Sie sind auf Seite 1von 187

...

Case: 25CI1:16-cr-00836-LER Document #: 212 Filed: 05/26/2017 Page 1 of 2

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


OF HINDS COUNTY, MISSISSIPPI

STATEOFMISSISSIPPI F I L E D PLAINTIFF

vs. MAY 26 2017 CAUSE NO.: 25CI1:16-cr-00836-LER

ROBERT SHULER SMITHZACK WALLACE. CIRCUIT CLERK DEFENDANT


B .t

DEFENDANT ROBERT SMITH'S NOTICE OF APPEAL

PLEASE TAKE NOTICE that Defendant hereby appeals to the Mississippi Supreme Court

and the Mississippi Court of Appeal from the Order on Defendant Robert Smith's Renewed Motion

to Bar Retrial on Grounds of Double Jeopardy, executed by the Circuit Court Judge on May 24,

2017, and entered with the Clerk of this Court on May 25, 2017.

RESPECTFULLY SUBMITTED, this the 25th day of May, 2017

ROBERT SMITH, Defendant

By: ~
Jim ide, MS Bar No. 6857

WAIDE & ASSOCIATES, P.A.


Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 I Telephone
(662) 842-8056 I Facsimile
waide@waidelaw.com I Email

ATTORNEYS FOR DEFENDANT


Case: 25CI1:16-cr-00836-LER Document #: 212 Filed: 05/26/2017 Page 2 of 2

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day served the above and
foregoing with the Clerk of the Court, and forwarded a copy of the same to the following:

Assistant Attorney General Robert Anderson


P. 0. Box 220
Jackson, MS 39205
rande@ago.state.rns.us

VIA EMAIL:
Marvin L. Sanders, Esq.
P. 0. Box220
Jackson, MS 39205
rnsand@ago. state.rns. us

VIA EMAIL:
Judge Larry Roberts
lro berts judge@yahoo .corn

Muriel Ellis, Clerk


Mississippi Supreme Court
450 High Street
Jackson, MS 3 9201

Kimberly Smith, Court Reporter


726 Chambord Drive
Brandon, MS 39042

SO CERTIFIED, this the 25th day ofMay, 2017.

2
Case: 25CI1:16-cr-00836-LER Document #: 211 Filed: 05/25/2017 Page 1 of 1

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

ORDER ON DEFENDANT ROBERT SMITH'S RENEWED MOTION TO BAR


RETRIAL ON GROUNDS OF DOUBLE JEOPARDY

This cause came on for hearing on May 24, 2017, on the motion of Defendant to bar retrial

on grounds of double jeopardy. Having heard the arguments of the parties, the Court finds the

motion is not well-taken. It is, therefore, denied .


..
ORDERED, this the A'f day of_...L.__~'--1----t--
Case: 25CI1:16-cr-00836-LER Document #: 208 Filed: 05/22/2017 Page 1 of 2

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

______________________________________________________________________________

DEFENDANT ROBERT SMITHS RENEWED MOTION TO BAR


RETRIAL ON GROUNDS OF DOUBLE JEOPARDY
______________________________________________________________________________

Defendant Robert Smith (hereinafter Smith) renews his motion [Docket 190] to bar any

retrial on the grounds that a retrial would violate the double jeopardy clause of U.S. Const. Amend.

5.

The Double Jeopardy Clause does protect a defendant against governmental actions

intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens

imposed by multiple prosecutions. United States v. Dinitz, 424 U.S. 600, 611 (1976).

A juror, Jackson police dispatcher Sharon Sullivan, a governmental actor, took actions

specifically intended to provoke a mistrial. This is demonstrated by the sworn interview of juror

Anna Scott, which is attached hereto as Exhibit A.

RESPECTFULLY SUBMITTED, this the 22nd day of May, 2017

ROBERT SMITH, Defendant

By: /s/ Jim Waide


Jim Waide, MS Bar No. 6857
waide@waidelaw.com
Case: 25CI1:16-cr-00836-LER Document #: 208 Filed: 05/22/2017 Page 2 of 2

WAIDE & ASSOCIATES, P.A.


Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile
waide@waidelaw.com / Email

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us

VIA EMAIL:
Marvin L. Sanders, Esq.
P. O. Box 220
Jackson, MS 39205
msand@ago.state.ms.us

VIA EMAIL:
Judge Larry Roberts
lroberts_judge@yahoo.com

SO CERTIFIED, this the 22nd day of May, 2017.

/s/ Jim Waide


JIM WAIDE

2
Case: 25CI1:16-cr-00836-LER Document #: 199 Filed: 03/10/2017 Page 1 of 2

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

ORDER DENYING WITHOUT PREJUDICE DEFENDANT ROBERT SMITH'S


MOTION FOR RELIEF BASED UPON JUROR MISCONDUCT WITH THE INTENT
TO PROVOKE MISTRIAL

This matter came on for hearing before the Court on February 24, 2017. Defendant alleges

that a retrial in this case constitutes "double jeopardy" in violation of the United States Constitution

and the Mississippi Constitution.

Defendant argued that a juror's presenting matters outside the evidence to other jurors may

have been an attempt to intentionally cause an improper conviction of Smith, or to provoke a

mistrial. Defendant argues that the juror is a "state actor" such that the juror's actions are

attributable to the State under the Fifth and Fourteenth Amendments to the United States

Constitution.

By separate Order, this Court has permitted the parties to conduct joint interviews of the

jurors.

The Court finds that at this time, there is no factual basis to support Defendant's motion, and

it is, therefore, denied without prejudice.

The Court grants leave to Defendant to reurge his motion, should he believe, after conducting

juror interviews, that he has evidence to justify his motion.


Case: 25CI1:16-cr-00836-LER Document #: 199 Filed: 03/10/2017 Page 2 of 2

so ORDERED, this the I ":y of /l)egch '2017.

APPROVED AS TO FORM:

Robert Anderson
ROBERT ANDERSON, ESQ.
Attorney for the State of Mississippi

Jim Waide
JIM WAIDE, ESQ.
Attorney for Defendant
Case: 25CI1:16-cr-00836-LER Document #: 200 Filed: 04/12/2017 Page 1 of 4

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

______________________________________________________________________________

DEFENDANT ROBERT SMITHS MOTION TO CONTINUE TRIAL


UNTIL ATTORNEY GENERAL DISPOSES OF CHARGES AGAINST
CHRISTOPHER BUTLER
______________________________________________________________________________

Defendant Robert Smith (hereinafter Smith) moves the Court to continue his trial until the

Attorney General has tried or dismissed the pending charges against Christopher Butler (hereinafter

Butler). Smith is entitled to this relief because the Sixth and Fourteenth Amendments to the

United States Constitution give Smith the right to have the jury hear relevant evidence in his

defense. The following facts support this motion:

1. All counts of the Indictment against Smith allege that Smith committed crimes in aid

of Butler. See Exhibit A, Indictment of Robert Smith.

2. Butler has personal knowledge of his lack of relationship with Smith and lack of

reason for Smith to render any unlawful aid to Butler. By reason of his knowledge of facts

indicating Smiths innocence, Butler is a crucial witness for the accused.

3. Smith subpoenaed Butler as a defense witness at Smiths trial. Because of pending

indictments, Butler invoked the Fifth Amendment, thereby depriving Smith of Butlers testimony.

4. Butlers first indictment on drug charges has been pending since April 11, 2012. See

Exhibit B. Butlers second indictment on drug charges has been pending since July 18, 2012. See

Exhibit C. Butlers third indictment on fraud charges has been pending since April 7, 2016. See
Case: 25CI1:16-cr-00836-LER Document #: 200 Filed: 04/12/2017 Page 2 of 4

Exhibit D. Butlers fourth indictment for possession of a cell phone has been pending since

August 3, 2016. See Exhibit E.

5. Smith recused himself from all Butler matters on July 18, 2016. See Exhibit F.

6. Despite this multiplicity of charges against Butler, the Attorney General has not

disposed of any of them. As long as the charges are pending, Butler, on advice of his counsel, will

invoke the Fifth Amendment and refuse to testify in the Smith trial. Butler did so at the first trial,

thereby depriving Smith of important evidence.

7. Butlers testimony would be favorable to the defense. Butler sought at the first trial,

unsuccessfully, to introduce the letters, Exhibits G and H, and Witness/Suspect Statement of

Butler, Exhibit I. Moreover, on January 18, 2017, since the first trial, Butler has written yet

another letter, indicating he has exculpatory evidence. In the letter, Butler referred to Smith as being

an innocent man, and that they are using my unfortunate situation as a stepping stone to get at

Robert Smith. Exhibit J, Letter of January 18, 2017.

8. Permitting Smith to have Butlers favorable testimony is required by the due process

clause of the Fourteenth Amendment, by the right to compulsory process for attendance of witnesses

of the Sixth Amendment, and by the right to exculpatory evidence of the Fourteenth Amendment.

9. Making a key witness unavailable by bringing charges against him and failing to

dispose of those charges, so that the witness will invoke the Fifth Amendment, is a due process

violation. A deportation of a key witness known to be favorable to the defense was held

unconstitutional in United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982). Making Butler

unavailable by failing to dispose of his charges so that he must take the Fifth Amendment is

unconstitutional, since it deprives the Defendant of exculpatory evidence.

2
Case: 25CI1:16-cr-00836-LER Document #: 200 Filed: 04/12/2017 Page 3 of 4

10. The right to call witnesses in ones own behalf [has] long been recognized as

essential to due process. Chambers v. Mississippi, 410 U.S. 284, 294 (1973).

11. An affidavit in conformity with MISS. CODE ANN. 99-15-29 is attached as Exhibit

K.

RESPECTFULLY SUBMITTED, this the 12th day of April, 2017.

ROBERT SMITH, Defendant

By: /s/ Jim Waide


Jim Waide, MS Bar No. 6857
waide@waidelaw.com

WAIDE & ASSOCIATES, P.A.


Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile
waide@waidelaw.com / Email

ATTORNEYS FOR DEFENDANT

3
Case: 25CI1:16-cr-00836-LER Document #: 200 Filed: 04/12/2017 Page 4 of 4

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us

VIA EMAIL:
Marvin L. Sanders, Esq.
P. O. Box 220
Jackson, MS 39205
msand@ago.state.ms.us

VIA EMAIL:
Judge Larry Roberts
lroberts_judge@yahoo.com

SO CERTIFIED, this the 12th day of April, 2017.

/s/ Jim Waide


JIM WAIDE

4
Case: 25CI1:16-cr-00836-LER Document #: 203 Filed: 05/10/2017 Page 1 of 8

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL


DISTRICT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

RESPONSE TO DEFENDANT SMITHS


MOTION TO CONTINUE TRIAL

COMES NOW the State of Mississippi, by and through the Office of the Mississippi

Attorney General, and files this its Response to Defendant Robert Shuler Smiths Motion to

Continue Trial Until Attorney General Disposes of Charges Against Christopher Butler (Doc.

