mississippi Supreme Court in CiiyofP!cayune i Southern Regional(orp., 916 So. 2d 510 (Miss. 2005). defined standing as whether ’the particular plaintiff had a right to judicial enforcement of a legal duty of the defendant...." As recently set forth in Hall v. (’ilyofRidgeland, 37

So. 3d 25 (Miss. 2010). "to establish standing on grounds of experiencing an adverse effect from the conduct of the defendantlappellec, the adverse effect experienced must be different from the adverse effect experienced by the general public." 6. The State, acting herein through the office of the Attorney General, has not suffered a

particular harm which gives rise to an actionable interest. The Attorney General’s office has neither pled nor demonstrated a particular harm experienced by the general public. In fact, the nature of the Complaint tiled in this matter is that it purports to enforce a very generalized interest of the public which the Hall decision describes as being insufficient to establish standing. For this reason, the. Attorney General lacks standing to seek the requested relief and the matter should be dismissed. B. Lack of Subject Matter Jurisdiction Article 5. Section 124 of the Mississippi Constitution of] 890 grants to the Governor the sole power to grant pardons in all criminal cases, except those of treason and impeachment and where there has been no conviction of an alleged crime: In all criminal and penal cases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit lines, and in cases of forfeiture, to stay the collection until the end of the next session of the Legislature, and by and with the consent of the Senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with the consent of the Senate, but may respite the sentence until the end of the next session of the Legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have

published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.
Id

8.

in Stale v. Kirby, 96 Miss. 629, 51 So. 811 (1910), the Mississippi Supreme Court

recognized that the power to pardon is granted by the Constitution to the Governor and it cannot be delegated elsewhere. As further explained by the Court Later in Montgomery v. Cleveland, 134 Miss. 132,98 So. lii, 114 (1923), the Governor is the sole arbiter of all matters relating to pardons: of course , he is the sole judge of the sufficiency of the facts and of the propriety of granting the pardon, and no other department ofthe government has any control over his acts or discretion in such matters. ...no authority other than his judgment and conscience can determine whether it is proper to grant or refuse the pardon. Id. at 114 (emphasis added). 9. Perhaps most closely on point to this matter is the issue raised in Pope v. Wiggins, 69

So. 2d 913 (Miss. 1954). In Pope, the Court was asked to exercise judicial review over a Governor’s decision to revoke a pardon. In holding that the Governor could revoke the pardon without any kind ofhearingto determine whether the conditions of the pardon had been met, the -Court nmdeclearthe unfettered discretion of the Executive Branch: Neither the judicial nor the legislative departments of the state are empowered to impose upon the chief executive the duty to perform judicial functions in the conduct of regular hearings in his office, even though in the exercise of his constitutional power of granting executive clemency there may be involved judgment and discretion in determining when he may be justified in revoking a suspended sentence ’for any reason deemed sufficient to the governor.’ He is the judge of the sufficiency of the
information, from whatever source, in determining whether he has a reason that he is entitled to deem sufficient for his action.

Id. at 9 (emphasis added).

4

10.

The decision of the Governor to issue pardons to these individuals is not subject to

judicial review. As set forth in the Pope case, the Governor alone is the judge of the sufficiency of the information on which the pardon is based. Any exercise of jurisdiction by this Court would violate the separation of powers required under the Constitution of the State of Mississippi. See

Mississippi Constitution, Article 1, §§ 1-2. The grant of a pardon is a specific political question in which the judicial branch must defer to the executive branch. For all of these reasons, there is no case or controversy presented in the Complaint which is within the proper jurisdiction of this Court.
C. Misjoinder and Improper Venue of Claims

11.