#200) filed on April 12, 2017. In response to said motion, the State of Mississippi would

show the Court the following:

1. Smith seeks a continuance of his retrial in this case, presently set for June 12, 2017,

based on his contention that he needs Christopher Butler as a defense witness but that,

because of pending indictments, Smith will not have access to Butler. This contention is

based on conjecture and two assumptions pertaining to future events that Smith cannot

foretell, namely: (1) that Butler will invoke his Fifth Amendment privilege if called at the

retrial of this case; and, (2) that if he does not invoke his privilege, Butler will offer

testimony favorable to the defense. The first assumption rests on the notion that Butler will

take the same approach at the retrial that he did at the first trial of this case, and it is nothing

more than an assumption. The second assumption rests on the jailhouse letters which Butler
Case: 25CI1:16-cr-00836-LER Document #: 203 Filed: 05/10/2017 Page 2 of 8

has written to news outlets, a city councilman and others proclaiming to no ones surprise

that he is innocent of all charges brought against him. Smith also contents that the Attorney

General has been dilatory in moving the Butler cases to trial. In point of fact, several of the

cases are proceeding to trial and should be concluded before the retrial date in this case.

2. As to the cases brought against Butler by the Mississippi Attorney General, three

of those cases are set for trial on May 22, 2017. See Exhibit 1, E-mail from Court

Administrator to Judge Jeff Weill, Sr., regarding trial line-up for May 22, 2017.

3. The earliest filed of those cases against Butler, Cause No. 16-cr-275, was indicted

on April 7, 2016, and it involves allegations investigated by the Consumer Protection

Division of the Attorney Generals Office resulting in charges of false pretense and fraud by

mail or other means of communication. See Exhibit 2.1 This case is set for trial before Judge

Weill during the week of May 22, 2017.

4. The next case against Butler investigated by the Consumer Protection Division is

Cause No. 16-cr-461. That case was indicted on May 11, 2016, and it involves charges of

embezzlement, fraud by mail or other means of communication, and fraudulent use of

identity. See Exhibit 3. This case also is set for trial before Judge Weill during the week of

May 22, 2017.

1
This is the case, the Court may recall, in which Smith appeared at the preliminary
hearing in Judge Melvin Priesters courtroom and which generated a bar complaint against Smith
by Judge Priester.

-2-
Case: 25CI1:16-cr-00836-LER Document #: 203 Filed: 05/10/2017 Page 3 of 8

5. The next case against Butler investigated by the Consumer Protection Division is

Cause No. 16-cr-462. That case also was indicted on May 11, 2016, and it involves a single

charge of embezzlement. See Exhibit 4. This case also is set for trial before Judge Weill

during the week of May 22, 2017. Thus, all three of the Consumer Protection Division cases

are set for trial before Judge Weill on May 22, 2017, two weeks prior to the date set for

Smiths retrial in this case.

6. The final case brought against Butler by the Attorney Generals Office is Cause

No. 16-cr-680, which involves a single charge of possession of a cell phone within a

correctional facility. See Exhibit 5. Although that case was continued by Judge Weill to

May 22, 2017, it does not appear on the trial schedule provided to the attorneys by Judge

Weills court administration. See Exhibit 1. Presumably, it will be set for trial on the next

week of trials scheduled by Judge Weill in his current term of court, which is expected to

commence on June 5, 2017.

7. As to the cases brought by the Attorney Generals Office, Smiths motion is not

well-founded, because it appears that several, if not all, of those cases will be resolved prior

to the retrial date set in this case. Moreover, since Smith is charged as a habitual offender

in the three cases set for trial during the week of May 22, 2017, if he is convicted he is facing

a significant amount of jail time on each case. It would be mere conjecture to try to predict

what Butler will decide to do regarding testifying in Smiths case if Butler is convicted in

these Consumer Protection Division cases prior to the retrial in Smiths case.

-3-
Case: 25CI1:16-cr-00836-LER Document #: 203 Filed: 05/10/2017 Page 4 of 8

8. As for the two pending drug cases, Smith himself is primarily responsible for the

fact that the drug cases against Butler have not been tried. In fact, until July 18, 2016, the

Hinds County District Attorneys Office had sole control over the Butler drug cases, which

had been pending for over four years at that point, one since April 11, 2012, and one since

July 18, 2012. See Exhibit B and C to Smiths motion to continue. Moreover, even though

Smith recused himself from all Butler cases as of July 18, 2016,2 as reflected in Exhibit F to

his current motion to continue, Smith continues to maintain custody of the Digital Video

Recorder (DVR) which is a central piece of evidence in the Butler drug cases.

9. In fact, Smith continues to hold on to the DVR even after Judge Weill entered

another order on April 25, 2017, directing that he surrender the DVR to the Attorney

Generals Office so that the drug cases may be prosecuted. See Exhibit 6. Indeed, when

Judge Weill appointed the Attorney Generals Office to prosecute the Butler drug cases by

order entered on August 23, 2016, Judge Weill directed at that time that all evidence and

all materials necessary for the appointed prosecutor to proceed in this case be released

immediately to said Office of the Attorney General. See Exhibit A, attached to Exhibit 6

to this response. Although Smith did not comply with that earlier order entered by Judge

Weill, he did permit the Attorney Generals Office temporary access to the DVR back in

October 2016, pursuant to the order entered by the Special Judge assigned to this case.

2
Of course, the only cases in which Smith could have recused himself are the two drug
cases, since he was never the prosecutor of record in any of the cases brought by the Attorney
Generals Office against Christopher Butler and those cases were never assigned to his office.

-4-
Case: 25CI1:16-cr-00836-LER Document #: 203 Filed: 05/10/2017 Page 5 of 8

10. Even after Judge Weill specifically directed Smith again to turn over the DVR

to the Attorney Generals Office for use in the Butler drug cases, Smith filed a Motion to

Request Hearing and Request for Reciprocal Discovery in the Butler drug cases from which

he had recused himself on July 18, 2016. See Exhibit 7. In this motion regarding the DVR,

Smith states that he is seeking reciprocal discovery in that case, even though he is neither

the prosecutor or the defendant in the pending Butler drug cases. Smith suggests in this same

motion regarding the DVR that he has relied upon this DVR as exculpatory evidence in the

pending matter before Judge Roberts and that he has paid expenses related to an expert

related to the DVR despite the fact that Smith made absolutely no effort whatsoever to offer

any portion of the video from the DVR at the earlier trial of this case in late December 2016

and early January 2017 and he has never disclosed to the Attorney Generals Office any

alleged expert either in the first trial of this case nor supplemental discovery pertaining to

the scheduled retrial.

11. If, as he suggests in his motion defying Judge Weills order, there was anything

exculpatory to be offered from the DVR, Smith had every opportunity to offer it at the trial

of this case and did not do so. Likewise, if he had expert testimony to put before the jury in

relation to the DVR, he never disclosed that expert to the Attorney Generals Office, never

listed an expert on his witness list, and never sought to call any expert at trial.

12. Moreover, the four year delay between indictment of the two Butler drug cases

and Smiths ultimate recusal in those cases on July 18, 2016, was entirely attributable to

-5-
Case: 25CI1:16-cr-00836-LER Document #: 203 Filed: 05/10/2017 Page 6 of 8

Smiths repeated motions for continuance in those cases. The present inability of the

Attorney Generals Office to proceed to trial with the two Butler drug cases is likewise

attributable to Smiths own, disingenuous insistence that the DVR contains some

exculpatory evidence3 which was never offered in the first trial of this case and his blatant

refusal to release the DVR to the Attorney Generals Office as directed by Judge Weill. The

Court should take note that even the lawyer who represents Butler in the two drug cases,

Attorney Kevin Rundlett, did not object to the return of the DVR to the Attorney Generals

Office for purposes of proceeding with the trial on those drug cases. In short, Smith is

seeking both to be the cause of the delay in his trial in this case as well as to reap the benefit

of further delay. The Court should not permit Smith to orchestrate his own continuance in

this manner.

13. All in all, Smith has not made out a compelling argument for a continuance based

primarily upon his own dilatory tactics in the Butler drug cases and he overstates the delays

in the cases brought by the Attorney Generals Office, since many (if not all) of those cases

will have proceeded to trial prior to the retrial date set in this case. Thus, the Court should

deny Smiths motion for a continuance and should leave this case set for its present trial date

of June 12, 2017.

3
More to the point, if there is exculpatory evidence on the DVR, that evidence would be
exculpatory as to Christopher Butler on this drug charges, not with respect to the charges of
assisting and counseling a defendant and hindering prosecution which are pending against Smith
in the three-count indictment brought in this case.

-6-
Case: 25CI1:16-cr-00836-LER Document #: 203 Filed: 05/10/2017 Page 7 of 8

WHEREFORE, premises considered, the State respectfully requests that this Court

deny Smiths Motion to Continue Trial in its entirety.

THIS the 10th day of May, 2017.

Respectfully submitted,

JIM HOOD, MISSISSIPPI


ATTORNEY GENERAL
s/Robert G. Anderson
BY: Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589
Of Counsel:

Office of the Attorney General


State of Mississippi
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 576-4254
E-mail: rande@ago.state.ms.us

-7-
Case: 25CI1:16-cr-00836-LER Document #: 203 Filed: 05/10/2017 Page 8 of 8

CERTIFICATE OF SERVICE

I, Robert G. Anderson, hereby certify that I have this day filed the above and

foregoing Response with the Clerk of Court, utilizing the Courts electronic case filing

system, which caused a copy to be sent to Jim Waide, Attorney for Defendant, Robert Shuler

Smith, at his usual e-mail address of waide@waidelaw.com.

THIS the 10th day of May, 2017.

s/Robert G. Anderson
Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589

-8-
Case: 25CI1:16-cr-00836-LER Document #: 202 Filed: 05/10/2017 Page 1 of 2

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

______________________________________________________________________________

NOTICE OF HEARING
______________________________________________________________________________

PLEASE TAKE NOTICE that Defendant, Robert Shuler Smith, by and through counsel, will

bring on for hearing Defendants Motion To Continue Trial Until Attorney General Disposes of

Charges Against Christopher Butler and Motion To Exclude Testimony of Robert Earl

Henderson and To Exclude Evidence of Bribery before the Honorable Larry E. Roberts on

Wednesday, May 17, 2017, at 10:00 a.m., or as soon thereafter as counsel may be heard, in the

Circuit Court of Hinds County, Mississippi.

Respectfully submitted this the 10th day of May, 2017.

ROBERT SMITH, Defendant

By: /s/ Jim Waide


Jim Waide, MS Bar No. 6857

WAIDE & ASSOCIATES, P.A.


332 North Spring Street
Tupelo, MS 38802-3955
Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile
E-mail: waide@waidelaw.com

ATTORNEYS FOR DEFENDANT


ROBERT SCHULER SMITH
Case: 25CI1:16-cr-00836-LER Document #: 202 Filed: 05/10/2017 Page 2 of 2

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, Mississippi 39205
rande@ago.state.ms.us

Assistant Attorney General Larry Baker


P. O. Box 220
Jackson, Mississippi 39205
lbake@ago.state.ms.us

SO CERTIFIED, this the 10th day of May, 2017.

/s/ Jim Waide


JIM WAIDE

2
Case: 25CI1:16-cr-00836-LER Document #: 201 Filed: 05/09/2017 Page 1 of 3

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

______________________________________________________________________________

DEFENDANT ROBERT SMITHS MOTION TO EXCLUDE TESTIMONY OF


ROBERT EARL HENDERSON AND TO EXCLUDE EVIDENCE OF BRIBERY
______________________________________________________________________________

Defendant Robert Smith (hereinafter Smith) moves the Court to exclude testimony of

Robert Earl Henderson (hereinafter Henderson) and to exclude evidence that Smith accepted a

bribe. For grounds, Smith states the following:

1. The central allegation in both counts of the pending Indictment is the claim that

Smith assisted, or conspired to assist a criminal defendant.

2. The thrust of Hendersons testimony at the previous trial was that he paid a bribe to

Smith, in order to induce Smith to assist criminal defendants. According to Henderson, Smith

refused to assist the criminal defendants.

3. Evidence of the commission of other crimes may be permitted to prove motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Miss. R. Evid. 404(b)(2).

4. None of the permitted uses exist in this case. The evidence from Henderson does

not tend to prove any plan or intent of Smith to aid a criminal defendant. Evidence is not

relevant unless it has a tendency to make a fact more or less probable than it would be without the

evidence. Miss. R. Evid. 401(a).


Case: 25CI1:16-cr-00836-LER Document #: 201 Filed: 05/09/2017 Page 2 of 3

5. Furthermore, the evidence should be excluded under Miss. R. Evid. 403 because its

probative value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, [and] wasting time. . . .

6. Hendersons testimony is so lacking in probative value, and is so prejudicial that its

admission denies Smith of a fair trial, in violation of the Fourteenth Amendment of the United States

Constitution.

RESPECTFULLY SUBMITTED, this the 9th day of May, 2017

ROBERT SMITH, Defendant

By: /s/ Jim Waide


Jim Waide, MS Bar No. 6857
waide@waidelaw.com

WAIDE & ASSOCIATES, P.A.


Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile
waide@waidelaw.com / Email

ATTORNEYS FOR DEFENDANT

2
Case: 25CI1:16-cr-00836-LER Document #: 201 Filed: 05/09/2017 Page 3 of 3

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us

VIA EMAIL:
Marvin L. Sanders, Esq.
P. O. Box 220
Jackson, MS 39205
msand@ago.state.ms.us

VIA EMAIL:
Judge Larry Roberts
lroberts_judge@yahoo.com

SO CERTIFIED, this the 9th day of May, 2017.

/s/ Jim Waide


JIM WAIDE

3
Case: 25CI1:16-cr-00836-LER Document #: 199 Filed: 03/10/2017 Page 1 of 2

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

ORDER DENYING WITHOUT PREJUDICE DEFENDANT ROBERT SMITH'S


MOTION FOR RELIEF BASED UPON JUROR MISCONDUCT WITH THE INTENT
TO PROVOKE MISTRIAL

This matter came on for hearing before the Court on February 24, 2017. Defendant alleges

that a retrial in this case constitutes "double jeopardy" in violation of the United States Constitution

and the Mississippi Constitution.

Defendant argued that a juror's presenting matters outside the evidence to other jurors may

have been an attempt to intentionally cause an improper conviction of Smith, or to provoke a

mistrial. Defendant argues that the juror is a "state actor" such that the juror's actions are

attributable to the State under the Fifth and Fourteenth Amendments to the United States

Constitution.

By separate Order, this Court has permitted the parties to conduct joint interviews of the

jurors.

The Court finds that at this time, there is no factual basis to support Defendant's motion, and

it is, therefore, denied without prejudice.

The Court grants leave to Defendant to reurge his motion, should he believe, after conducting

juror interviews, that he has evidence to justify his motion.


Case: 25CI1:16-cr-00836-LER Document #: 199 Filed: 03/10/2017 Page 2 of 2

so ORDERED, this the I ":y of /l)egch '2017.

APPROVED AS TO FORM:

Robert Anderson
ROBERT ANDERSON, ESQ.
Attorney for the State of Mississippi

Jim Waide
JIM WAIDE, ESQ.
Attorney for Defendant
Case: 25CI1:16-cr-00836-LER Document #: 27 Filed: 10/18/2016 Page 1 of 5

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT


______________________________________________________________________________

DEFENDANT ROBERT SMITHS MOTION TO EXCLUDE


TAPES AND TRANSCRIPTS
______________________________________________________________________________

Defendant Robert Shuler Smith (hereinafter Smith) moves the Court to exclude from

evidence in this case all tapes made by Ivon Johnson and transcripts of those tapes. Alternatively,

Smith moves the Court to delete all materials from the tapes and transcripts that are not relevant.

Smith shows the Court as follows:

1. On October 14, 2016, the State furnished counsel for Defendant Smith a transcript

of a telephone conversation between confidential informant, Ivon Johnson and Smith of June 18,

2016. The transcript is attached hereto as Exhibit A. On the same date, the State furnished

counsel for Defendant a transcript of a tape recording between Johnson and Smith of May 9, 2016.

The transcript is attached hereto as Exhibit B.

2. Neither of the above transcripts contain any evidence relevant to the present

indictment, nor do they contain any evidence that incriminates Smith or McBride on any criminal

offense. Under Mississippi Rule of Evidence 4.02, only relevant evidence is admissible.

Alternatively, if the Court finds that the tapes and transcripts contain relevant evidence, then Smith

requests that the Court specify what portion of the transcripts are relevant. All other contents of the

tape and transcripts should be excluded. In any event, the Court should exclude all the profanity and

use of the influential term n***** used on the tapes. Such profanity and use of the influential term
Case: 25CI1:16-cr-00836-LER Document #: 27 Filed: 10/18/2016 Page 2 of 5

n***** is irrelevant. The prejudicial effect of such language far outweighs the probative value, such

that it is inadmissible under Mississippi Rule of Evidence 403.

3. These tapes were unlawfully obtained, since they were obtained after an agreement

between Smiths then-attorney and the Assistant United States Attorney that Smiths Attorney would

be notified of any further investigation of Smith. See Letter from Tom Fortner, attached hereto as

Exhibit C. The tapes are also inadmissible under Page v. State, 495 So.2d 436 (Miss. 1986), and

are in violation of the Mississippi Constitutional right to counsel. Furthermore, the tapes were

obtained in violation of Mississippi Rule of Professional Conduct 4.2, which provides, [i]n

representing a client, a lawyer shall not communicate about the subject of the representation with a

party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the

consent of the other lawyer . . . to do so. In this case, either the Mississippi Attorney General

(hereinafter Attorney General) or the Federal Bureau of Investigation (hereinafter FBI) caused

Johnson to communicate with Smith in violation of Miss. R. Prof. Conduct 4.2. Any acts done by

the FBI are attributable to the State, since the investigation was a joint investigation of the Attorney

General and the United States. See, Press Release from Mississippi Attorney General Hood,

attached hereto as Exhibit D, and Bar Complaint of the Attorney General stating that this office,

in conjunction with the Federal Bureau of Investigation, charged Mr. Smith . . . , attached as

Exhibit E.

4. Any testimony given by Johnson should be excluded as a sanction for the Attorney

Generals secreting Johnson from Smith. Refusing to disclose Johnsons location violates both the

Uniform Rule of Circuit and County Practice 9.04, which requires a defendant to provide, the

names and addresses of all witnesses. The failure to disclose Johnsons location also violates

2
Case: 25CI1:16-cr-00836-LER Document #: 27 Filed: 10/18/2016 Page 3 of 5

Smiths due process rights under Brady v. Maryland, 373 U.S. 83 (1963) to have exculpatory

evidence. The failure to provide Johnsons location violates the Mississippi Constitution,

Amendment Six, which gives Smith the right to compulsory process to obtain witnesses. Refusing

access to Johnson violates Mississippi Rule of Professional Conduct 3.4, which provides, a lawyer

shall not . . . unlawfully obstruct another partys access to evidence. . . .

RESPECTFULLY SUBMITTED, this the 18th day of October, 2016.

ROBERT SMITH, Defendant

By: /s/ Jim Waide


Jim Waide, MS Bar No. 6857
waide@waidelaw.com

WAIDE & ASSOCIATES, P.A.


332 North Spring Street
Tupelo, MS 38802-3955
Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile

ATTORNEYS FOR DEFENDANT

3
Case: 25CI1:16-cr-00836-LER Document #: 27 Filed: 10/18/2016 Page 4 of 5

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us

Assistant Attorney General Larry Baker


P. O. Box 220
Jackson, MS 39205
lbake@ago.state.ms.us

VIA EMAIL:
Assistant Attorney General Stanley Alexander
P. O. Box 220
Jackson, MS 39205
salexander@ago.state.ms.us

VIA EMAIL:
Judge Larry Roberts
lroberts_judge@yahoo.com

VIA EMAIL:
Damon R. Stevenson, Esq. (Attorney for Christopher Butler)
Stevenson Legal Group, PLLC
1010 N. West Street
Jackson, MS 39202-2568
damon.steven@gmail.com

VIA EMAIL:
Dale Danks, Jr., Esq. (Attorney for Jamie McBride)
P. O. Box 1759
Jackson, MS 39215
ddanks@dmc-law.com

4
Case: 25CI1:16-cr-00836-LER Document #: 27 Filed: 10/18/2016 Page 5 of 5

VIA EMAIL:
Dennis Horn, Esq.
Horn & Payne
P. O. Box 2754
Madison, MS 39130
hornpayne@gmail.com

SO CERTIFIED, this the 18th day of October, 2016.

/s/ Jim Waide


JIM WAIDE

5
Case: 25CI1:16-cr-00836-LER Document #: 30 Filed: 10/20/2016 Page 1 of 4

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

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

ROBERT SHULER SMITH DEFENDANT

RESPONSE TO DEFENDANT ROBERT SHULER SMITHS


MOTION TO EXCLUDE TAPES AND TRANSCRIPTS

COMES NOW, the State of Mississippi, by and through the Office of the

Attorney General, and files this its Response to Defendant Robert Shuler

Smiths Motion to Exclude Tapes and Transcripts (Dkt. #27). In response to said

motion, the State of Mississippi would show the Court the following:

1. First and foremost, this present motion is simply an attempt to try this

case in the public eye, in direct violation of URCCC 9.01. Rule 9.01 prohibits

attorneys from disseminating any matter concerning the identity, testimony or

credibility of prospective witnesses or which comments on the merits of the case

or the evidence in the case. In this motion, defense counsel comments at length

about the content of these tapes, and even goes so far as to suggest that the

tapes do not contain any evidence relevant to the present indictment, nor do

they contain any evidence that incriminates Smith or McBride on any criminal

offense. A more direct comment on the merits of this case could scarcely be

made. Such a comment is in direct violation of the clear language of URCCC


Case: 25CI1:16-cr-00836-LER Document #: 30 Filed: 10/20/2016 Page 2 of 4

9.01. Defense counsel should, at the very least, be admonished by the Court, or

sanctioned for his blatant violation of the pretrial publicity rules.

2. The courtroom is the proper place to try this case, not the public forum

in the guise of a pretrial motion. Counsel was well aware that these transcripts,

once attached to his motion, would appear in the media. In fact, Smith even

served a copy of his motion to exclude on Dennis Horn, counsel for the Clarion

Ledger, although Mr. Horn has not entered an appearance in this criminal case.

Of course, it is no surprise whatsoever that extended excerpts from the

transcripts appeared in the October 18, 2016 edition of the Clarion Ledger

newspaper. See Exhibit A. Defense counsel, Jim Waide, is quoted as having

told The Clarion Ledger that the Johnson transcripts are not relevant to the

criminal charges against Smith. Id.

3. Defense counsel also launches into relevance and unfair prejudice

arguments about these transcripts, which have not yet been tendered in

evidence anywhere at this point. This is but another obvious attempt to try his

case to the media instead of in the courtroom.