The instant Complaint includes causes of action against disparate defendants, which

are premised on different facts. The Complaint names the Department of Corrections (through its commissioner) and seeks relief pertaining to individuals who have not yet been released from custody. In addition, claims are made against the individual Defendants represented by undersigned counsel. These Defendants, however, are no longer within the custody of the Department of Corrections. 12. Further, the facts underlying each of the individual Defendant’s pardon are different,

including the facts surrounding the publication requirement raised by Plaintiff. The public record shows that each individual was pardoned by a separate executive order. The mere fact that these individuals were pardoned by the same Governor is not sufficient basis under the law to join those claims. Pursuant to Rule 20 of the Mississippi Rules of Civil Procedure, multiple defendants maybe joined in a single action only where the claims against them arise out of the same transaction or occurrence. In addition to misjoinder, this case is improperly venued against these Defendants, as

5

each of them suffered convictions in counties other than Hinds County, Mississippi. The relief sought herein - which Defendants deny is cognizable in any judicial forum - is nonetheless misvenued in this county; one in which none of them was convicted. WHEREFORE, premises considered, Defendants prays that this action be transferred or alternatively dismissed with prejudice at Plaintiff’s cost. Respectfully submitted this the 20th day of January, 2012. Respectfully submitted, DEFENDANTS CHARLES HOOKER, DAVID GATLIN, NATHAN KERN AND ANTHONY MCCW THOMAS M. FORTNER THEIR ATTORNEY OF COUNSEL: ERIK M. LOWREY, P.A. Attorneys at Law Thomas M. Fortner MSB #5441 Richard A. Filce MSB #100554 525 Corinne Street Hattiesburg, MS 39401 601.582.5015 601.582.5046 (fax)

L1.4

CERTIFICATE OF SERVICE 1, Thomas M. Fortner, do hereby certify that! have this date caused to be mailed, postage prepaid, a true and correct copy of the above and foregoing Motion to: The Honorable Jim Hood Special Assistant Bridgette Wiggins Attorney General for the State of Mississippi P.O. Box 220 Jackson, Mississippi 39201 Alison Oliver Kelly Alison Oliver Kelly, PLLC Attorney at Law P.O. Box 1644 Jackson, MS 39215 Honorable Tomie T. Green Circuit Court Judge First Judicial District of Hinds County, Mississippi Hinds County Courthouse Jackson, MS 39201 Christopher Epps, Commissioner Mississippi Department of Corrections 723 North President Street Jckson;MS392Oi THIS the 20" day of January, 2012.

THOMAS M. FORTNER

7

raw

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVID GATLIN, CHARLES HOOKER, ANTHONY McCRAY, AND
TCQTDU (9?tAtT. V ATUtDTkTt D(fl1DTQ(\’tT.
I ’.JL.4VIL I, IJ II IJ..I%.IFL. L JLL I IJ.JI I

F21AQ1110t " CAUSE NO. 251-12-33 CIV

JAN 23 2012
BARBARA DUNN, ClRCUfraRK

KIRBY GLENN TATE; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULE; AND JOHN OR JANE DOES 1-200

SUPPLEMENT TO SPECIAL APPEARANCE FOR PURPOSES OF MOTION TO TRANSFER AND/OR MOTION TO DISMISS

6(d). Pequest)
NOW COME Defendants Charles Hooker, David Gatlin, Nathan Kern, and Anthony McCray, through undersigned counsel, with full reservations of all their jurisdictional and other defenses, including, but not limited to their Rule 12 defenses, and appear specially to supplement their prior motion to this Honorable Court to transfer the cause for further consideration by the transferee judge or, if not transferred, to alternatively to dismiss the Complaint filed herein, for the reasons set forth more fully herein below. These Defendants hereby incorporate by reference, re-allege and re-adopt their Special Appearance For Purposes of Motion to Transfer and/or Motion to Dismiss, filed on or about Friday, January 20, 2013. These Defendants would further show as follows:’ ’Due to the urgent and necessitous nature of this proceeding, as well as the undersigned’s very recent retention as counsel for Defendants Charles Hooker, David Gatlin, Nathan Kern, and Anthony McCray, these Defendants move this Court to waive Miss. Unif. Cir. & Cty. Ct. R. 4.03’s requirement of a separate memorandum of authorities for both this supplement and the prior motion that it supplements.