4. Smiths suggestion that the Court should delete all materials from that

tapes and transcripts that are not relevant is premature and it is completely

misplaced in a pretrial motion. Until such time as this case comes on for trial

and the State tenders any portion of these tapes in evidence, the issue is not ripe

-2-
Case: 25CI1:16-cr-00836-LER Document #: 30 Filed: 10/20/2016 Page 3 of 4

for any relevance ruling by the Court. At that time, it will be defense counsels

obligation to convince the Court what portions of the tapes and transcripts are

relevant. The Court is under no obligation to scan these tapes and transcripts

to delete all materials . . . that are not relevant. That is what lawyers are

hired to do.

5. For the State to say anything further about the arguments raised in

Smiths Motion to Exclude is simply inappropriate under Rule 9.01. The motion

has no merit and it should be denied in its entirety.

WHEREFORE, premises considered, the State respectfully requests that

this Court deny Smiths motion to exclude tapes and transcripts in its entirety.

THIS the 20 th day of October, 2016.

Respectfully submitted,

JIM HOOD, MISSISSIPPI


ATTORNEY GENERAL
s/Robert G. Anderson
BY: Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589
Larry G. Baker
Special Assistant Attorney General
MS Bar No. 100569

Of Counsel:

Office of the Attorney General


State of Mississippi
P.O. Box 220
Jackson, MS 39205

-3-
Case: 25CI1:16-cr-00836-LER Document #: 30 Filed: 10/20/2016 Page 4 of 4

CERTIFICATE OF SERVICE

I, Robert G. Anderson, hereby certify that I have this day filed the above

and foregoing Response with the Clerk of Court, utilizing the Courts electronic

case filing system, which caused a copy to be sent to Jim Waide, Attorney for

Defendant, Robert Shuler Smith, at his usual e-mail address of

waide@waidelaw.com.

THIS the 20 th day of October, 2016.

s/ Robert G. Anderson
Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589

-4-
Case: 25CI1:16-cr-00836-LER Document #: 27-3 Filed: 10/18/2016 Page 1 of 1
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 1 of 10

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. CAUSE NO. 16-836

ROBERT SCHULER SMITH and


JAMIE K. MCBRIDE DEFENDANTS

ROBERT SCHULER SMITHS


AMENDED MOTION TO QUASH AND DISMISS THE INDICTMENT

Robert Schuler Smith (hereinafter Smith) hereby files this Amended Motion to Quash and

Dismiss the Indictment. This amended motion is filed in order to add paragraph 5(K), and to make

modifications in paragraphs 5(A) and 5(J). The remainder of the motion is identical to Smiths

Motion to Quash and Dismiss the Indictment, filed on October 10, 2016 [Docket 15].

1. Counts One and Two fail to charge any specific acts which constitute rendering

criminal assistance as defined by Miss. Code Ann. 97-9-103. According to Miss. Code Ann.

97-9-103:

[A] person renders criminal assistance to another if he knowingly:

(a) Harbors or conceals the other person;


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

None of the above particulars are charged in Counts One and Two of the Indictment. An indictment

which fails to allege the particulars of the underlying crime should be quashed. Quang Thanh
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 2 of 10

Tran v. State, 962 So.2d 1237, 1242 (Miss. 2007).

2. Counts One and Two allege that ROBERT SHULER SMITH and JAMIE K.

McBride . . . did . . . conspire with Ivon Johnson and with others . . . to commit the crime of

Hindering Prosecution. . . . There is no charge that Smith and McBride conspired with each other,

nor does the indictment identify any person other than Ivon Johnson with whom Smith conspired.

[W[here one of two persons who conspire to do an illegal act is an officer . . . is an informer for

the state, . . . such other person cannot be convicted of conspiracy. Moore v. State, 290 So.2d 603,

605 (Miss. 1974).

3. Count Three of the Indictment charges a violation of Miss. Code Ann. 97-11-3.

Miss. Code Ann. 97-11-3 reads:

If the attorney general or any district attorney shall, in any manner, consult, advise,
counsel, or defend, within this state, a person charged with a crime or misdemeanor
or the breach of a penal statute, he shall, on conviction, be fined in a sum not
exceeding five hundred dollars, be removed from office, and rendered incapable
thereafter of filling any office of profit or honor in this state.

This statute is unconstitutional. [T]he Government violates [the Fourteenth Amendment] by taking

away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary

people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.

Johnson v. United States, ___ U.S. ____, 135 S. Ct. 2551, 2556 (2015).

Prosecuting a District Attorney who, in any manner, consults, advises, or counsels a

criminal defendant would chill [a district attorneys] interactions with the people [he] serve[s] and

thus damage [his] ability to effectively to perform [his] duties. McDonnell v. United States, ___

U.S. ___, 136 S.Ct. 2355, 2372 (2016).

For example, Miss. Code Ann. 97-11-3 would chill a district attorneys seeking counsel

2
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 3 of 10

for a criminal defendant, even though Miss. R. Prof. Conduct 3.8(b) makes it the duty of the District

Attorney to make reasonable efforts to assure that the accused has been advised of the right to, and

the procedure for obtaining, counsel. . . .

Furthermore, Miss. Code Ann. 97-11-3 would criminalize Smiths providing exculpatory

evidence to defense counsel, such as the Mississippi Bureau of Narcotics (hereinafter MBN)

refusal to produce to the District Attorney a copy of the video tape of the MBNs search of the Butler

home. Smiths failure to give this exculpatory information to defense counsel would violate Miss.

R. Prof. Conduct 3.8(d) which requires the District Attorney to make timely disclosure to the

defense of all evidence or information known to the prosecutor that tends to negate the guilt of the

accused or mitigates the offense,. . . . Furthermore, failure to provide the defendant with the

exculpatory information would violate Uniform Circuit and County Court Rule 9.04(A)(6) which

requires the District Attorney to provide any exculpatory material concerning the defendant.

Indeed, Miss. Code Ann. 97-11-3 broadly makes it a crime to in any manner defend . .

any person charged with a crime. This statute is so overly broad that it would criminalize

statements made in open court. For example, in a hearing held on January 22, 2015, in open court,

Smith explained why he believed drugs found in the Butler home had been planted. See, Transcript

of January 22, 2015 hearing before Judge Weill, Exhibit A. On March 3, 2016, Smith explained

that he agreed with defense counsel that under Williams v. State, 184 So.3d 908 (Miss. 2014) the

Attorney General was required to consult with him before proceeding with new charges against

Butler. See, Transcript of March 3, 2016 hearing before Judge Priester, Exhibit B.

In fact, Smiths bringing Williams v. State, supra, to the Courts attention was required by

Miss. Rule of Professional Conduct 3.3(a)(3) which makes it unethical to:

3
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 4 of 10

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel;

By criminalizing the acts of consult[ing], advis[ing], counsel[ing] or defend[ing] a

criminal defendant in any manner, Miss. Code Ann. 97-11-3 outlaws the ordinary duties of the

district attorney. A district attorneys ordinary duty is not to win a case, but that justice shall be

done. Berger v . United States, 295 U.S. 78, 88 (1935). It is the ordinary duty of the district

attorney to advise and consult with criminal defendants, such as those criminal defendants who

provide evidence for the State, or those criminal defendants who are possible witnesses for the state,

such as the criminal defendant Butler.

This elementary principle that a prosecutors advising criminal defendants may be a part

of his job is illustrated in this very case, where Mississippi Attorneys General and the Federal

Bureau of Investigation have advised criminal defendant Ivon Johnson to secretly tape record Smith

in order for Johnson to receive a lenient sentence for the bribery scheme in which Johnson was

involved. That Johnson was advised either by an FBI agent or by an assistant attorney general is

proved by the fact that Johnson has pled guilty, without having counsel and without any sentence

being imposed. To prosecute Smith without prosecuting the FBI or Attorney General is to prosecute

with an unequal hand, thus violating constitutional principles that were settled over a century ago.

Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

Of course, the indictment in this case does not charge Smith with either seeking to obtain

counsel for Butler, nor with making statements defending Butler in open court. Instead, Count III

charges Smith with the acts of meeting with Christopher Butler at the Hinds County Jail outside the

presence of Butlers attorney, and later advising Butlers attorney in various ways to attack the

4
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 5 of 10

States pending case against Butler, and by other means seeking the release of Butler from jail . . .

. But, Johnson v. State, 135 S.Ct. 2551 (2014) precludes a case-by-case determination as to whether

a specific act might constitute in any manner defend[ing] a person charged with a crime. A

statute is facially unconstitutional when it is so broad that it outlaws activities of a district attorney

that would clearly be within the scope of his lawful duties. Supreme Court holdings squarely

contradict the theory that a vague provision is constitutional merely because there is some conduct

that clearly falls within the provisions grasp. Johnson, 135 S.Ct. at 2561.

5. The accused is entitled to have a Grand Jury directed by a prosecutor whose advice

is restricted to matter of law, sufficiency of service and proper dispatch of the public business.

Neither the Court nor [a prosecutor] can say to the grand jury that the facts, as shown by the

evidence, are sufficient to authorize them to find a bill. Blau v. State, 34 So. 153, 155 (Miss. 1903).

Grand Juries may [not] select targets of investigation out of malice or an intent to harass. U. S.

v. R. Enterprises, Inc., 111 S.Ct. 722, 727 (1991). The duties and powers bestowed upon the

District Attorney by law, vest that official with substantial control over the Grand Jury proceedings,

requiring the exercise of completely impartial judgment and discretion. People v. DiFalco, 44

N.Y.2d 482, 487 (New York 1978) (Emphasis added). In this case, the returning of this indictment

and the prosecution of this case demonstrate that the Attorney General lacked the completely

impartial judgment required of a prosecutor. The Attorney Generals lack of completely impartial

judgment is demonstrated by the following facts:

A. The Mississippi Attorney General arrested Smith in order to


frustrate Smiths investigation of whether Assistant Attorneys
General Patrick Beasley and Shaun Yurtkuran had threatened
Butler, and in order to retaliate against Smith for his efforts to
subpoena Beasley, Yurtkuran, and Butler. The Attorney

5
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 6 of 10

Generals retaliation is a criminal act. Miss. Code Ann. 97-


9-127;

B. The Mississippi Attorney General refuses to disclose the


location of crucial witnesses, Christopher Butler and Ivon
Johnson, and refuses to produce the tapes recordings and
transcripts of the tape recordings made by Ivon Johnson,
while knowing that this evidence is necessary for the hearing
set in this Court on October 25, 2016;

C. The Mississippi Attorney General refuses to provide any


substantial discovery in this case, even though defense
counsel has had discovery requests pending since the time the
case was pending in County Court;

D. The Mississippi Attorney General refuses to return Smiths


personal cell phone and government-issued cell phone. These
cell phones were seized without a warrant. A warrant was
obtained only after the seizure, and that warrant lacked
probable cause. The cell phones contain nothing of any
relevance to this criminal case, and are retained solely to
invade Smiths privacy. This seizure and refusal to return the
cell phones violates Riley v. California, ___ U.S. ___, 134
S.Ct. 2473, 2490 (2014);

E. The Mississippi Attorney General has caused the unlawful


sealing of public records that provide exculpatory evidence to
Smith. Specifically, in Cause No. 16-120, the Mississippi
Attorney General filed a factually baseless motion alleging
that Smith, because of personal relationships, had failed to
pursue prosecutions of approximately 33 persons, including
Darnell Turner and Tommy White. When it was learned
these scandalous charges lacked evidentiary support in a
hearing held before Judge Weill on March 22, 2016, the
Attorney General, acting through Assistant Attorney General
Stanley Alexander, successfully requested that Judge Weill
seal the hearing. The hearing was sealed over Smiths
objection and in direct violation of the Mississippi Supreme
Courts direction in Gannett River State Publishing Co. v.
Hand, 571 So.2d 941, 945 (Miss. 1990) as to procedures that
were to be used in sealing public records;

6
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 7 of 10

F. The Mississippi Attorney General has failed to record and


provide Defendants Smith and McBride a copy of a transcript
of the proceedings before the Grand Jury as is expressly
required by Miss. Code Ann. 13-7-25;

G. An agent of the State (Circuit Judge Jeff Weill) has


intentionally violated Smiths due process rights by stripping
him of significant duties of his office without due process.
See, Judge Weills Administrative Order of Immediate
Temporary Disqualification of the Hinds County District
Attorney, Exhibit C. Knowing that this order violated
Smiths due process rights, the Attorney General,
nevertheless, defended Judge Weills lawless actions before
the Mississippi Supreme Court. The Mississippi Supreme
Court has already held that Judge Weills Order violated
Smiths due process rights. See Ruling of Mississippi
Supreme Court, Exhibit D. Judge Weills Order had the
effect of disrupting the duties of Smiths office and
prohibiting him from carrying out legitimate investigations.
The Attorney General d e fe nd ed Judge Weills
unconstitutional acts before the Mississippi Supreme Court
when he knew Judge Weills Order violated Smiths
constitutional rights;

H. The Mississippi Attorney General has filed a baseless motion


to disqualify Smiths counsel of choice in violation of Smiths
United States Constitution, Amendment Sixs right to
counsel. United States v. Gonzalez- Lopez, 548 U.S. 140, 144
(2008) (An element of [the Sixth Amendment] right to
counsel is the right of a defendant to choose who will
represent him.) To deprive counsel of his choice is structural
error requiring automatic reversal of a conviction. Id. at
148;

I. The Mississippi Attorney General reached an agreement with


the FBI for Ivon Johnson to wear a wire secretly to record
Smith, even though Smith had an agreement between his then
attorney and an Assistant U. S. Attorney that any contact
made with Smith by government agents would be done only
through counsel. The secret recording violated this agreement
and violated Smiths Sixth Amendment and Mississippi
Constitutional right to counsel; and

7
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 8 of 10

J. A State agent, Judge Weill continues to disobey this Courts


Order, Exhibit E, which directed that all files are declared
unsealed, including the ordering of transcripts. Judge Weill
has intentionally frustrated Smiths obtaining the hearing
transcript in Cause No. 16-120 by claiming in an email to the
Court that he needs clarification as to whether the hearing
transcript should be provided, or should be provided only if
certain parts are redacted.

K. The Mississippi Attorney General indicted Smiths Assistant


District Attorney Jamie McBride in order to retaliate against
McBride for giving the affidavit, attached hereto as Exhibit
F. Retaliation is a Class 2 felony. Miss. Code Ann. 97-
9-127.

6. Smith joins in the Motion to Quash Indictment [Docket 7] in Cause No. 16-CR-837

filed by Co-Defendant Jamie McBride. A copy of this Motion is attached as Exhibit G.

CONCLUSION

For the reasons stated herein, Smith prays that the Indictment filed against him be dismissed

in its entirety.

Respectfully submitted, this the 11th day of October, 2016

ROBERT SHULER SMITH, Defendant

BY: /s/ Jim Waide


JIM WAIDE
MS Bar No. 6857

JIM WAIDE
WAIDE & ASSOCIATES
POST OFFICE BOX 1357
TUPELO, MISSISSIPPI 38802
TELEPHONE: 662.842.7324
FACSIMILE: 662.842.8056
EMAIL: waide@waidelaw.com

8
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 9 of 10

ATTORNEY FOR DEFENDANT


CERTIFICATE OF SERVICE

I, Jim Waide, attorney for Robert Shuler Smith, do hereby certify that I have this day emailed

and mailed, by United States mail, postage prepaid, a true and correct copy of the above and

foregoing, Co-Defendant, Robert Shuler Smiths Amended Motion to Quash and Dismiss the

Indictment to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us

Assistant Attorney General Larry Baker


P. O. Box 220
Jackson, MS 39205
lbake@ago.state.ms.us

VIA EMAIL:
Assistant Attorney General Stanley Alexander
P. O. Box 220
Jackson, MS 39205
salexander@ago.state.ms.us

VIA EMAIL:
Judge Larry Roberts
lroberts_judge@yahoo.com

VIA EMAIL:
Damon R. Stevenson, Esq. (Attorney for Christopher Butler)
Stevenson Legal Group, PLLC
1010 N. West Street
Jackson, MS 39202-2568
damon.steven@gmail.com

VIA EMAIL:
Dale Danks, Jr., Esq. (Attorney for Jamie McBride)
P. O. Box 1759
Jackson, MS 39215
ddanks@dmc-law.com

9
Case: 25CI1:16-cr-00836-LER Document #: 16 Filed: 10/11/2016 Page 10 of 10

VIA EMAIL:
Kevin Rundlett, Esq. (Attorney for Christopher Butler)
Rundlett Law Firm
P. O. Box 198
Clinton, MS 39060
kevin@rundlettlawfirm.com

VIA EMAIL:
Sanford Knott, Esq. (Attorney for Christopher Butler)
Sanford Knott & Associates
P. O. Box 1208
Jackson, MS 39215
knottlaw@bellsouth.net

VIA EMAIL:
Dennis Horn, Esq.
Horn & Payne
P. O. Box 2754
Madison, MS 39130
hornpayne@gmail.com

VIA EMAIL:
Judge Jeff Weill
weillslawclerk@co.hinds.ms.us

This the 11th day of October, 2016.

/s/ Jim Waide


JIM WAIDE

10
Case: 25CI1:16-cr-00837-LER Document #: 1 Filed: 09/07/2016 Page 1 of 3
Case: 25CI1:16-cr-00837-LER Document #: 1 Filed: 09/07/2016 Page 2 of 3
Case: 25CI1:16-cr-00837-LER Document #: 1 Filed: 09/07/2016 Page 3 of 3
Case: 25CO1:16-cr-00624 Document #: 36 Filed: 08/19/2016 Page 1 of 5

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. CRIMINAL ACTION NO.: 16-624

ROBERT SHULER SMITH DEFENDANT

______________________________________________________________________________

DEFENDANTS RESPONSE TO STATES MOTION TO CONSOLIDATE


AND MOTION TO STAY PROCEEDINGS [23] AND
TO STATES SUPPLEMENTAL MOTION TO STAY PROCEEDINGS[25]
______________________________________________________________________________

Defendant Robert Shuler Smith (hereinafter Smith) opposes the States Motion to

Consolidate and Motion to Stay Proceedings [Docket 23] and the States Supplemental Motion to

Stay Proceedings [Docket 25]for the following reasons:

1. A stay would permit the Mississippi Attorney General to continue to intimidate a key

witness, Christopher Butler. See letter from Butler addressed to WLBT, Exhibit A, and letter from

Butler with addressee redacted, Exhibit B.

2. The Mississippi Attorney General cannot obtain a valid indictment because he is

prejudiced against Smith. The accused is entitled to have a Grand Jury directed by a prosecutor

whose advice is restricted to matter of law, sufficiency of service and proper dispatch of the public

business. Neither the court nor [a prosecutor] can say to the grand jury that the facts, as shown by

the evidence, are sufficient to authorize them to find a bill. Blau v . State 34 So. 153, 155 (Miss.

1903). The duties and powers bestowed upon the District Attorney by law, vest that official with

substantial control of grand jury proceedings, requiring the exercise of completely impartial

judgment and discretion. People v. DiFalco, 44 N.Y.2d 482, 487 (New York, 1978) (emphasis

added). The Mississippi Attorney General arrested Smith and seeks to indict Smith not because of
Case: 25CO1:16-cr-00624 Document #: 36 Filed: 08/19/2016 Page 2 of 5

any good-faith belief Smith has committed any crime, but because two Assistant Attorney Generals

feared that they were about to be indicted. See, Affidavit of Jamie McBride, Exhibit C.

3. The State should be allowed only a reasonable time to obtain a valid indictment, and

Smith requests a speedy trial, to which he is entitled by the Sixth Amendment to the United States

Constitution.

4. The States request to consolidate all cases so as to assign them to Circuit Judge

Larry Roberts, and away from County Court Judge Bell, conflicts with direction from the Mississippi

Supreme Court. The Mississippi Supreme Court assigned the criminal case to Hinds County Court

Judge James Bell, see Order, Exhibit D, and the other cases involving Smith to Circuit Judge Larry

Roberts. See Order, Exhibit E. The Mississippi Attorney General then filed under seal a Motion

for Clarification Regarding Appointment of Special Judges in the Mississippi Supreme Court. See,

Exhibit F.1 The Motion asks the Mississippi Supreme Court to reassign this criminal case to Judge

Roberts. The Mississippi Supreme Court declined to follow the Attorney Generals request, and

adhered to its decision to assign the criminal case to County Court Judge Bell and all other cases to

Circuit Judge Larry Roberts. See Exhibits G and H.2 Where an appellate court has already

decided a specific issues in a case on a prior appeal, the trial court is in error where, on remand, it

refuses to follow the appellate courts opinion and directions. Nelson v. Bonner, 13 So.3d 880, 883

(Miss. 2009). Further, to ignore the Mississippi Supreme Courts decision and to remove Judge Bell

1
This Motion was also entered in a different Supreme Court Case - 2016-AP-01079.
Because this Motion was filed under seal, Exhibit F is not filed electronically, but will be mailed to the
clerk for filing. Defendant does not believe it is proper to file Exhibit F under seal because the courts of
this country recognize a general right to inspect and copy public records and documents, including judicial
records and documents. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).

2
Exhibit G was only entered in 2016-AP-01079.

2
Case: 25CO1:16-cr-00624 Document #: 36 Filed: 08/19/2016 Page 3 of 5

from the criminal case would mean that the Mississippi Attorney General is choosing the judge

whom he wants. This gives an appearance of impropriety. See, White v. Malone Properties, Inc.,

494 So.2d 576, 582 (Miss. 1986) (This state has a legitimate interest in discouraging forum

shopping. . .); Mississippi Commission on Judicial Performance v. Boland, 975 So.2d 882, 894

(Miss. 2008) (A judge must avoid all impropriety and appearance of impropriety.)

ACCORDINGLY, Smith requests that rather than stay the proceedings, this Court:

A. Set this case for a speedy trial;

B. Allow thirty (30) additional days for the State to


obtain a valid indictment, with this Court dismissing
the case if a valid indictment is not obtained within
that time; and

C. Order the Mississippi Attorney General to respond


immediately to the Smiths request for discovery, with
this response to specifically include the tape recording
made by confidential informant Ivon Johnson, and to
include all notes, materials, and documents
evidencing the Attorney Generals and law
enforcements contacts with Christopher Butler, and
to include all recorded statements made by Smith and
by his attorney Jim Waide.

Respectfully submitted this the 19th day of August, 2016.

ROBERT SMITH, Defendant

By: /s/ Jim Waide


Jim Waide, MS Bar No. 6857
waide@waidelaw.com

3
Case: 25CO1:16-cr-00624 Document #: 36 Filed: 08/19/2016 Page 4 of 5

WAIDE & ASSOCIATES, P.A.