1.

The First Amended Verified Complaint fails to state a claim upon which relief may

be granted. See Miss. R. Civ. P. 12(b)(6). To this end, that Complaint fails to allege that any named or unnamed Defendant has been convicted of treason or impeachment or pardoned prior to conviction. The absence of any such allegations precludes judicial review of the final actions of clemency granted by Governor Haley Barbour. 2. The "chief executive power of this State shall be vested in the Governor. . . ." Miss.

Const., Art. V, § 116 (1890). The chief executive power includes the express authority to grant reprieves and pardons. 3. Under Miss. Const., Art. V, § 124 (1890) there are certain substantive limitations on

the constitutional pardon power granted to the Governor. For example, the Governor does not have the authority to grant a pardon in cases of treason or impeachment or in any criminal or penal case before there has been a conviction. 4. The Governor’s authority to grant a reprieve or to remit a forfeiture is reviewable in

the sense that another branch of state government may question the act of the Governor in two specific instances. First, the Governor has the power to grant reprieves in cases of treason subject to the consent of the Senate. Second, the Governor also has the power to remit forfeitures in criminal or penal cases - except for cases of treason or impeachment - subject to the consent of the Senate. 5. Thus, it is only the Senate, a chamber of the Legislative Department, that has the

authority to review the acts of the Governor, and the authority of the Senate is limited to certain special cases involving reprieves for treason and the remission of forfeitures in criminal or penal

Further, pursuant to Miss. R. Civ. P. 6(d), these Defendants move for leave to have this supplement, their prior motion supplemented hereby and their motion to disqualify, all heard at the next upcoming hearing, currently scheduled for Monday, January 23, 2012. PI

(

.

cases. These are the only acts of the Governor authorized by section 124 that are reviewable by another Department of State Government. 6. Section 124 therefore does not provide for the express review by another branch of

state government of any other actions taken by the Governor related to the decisions to grant a reprieve, to remit a fine or forfeiture, or to pardon. 7. If the framers of the Mississippi Constitution had wanted to provide for the review by

another branch of state government of the Governor’s exercise of the authority to pardon, they would have expressly placed this review power in section 124. They did not. WHEREFORE, premises considered, Defendants pray that this action be transferred or alternatively dismissed with prejudice at Plaintiff’s cost. Respectfully submitted this the 21 day of January, 2012. Respectfully submitted, DEFENDANTS CHARLES HOOKER, DAVID GATLIN, NATHAN KERN AND ANTHONY MCCRAY THOMAS M. FORThER THEIR ATTORNEY OF COUNSEL: ERIK M. LOWREY, P.A. Attorneys at Law Thomas M. Fortner MSB #5441 Richard A. Filce MSB #100554 525 Corinne Street Hattiesburg, MS 39401 601.582.5015 601.582.5046 (fax) CERTIFICATE OF SERVICE I, Thomas M. Fortner, do hereby certify that he has this delivered a copy of the foregoing 3

instrument to the following, via First Class United States Mail, postage prepaid and e-mail: The Honorable Jim Hood Special Assistant Bridgette Wiggins Attorney General for the State of Mississippi P.O. Box 220 Jackson, Mississippi 39201 jhood@ago.state.ms.us bwill(ago.state.ms.us Alison Oliver Kelly Alison Oliver Kelly, PLLC Attorney at Law P.O. Box 1644 Jackson, MS 39215 kellymd I 0aol.com Honorable Tomie T. Green Circuit Court Judge First Judicial District of Hinds County, Mississippi Hinds County Courthouse 407 East Pascagoula Street Jackson, MS 39201 fashley@co.hinds.ms.us David K. Scott Mississippi Department of Corrections 723 North President Street Jackson, MS 39201 dscott(mdoc.state.ms.us y of January, 2012. THIS the 2l

7ix~~FORTNER Tc-!OMAS M.

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