332 North Spring Street
Tupelo, MS 38802-3955
Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile

ATTORNEYS FOR ROBERT SMITH

4
Case: 25CO1:16-cr-00624 Document #: 36 Filed: 08/19/2016 Page 5 of 5

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us

Assistant Attorney General Larry Baker


P. O. Box 220
Jackson, MS 39205
lbake@ago.state.ms.us

VIA EMAIL:
Deenie L. Glass, Paralegal and
Court Administrator to Judge James D. Bell
BELL & ASSOCIATES, P.A.
318 S. State Street
Jackson, MS 39201
dglass@judgebell.com

VIA EMAIL:
Damon R. Stevenson, Esq.
Stevenson Legal Group, PLLC
1010 N. West Street
Jackson, MS 39202-2568
damon.steven@gmail.com
(Attorney for Christopher Butler)

SO CERTIFIED, this the 19th day of August, 2016.

/s/ Jim Waide


JIM WAIDE

5
Case: 25CO1:16-cr-00624 Document #: 36-3 Filed: 08/19/2016 Page 1 of 2
Case: 25CO1:16-cr-00624 Document #: 36-3 Filed: 08/19/2016 Page 2 of 2
Serial: 207591
FILED
IN THE SUPREME COURT OF MISSISSIPPI ~IH, 18 2016
OfFICE OF THE CLERK
No. 2016-M-01013 SUPREME COURT
COURT OF APPEALS

IN RE: ROBERT SHULER SMITH Petitioner

ORDER

Now before the Court, en bane, comes the Mississippi Attorney General's Motion for

Extraordinary Writ and for Appointment of Special Judge and for Supplemental Relief. No

response has been filed. After due consideration, the Court finds and orders as follows:

IT IS HEREBY ORDERED that the State's motion to file the aforementioned motion

under seal is dismissed as moot, as the motion was physically filed under seal and, pursuant

to M.R.A.P. 48A(c), it shall remain sealed until unsealed by order of this Court.

IT IS FURTHER ORDERED that the State's motion for an extraordinary writ

disqualifying the Hinds County District Attorney, Robert Shuler Smith, and his Assistant

District Attorneys from attending the grand jury in Hinds County is dismissed without

prejudice to be presented to Special Circuit Judge Larry E. Roberts in the Hinds County

Circuit Court.

IT IS FURTHER ORDERED that the State's motion to hold in abeyance any ruling

on "Robert Smith's Motion for Writs of Prohibition and Mandamus with Respect to Order

Stripping Him of His Duties as District Attorney" is denied.

IT IS FURTHER ORDERED that the State's motion for the appointment of a Special

Judge is dismissed as moot.


IT IS FURTHER ORDERED thatthe State's motion to disqualify Attorney Jim Waide

as counsel for District Attorney Smith is dismissed without prejudice to be filed in the trial

court.

SO ORDERED, this the I8 1h day of August, 2016.

WILLIAM L. WALLER, JR.,


CHIEF JUSTICE
FOR THE COURT

AGREE: ALL JUSTICES.

2
Case: 25CO1:16-cr-00624 Document #: 31 Filed: 08/16/2016 Page 1 of 5

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. CRIMINAL ACTION NO.: 16-624

ROBERT SHULER SMITH DEFENDANT

______________________________________________________________________________

DEFENDANTS MOTION TO REQUIRE ATTORNEY GENERAL TO PRODUCE


TRANSCRIPT OF SECRETLY RECORDED TAPE RECORDINGS OF
CONVERSATIONS BETWEEN IVON JOHNSON AND ROBERT SMITH;
TO PRODUCE THE PERSON OF IVON JOHNSON;
AND TO PRODUCE THE PERSON OF CHRISTOPHER BUTLER
______________________________________________________________________________

Defendant Robert Shuler Smith (hereinafter Smith) moves the Court to require the

Mississippi Attorney General to produce at the hearing set for Thursday, August 18, 2016, at 9:30

a.m., the following:

A. The transcripts of the tape recordings, recorded by the States


confidential informant described on page 4 of the States Motion to
Disqualify Defense Counsel [Docket 26];

B. The person of Ivon Johnson, who is the confidential informant


referenced in the States Motion to Disqualify Defense Counsel; and

C. The person of Christopher Butler, who alleges that he has been


threatened in order to induce false testimony.

In support of this Motion, Smith says:

1. The Mississippi Attorney General seeks to disqualify Attorney Jim Waide from

representing Robert Smith on the grounds of Waides knowledge concerning Smiths attempting to

obtain Waide to represent Christopher Butler. The States Motion to Disqualify Defense Counsel

is supported by a conversation which Ivon Johnson secretly recorded.


Case: 25CO1:16-cr-00624 Document #: 31 Filed: 08/16/2016 Page 2 of 5

2. Johnson and Butler have relevant knowledge about the same matters about which the

State seeks to obtain testimony from Waide. If the lawyer's intended testimony . . . can be obtained

from other sources, the lawyer is not a necessary witness, and Rule 3.7(a) does not operate to

disqualify the lawyer as trial counsel. Douglas R. Richmond, Lawyers As Witnesses, 36 N.M. L.

Rev. 47, 51-52 (2006) (footnotes omitted).

3. Besides being relevant on the Motion to Disqualify Defense Counsel, Butlers

testimony is also relevant on the States Motion to Stay Proceedings. Specifically, Butler alleges he

has been threatened to give false statements against Smith. See letter written by Butler, Exhibit A.

If such threats have occurred, there may be continuing pressure on Butler to testify falsely. In the

face of such pressure to give false testimony, a stay is not appropriate.

4. Butler was housed at the Rankin County Jail. Nevertheless, public records indicate

that Butler has been transferred to an unknown agency. See Current Status Report of Christopher

Butler, Exhibit B.

5. Smith cannot produce Confidential Information Johnson because he is unable to

locate Johnson. Johnson was recently indicted. See Indictment of Ivon Johnson, Exhibit C.

Johnson entered a guilty plea. See Docket in United States v. Johnson, Exhibit D. Johnson has

entered into a Plea Agreement. See Plea Agreement, Exhibit E. While the charges against

Johnson are brought by the Federal Bureau of Investigation, the Mississippi Attorney General claims

to be working jointly with the Federal Bureau of Investigation. See Press Release issued by the

Mississippi Attorney General, Exhibit F. Thus, the Mississippi Attorney General has control over

Johnson.

2
Case: 25CO1:16-cr-00624 Document #: 31 Filed: 08/16/2016 Page 3 of 5

6. Because Butler is a necessary witness on the pending States motions, this Court

should issue a Writ of Habeas Corpus Ad Testificandum requiring Christopher Butler to be at the

hearing. This Court should require the Mississippi Attorney General to produce Ivon Johnson at the

hearing. This Court should also require production of the Johnson tapes and transcripts of the tapes.

7. Should the State fail to produce this evidence, the charges against Smith should be

dismissed with prejudice. The right to call witnesses in ones own behalf has long been recognized

as essential to due process. Chambers v. Mississippi, 410 U.S. 284, 294 (1973).

8. On August 15, 2016, at approximately 2:00 p.m., Defendant Smiths attorney notified

States attorneys Larry Baker and Robert Anderson that he requests that they produce Johnson and

Butler at the hearing. They declined to do so, claiming the testimony is not relevant. They further

state they do not know whether or not there is a transcript of the tapes.

9. On August 15, 2016, defense counsel notified Butlers present attorney, Damon

Stevenson, that he intends to request Butlers presence at the hearing.

ACCORDINGLY, Smith requests that at the hearing on the States Motion to Disqualify

Counsel, and the States Motion for Stay of Proceedings, the Attorney General be required to

produce:

A. The States confidential informant, Ivon Johnson;

B. Christopher Butler, who was last know to be located at the Rankin County Jail, in
which case a Writ of Habeas Corpus Ad Testificandum should be issued; and

C. All tape recordings, and transcripts of all tape recordings, containing conversations
in which Smith and Ivon Johnson participated.

3
Case: 25CO1:16-cr-00624 Document #: 31 Filed: 08/16/2016 Page 4 of 5

Respectfully submitted this the 16th day of August, 2016.

ROBERT SMITH, Defendant

By: /s/ Jim Waide


Jim Waide, MS Bar No. 6857
waide@waidelaw.com

WAIDE & ASSOCIATES, P.A.


332 North Spring Street
Tupelo, MS 38802-3955
Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile

ATTORNEYS FOR ROBERT SMITH

4
Case: 25CO1:16-cr-00624 Document #: 31 Filed: 08/16/2016 Page 5 of 5

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us

Assistant Attorney General Larry Baker


P. O. Box 220
Jackson, MS 39205
lbake@ago.state.ms.us

VIA EMAIL:
Deenie L. Glass, Paralegal and
Court Administrator to Judge James D. Bell
BELL & ASSOCIATES, P.A.
318 S. State Street
Jackson, MS 39201
dglass@judgebell.com

VIA EMAIL:
Damon R. Stevenson, Esq.
Stevenson Legal Group, PLLC
1010 N. West Street
Jackson, MS 39202-2568
damon.steven@gmail.com
(Attorney for Christopher Butler)

SO CERTIFIED, this the 16th day of August, 2016.

/s/ Jim Waide


JIM WAIDE

5
Case: 25CO1:16-cr-00624 Document #: 31-1 Filed: 08/16/2016 Page 1 of 2
Case: 25CO1:16-cr-00624 Document #: 31-1 Filed: 08/16/2016 Page 2 of 2
Case: 25CO1:16-cr-00624 Document #: 26 Filed: 08/12/2016 Page 1 of 7

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. CAUSE NO. 25CO1:16-cr-00624

ROBERT SHULER SMITH DEFENDANT

MOTION TO DISQUALIFY DEFENSE COUNSEL

COMES NOW, the Plaintiff, the State of Mississippi, by and through

the Office of the Attorney General, and moves this honorable Court to

disqualify defense counsel, Jim Waide, from representing the defendant in

this matter. In support of its motion, the State of Mississippi would show the

Court the following:

1. Attorney Jim Waide entered his appearance as counsel of record for

the defendant, Robert Shuler Smith (Smith), in this action on June 29,

2016. See Dkt. No. 5.

2. On the very next day, June 30, 2016, the State of Mississippi,

through Special Assistant Attorney General Larry G. Baker, wrote Attorney

Waide a letter advising him of the States view that since he may be a witness

in this case, that he could be disqualified from representing Smith pursuant

to Rule 3.7 of the Mississippi Rules of Professional Conduct. See Exhibit A.


Case: 25CO1:16-cr-00624 Document #: 26 Filed: 08/12/2016 Page 2 of 7

3. In a telephone conversation with Special Assistant Attorney General

Robert G. Anderson on July 1, 2016, Mr. Waide was again advised of the

States view that he is a likely witness in this case and could be disqualified

from representing Smith. Notwithstanding the States statement of its

position that Waide is a likely witness in this case, he has filed a number of

motions on behalf of Smith. See Dkt. Nos. 6, 7, 14 and 15.

4. The State is mindful of that fact that the issue of disqualification

should be raised in a timely manner so as to avoid any suggestion that the

State has waived the issue of disqualification. See Colson v. Johnson, 764

So.2d 438 (Miss. 2000). At this point in time, there have been no hearings in

this Court and none of the motions on file have been taken up by the Court as

yet. For that reason, the State of Mississippi now urges the Court to

disqualify Jim Waide from representing Smith further in this case.

5. The basis for disqualification is set forth plainly in Rule 3.7 of the

Mississippi Rules of Professional Conduct, which states in relevant part:

Rule 3.7. Lawyer as Witness

(a) A lawyer show not act as advocate at a trial in which the lawyer is
likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services
rendered in the case, or

-2-
Case: 25CO1:16-cr-00624 Document #: 26 Filed: 08/12/2016 Page 3 of 7

(3) disqualification of the lawyer would work substantial hardship


on the client.

6. Even before the Mississippi Rules of Professional Conduct were

adopted, the Mississippi Supreme Court had ruled that if an attorney or

prosecutor is aware before trial that he will be a necessary witness, he should

withdraw. See Adams v. State, 202 Miss. 68, 78, 30 So.2d 593, 598 (Miss.

1947). In the later case of Pearson v. Parsons, 541 So.2d 447 (Miss. 1989), the

Mississippi Supreme Court interpreting and applying Rule 3.7 pointed out

that [t]he rationale of the rule rests on the premise that there exists of

conflict of interest when an advocate is asked to be a witness. Id. at 451.

Additionally, the Supreme Court stated that the most important and

compelling rationale for this Courts adoption of this rule is that the rule

protects the distinction between advocacy and testimony and protects the

integrity of the adversary system. Id. at 452.

7. While there are some instances where a lawyer may not be

disqualified if he is not likely to be a necessary witness or the evidence

sought from him is available from another source, this is not such a case. See

Horaist v. Doctors Hosp. Of Opelousas, 255 F.3d 261, 267 (5 th Cir. 2001). In

this case, the State has brought charges alleging that Smith, while acting in

his capacity as District Attorney, willfully and unlawfully consulted, advised

and counseled Christopher Butler, a defendant who had been charged with

-3-
Case: 25CO1:16-cr-00624 Document #: 26 Filed: 08/12/2016 Page 4 of 7

embezzlement and wire fraud in the First Judicial District of Hinds County,

Mississippi. See Affidavit, Dkt. No. 1. Smith was arrested on the charges

filed in this case on June 22, 2016. As part of its case-in-chief in this matter,

the State intends to offer evidence that Smith had one or more conversations

with Attorney Jim Waide regarding Smiths attempts to assist Christopher

Butler in connection with the pending charges against Butler. For example,

in one recorded conversation between Smith and a confidential informant,

Smith stated the following: So we got Jim Waide . . . and he [Waide] came

down here straight from New Orleans when I called him. . . . In a further

discussion with the confidential informant about Waide, Smith stated Oh, we

going to get him [Buterl] free now between me and Waide and all that, and

then Dennis is doing his thing on the other one. During another recorded

conversation, Smith receives a call and states, Hey! How you doing, Jim?

This conversation lasts for over 15 minutes. After the call, Smith tell the

confidential informant, That was Jim Waide. Smith later tells the

confidential informant, he said we have injunctive and declaratory relief.

8. As these excerpts plainly reflect, Smith sought to have Waide

represent Butler in a pending case, although Butler already had counsel.

Since the Christopher Butler case is a central matter in the States case

against Smith, Waide will be a necessary witness in the States case against

-4-
Case: 25CO1:16-cr-00624 Document #: 26 Filed: 08/12/2016 Page 5 of 7

his client, Smith. While other witnesses might be called to testify about

Smiths involvement in the Butler case, the State will put in issue the

question whether Smith sought to engage Waide to represent Butler and, in

that respect, Waides testimony is necessary to this prosecution and renders

Waide disqualified under Rule 3.7. Compare Liberty Mutual Insurance

Company v. Tedford, 644 S.Supp.2d 753, 767 (N.D.Miss. 2009).

9. The Court has a duty, just as the State of Mississippi does, to assure

that Smith receives a fair trial and to assure that his selected attorney is free

from conflicts that might impact on his clients trial. Since Waide will be a

witness in this case, he cannot separate his role of advocate for Smith from

his role as witness regardless of whether his testimony is favorable or

adverse to Smith. Tedford, supra, at 767. For that reason, Rule 3.7

mandates that Waide be disqualified from representing Smith in this case.

-5-
Case: 25CO1:16-cr-00624 Document #: 26 Filed: 08/12/2016 Page 6 of 7

WHEREFORE, premises considered, the State respectfully requests

that this Court rule that Attorney Jim Waide is disqualified from

representing the defendant in this case.

THIS the 12th day of August, 2016.

Respectfully submitted,

JIM HOOD, MISSISSIPPI


ATTORNEY GENERAL

s/Robert G. Anderson
BY: Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589
Larry G. Anderson
Special Assistant Attorney General

MS Bar No. 10569


Office of the Attorney General
State of Mississippi
P.O. Box 220
Jackson, MS 39205

-6-
Case: 25CO1:16-cr-00624 Document #: 26 Filed: 08/12/2016 Page 7 of 7

CERTIFICATE OF SERVICE

I, Robert G. Anderson, hereby certify that I have this day filed the

above and foregoing Motion to Disqualify Defense Counsel with the Clerk of

Court, utilizing the Courts electronic case filing system, which sent

notification to the Jim Waide, Attorney for the Defendant, Robert Shuler

Smith, at his usual e-mail address of waide@waidelaw.com.

THIS the 12th day of August, 2016.

s/ Robert G. Anderson
Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589

-7-
Case: 25CO1:16-cr-00624 Document #: 25 Filed: 08/12/2016 Page 1 of 2

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. CAUSE NO. 25CO1:16-cr-00624

ROBERT SHULER SMITH DEFENDANT

SUPPLEMENTAL MOTION TO STAY PROCEEDINGS

COMES NOW, the Plaintiff, the State of Mississippi, by and through the Office of the

Attorney General, and requests this honorable Court to stay all proceedings in this matter

pending the resolution of a Motion concerning the grand jury which has been presented to

Special Judge Larry E. Roberts.

Wherefore, premises considered, the State of Mississippi respectfully requests this

honorable Court to stay all further proceedings in this matter including the hearing set for

August 18, 2016 pending resolution of the Motion concerning the grand jury.

THIS the 12th day of August, 2016.

Respectfully submitted,

JIM HOOD, MISSISSIPPI ATTORNEY GENERAL

s/ Robert G. Anderson

Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589
Larry G. Baker
Special Assistant Attorney General
MS Bar No. 100569
Office of the Attorney General
State of Mississippi
P.O. Box 220
Jackson, MS 39205
Case: 25CO1:16-cr-00624 Document #: 25 Filed: 08/12/2016 Page 2 of 2

CERTIFICATE OF SERVICE

I, Robert G. Anderson, hereby certify that I have this day filed the above and foregoing

Supplemental Motion to Stay Proceedings with the Clerk of Court, utilizing the Courts

electronic case filing system, which sent notification to the Jim Waide, Attorney for the

Defendant, Robert Shuler Smith, at his usual e-mail address of waide@waidelaw.com.

THIS, the 12th day of August, 2016.

s/ Robert G. Anderson
Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589
Case: 25CO1:16-cr-00624 Document #: 24 Filed: 08/11/2016 Page 1 of 3

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. CRIMINAL ACTION NO.: 16-624

ROBERT SHULER SMITH DEFENDANT


______________________________________________________________________________

DEFENDANTS NOTICE OF HEARING


______________________________________________________________________________

PLEASE TAKE NOTICE that Defendant Robert Shuler Smith will bring on for hearing his

Motion for Immediate Dismissal Based Upon Admission of Mississippi Attorney General, Motion

to Be Provided Transcripts of Sealed Proceedings and Copies of Documents Filed in Sealed

Proceedings, Second Motion to Be Provided Transcripts of Sealed Proceedings and Copies of

Documents Filed in Sealed Proceedings, Motion to Dismiss for Lack of Indictment by Grand Jury,

and Motion for Extraordinary Relief for Appointing a Special Prosecutor in Lieu of the Mississippi

Attorney General from Prosecuting Any Cases Against Robert Shuler Smith, on Thursday, August

18, 2016, before Special Circuit Court Judge James D. Bell, in the Circuit Court of Hinds County,

Mississippi, at 9:30 a.m., or as soon thereafter as counsel may be heard.

Respectfully submitted this the 11th day of August, 2016.


Case: 25CO1:16-cr-00624 Document #: 24 Filed: 08/11/2016 Page 2 of 3

ROBERT SMITH, Defendant

By: /s/ Jim Waide


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

ATTORNEYS FOR ROBERT SMITH

2
Case: 25CO1:16-cr-00624 Document #: 24 Filed: 08/11/2016 Page 3 of 3

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, Mississippi 39205
rande@ago.state.ms.us

Assistant Attorney General Larry Baker


P. O. Box 220
Jackson, Mississippi 39205
lbake@ago.state.ms.us

SO CERTIFIED, this the 11th day of August, 2016.

/s/ Jim Waide


JIM WAIDE

3
FILED
Serial: 207496 ~ 11r, 04 2016
IN THE SUPREME COURT OF MISSISSIPPI OFFICE OF THE CLERK
SUPREME COURT
COURT OF APPEALS

State of Mississippi Plaintiff

v. No. 2016-AP-01102

Robert Shuler Smith Defendant

No. 16-624; In the County Court of Hinds


County, Mississippi, First Judicial District

ORDER APPOINTING SPECIAL JUDGE

THIS MATTER is before the Court, en bane, upon request by the Judges for the

County Court of Hinds County, Mississippi, First Judicial District, for the appointment of a

Special Judge to preside over the proceedings in the above numbered and styled cause, which

is presently pending in the County Court ofHinds County, Mississippi, First Judicial District.

Senior Status Judge James D. Bell, has agreed to accept this case and shall preside and

conduct proceedings until such time as the case is concluded. This request is necessitated by

the recusal of the Judges for said Court by virtue of Orders ofRecusal executed in said case

on July 10, 2016, July 11, 2016, and August 1, 2016.

Having fully considered the matter, the Court finds that the request is proper pursuant

to Miss. Code Ann. Section 9-1-105.

IT IS THEREFORE ORDERED AND ADJUDGED that Honorable James D. Bell,

Senior Status Judge, be, and he is, hereby specially appointed Special Judge to preside and
conduct proceedings in the above referenced case pursuant to and by authority of Mississippi

Code Ann. Section 9-1-105; which states that the Chief Justice may, with the advice and

consent of a majority of the Justices of the Mississippi Supreme Court, appoint a Special

Judge.

IT IS FURTHER ORDERED that the Clerk of this Court transmit copies of this order

to the Honorable James D. Bell, Special Judge; the Honorable William L. "Bill" Skinner; the

Honorable Melvin V. Priester, and the Honorable LaRita Cooper-Stokes, Judges of and for

the County Court of Hinds County, and, to the Clerk of the County Court of Hinds County,

who is directed to file this Order and deliver copies to all counsel of record in said case and

to parties not represented by counsel.

IT IS FURTHER ORDERED that upon the conclusion of this case in the trial court,

the Special Judge shall promptly forward a copy of the final judgment or other order of final

disposition by mail or email to the Court Administrator, Supreme Court of Mississippi, P.O.

Box 117, Jackson, MS 39205, hsaunders@courts.rns.gov.

SO ORDERED, this the 4th day of August, 2016.

WILLIAM L. WALLER, JR.,


CHIEF JUSTICE
FOR THE COURT

AGREE: ALL JUSTICES.

2
Case: 25CO1:16-cr-00624-MVP Document #: 9 Filed: 07/07/2016 Page 1 of 5

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. CRIMINAL ACTION NO.: 16-624

ROBERT SHULER SMITH DEFENDANT

______________________________________________________________________________

ROBERT SMITHS MOTION TO DISMISS


FOR LACK OF INDICTMENT BY GRAND JUDY
______________________________________________________________________________

Defendant Robert Smith (hereinafter Smith) moves the Court to dismiss the criminal

affidavit against him for lack of an indictment by grand jury. Smith shows the Court the following:

1. Miss. Const. 175 requires indictment by a grand jury in order to remove any

public officer from office for willful neglect of duty or misdemeanor in office.

2. Smith has been charged by affidavit, not indictment, for violating Miss. Code Ann.

97-11-3, which provides that a district attorney shall, among other things, not advise, . . . a

person charged with a crime. . . . The penalty is being removed form office, and rendered

incapable thereafter of filling any office of profit or honor in this state. Id.

3. Miss. Code Ann. 97-11-3 does not address how a charge may be brought under its

provisions. Thus, the Court need not decide whether that statute is constitutional. If possible, a

court should construe statutes so as to render them constitutional rather than unconstitutional. . . .

Mauldin v. Branch, 866 So. 2d 429, 435 (Miss. 2003), quoting Loden v. Miss. Pub. Serv. Comm'n,

279 So.2d 636, 640 (Miss. 1973).

3. Of course, should the Court deem Miss. Const. 175 and Miss. Code Ann. 97-11-3

to conflict, resolving the conflict is easy. The general principle followed when considering a
Case: 25CO1:16-cr-00624-MVP Document #: 9 Filed: 07/07/2016 Page 2 of 5

possible conflict between the constitution and a statute is that the constitutional provision prevails.

Bd. of Trustees of State Institutions of Higher Learning v. Ray, 809 So.2d 627, 636 (Miss. 2002).

4. Contrary to the anticipated argument of the Attorney General, Miss. Const. 175 is

not trumped by Miss. Const. 27. Miss. Const. 27 provides a general rule that the legislature,

in cases not punishable by death or by imprisonment in the penitentiary, may dispense with the

inquest of the grand jury, and may authorize prosecutions before justice court judges, or such other

inferior court or courts as may be established,. . . . Miss. Const. 27 is not implicated since in

enacting Miss. Code Ann. 97-11-3, the Legislature has not dispensed with the necessity for

indictment by the grand jury.

5. Should the Court find, however, that there be a conflict between Miss. Const. 175

and Miss. Const. 27, then it is the more specific provision which controls. Miss. Const. 175

deals with the specific subject matter of removing a public officer; whereas Miss. Const. 175

addresses the general area of the charging procedure for those charged with any crime. To the

extent that two constitutional . . . provisions overlap or conflict, specific provisions control over

general provisions. Harrison v. State, 800 So.2d 1134, 1137 (Miss. 2001) (citations omitted).

6. The principles applicable here are so clear that citation of authorities should not be

necessary. In the event the Court finds that they are, however, the principle has been disposed of

in ancient cases. Lizano v. City of Pass Christian, 96 Miss. 640, 50 So. 981 (Miss. 1910), held that

an ordinance there in question does not conform to the requirements of the section of the

Constitution in question, in that it provides for the removal [from public office] without indictment,

trial, and conviction, and is therefore a nullity. Id. at 982. Lizano cited with approval Moore v.

State, 45 So. 866 (Miss. 1908), which involved a city marshal who was charged by affidavit before

2
Case: 25CO1:16-cr-00624-MVP Document #: 9 Filed: 07/07/2016 Page 3 of 5

a justice of the peace with malfeasance in office, fined, and removed from office;. . . . Lizano, 50

So. at 982, a removal which the Supreme Court reversed because the Constitution required that

there should be a grand jury presentment or indictment and conviction before removal. Id. Lizano

further specified that the requirement of removal from public office was established as anciently as

Ex parte Lehman, 60 Miss. 967 [(Miss. 1883)], Hyde v. State, 52 Miss. 665 [(Miss. 1876)], and the

cases therein cited. Lizano, 50 So. at 982. Unless there is immediate and serious cause, the ballot

is intended to be the method of removal, and it was not the purpose of the Constitution makers that

the will of the people should be thwarted by partisans,. . . . Lizano, 50 So. at 982.1

7. A holding that one may be removed from office through a mere affidavit, and brought

before even one with no training in law, such as a justice court judge, as stated in Miss. Code Ann.

97-11-3, diminishes the power of the voters to choose their district attorney. Such a diminishment

in the power of the voters is an unsound interpretation since the right to vote is a fundamental

political right, because [it is] preservative of all rights. Harper v. Virginia State Bd. of Elections,

383 U.S. 663, 667 (1966).

8. The Supreme Court has not dealt in recent years with removal of district attorneys.

It has dealt, however, with the removal of judges. In that context, the Mississippi Supreme Court

has recently specified that the requirements of the state Constitution must be followed:

The jointly recommended sanction [to be removed from judicial office] requires us
to recognize the limits of our constitutionally vested powers in these matters.
Included in the recommended sanctions, agreed to by Judge Darby, is that she be
prohibited from holding judicial office in the future. Our constitution does not
expressly empower this Court to order such a prohibition.

1
Lizano was approved in State v. Henderson, 146 So. 456 (Miss. 1933), where the court addressed an
argument that one might be removed from office without complying with the requirements of Miss. Const. 175, by
stating: A complete answer to this is that the Constitution requires the judgment of conviction to be rendered in a
trial on a presentment or indictment by a grand jury. State v. Henderson, 46 So. at 457.

3
Case: 25CO1:16-cr-00624-MVP Document #: 9 Filed: 07/07/2016 Page 4 of 5

Mississippi Com'n on Judicial Performance v. Darby, 143 So.3d at 568. By way of analogy, the

Mississippi Constitution does not expressly empower this Court to order a district attorney to be

removed from office without indictment by a grand jury.

CONCLUSION

The affidavit should be dismissed for lack of indictment by a grand jury.

Respectfully submitted this the 7th day of July, 2016.

ROBERT SMITH, Defendant

By: /s/ Jim Waide


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

ATTORNEYS FOR ROBERT SMITH

4
Case: 25CO1:16-cr-00624-MVP Document #: 9 Filed: 07/07/2016 Page 5 of 5

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Assistant Attorney General Robert Anderson


P. O. Box 220
Jackson, Mississippi 39205
rande@ago.state.ms.us

Assistant Attorney General Larry Baker


P. O. Box 220
Jackson, Mississippi 39205
lbake@ago.state.ms.us

SO CERTIFIED, this the 7th day of July, 2016.

/s/ Jim Waide


JIM WAIDE

5
;ot(.g --1n - /015
FILED
IN THE MISSISSIPPI SUPREME COURT
JUL 18 2016
CAUSE N O . - - - -
OFFICE OF THE CLERK
SUPREME OOURT
COURT OF APPEALS
IN RE: ROBERT SHULER SMITH

ROBERT SMITH'S MOTION FOR WRITS OF PROHIBITION AND MANDAMUS


l I
WITH RESPECT TO ORDER STRIPPING HIM OF HIS
DUTIES AS DISTRICT ATTORNEY OBIG\Nns.
Robert Shuler Smith (hereinafter "Smith") is the elected District Attorney for Hinds County,

Mississippi. Pursuant to Miss. R. App. P. 21 (c), Smith requests this Court prohibit enforcement of

the Administrative Order of Immediate Temporary Disqualification of the Hinds County District

Attorney. Further, Smith requests that this Court order the Hinds County Circuit Court to unseal

files which are sealed in violation of the First Amendment to the United States Constitution, and in

violation of this Court's precedents. Grounds for this motion are as follows:

1. On June 22, 2016, Smith was arrested by the Attorney General's office based on a

criminal affidavit of an Attorney General's investigator. A copy of that affidavit is attached hereto

as Exhibit "A." At the time of his arrest, Smith had been involved with an ongoing dispute with the

Attorney General's office regarding the handling ofcriminal cases. Smith planned to present matters

pertinent to one of these criminal cases to the Grand Jury on June 23, 2016, but his arrest prohibited

his doing so.

2. On June 23, 2016, Hinds County Circuit Judge Jeff Weill, Sr. entered the

Administrative Order of Immediate Temporary Disqualification of the Hinds County District

Attorney. A copy of that Order is attached hereto as Exhibit "B." Judge Weill gave Smith neither

notice of a hearing nor a hearing before entering the Order attached hereto as Exhibit "B." Smith

2016 Jo'-t i
{ i

had no prior notice that Judge Weill was considering removing him from the duties of his office, or

that Judge Weill was considering any other action against him.

3. The Order bars Smith "from any and all participation, either directly or indirectly, in

any grand jury proceedings in Hinds County." See Order attached hereto as Exhibit "B," at p. 3.

4. This Order should be set aside for the following reasons:

A. Smith was not given notice of a hearing or a hearing with respect to the
Administrative Order ofImmediate Temporary Disqualification ofthe Hinds County
District Attorney. Thus, the Order violates Smith's right not to be deprived of
"property" and "liberty" without due process of law. This right is guaranteed by
the United States Constitution, Amendment Fourteen, and the Mississippi
Constitution 14.

Both the United States and Mississippi Constitutions prohibit the tal<lng of "property" and

"liberty" without due process of law. See, United States Constitution, Amendment Fourteen and

Mississippi Constitution, Section 14. A person has a "property" interest for due process purposes

if there are" ... rules or mutually explicit understandings that support his claim of entitlement to the

benefit." Perry v. Sindermann, 408 U.S. 593, 601 (1972). For example, a public employee, who

cannot be removed from office except for "misfeasance, malfeasance or nonfeasance in office ...

possesse[s] property rights in continued employment. . . ." Cleveland Bd. of Education v.

Loudermill, 470 U.S. 532, 538-39 (1985). Similarly, "an elected [Mississippi] city official who is

entitled to hold an office under state law has a property interest in his employment." Crowe v.

Lucas, 5 5 5 F .2d 992-93 ( 5th Cir. 1971 ). "Property" consists of entitlements "upon which people rely

in their daily lives, reliance that must not be arbitrarily undermined." Board of Regents of State

College v. Roth, 408 U.S. 564, 577 (1972). These expectancies "are created and their dimensions

are defined by existing rules or understandings that stem from an independent source such as state

2
1 'i

law- ...." Id. Here, state law gave Smith a "reasonable expectancy" in being allowed "to represent

the state in all matters coming before the grand juries ... " and "appear[ing] in the circuit courts and

prosecut[ing] for the state in his district all criminal prosecutions . " MISSISSIPPI CODE

ANNOTATED 25-31-11.

Smith also had a clearly-established "liberty" interest in not being stripped of his duties and

status as a district attorney based on public allegations damaging to his reputation. See, Goss v.

Lopez, 419 U.S. 565, 574-75 (1975) (Suspension from school based on charges of misconduct is a

denial of"liberty"); Paul v. Davis, 424 U.S. 693 (1976) (Damage to reputation standing alone is not

deprivation of liberty, but altering or extinguishing rights established by State law is a denial of

liberty); Coast Materials Co., v. Harrison Co. Dev. Comm 'n, 730 So.2d 1128, 1133 (Miss. 1998)

(No taking of liberty where there was "no evidence of any affirmative governmental action which

unreasonably interfered with [plaintiffs] right to hold specific private employment or follow

[plaintiffs] profession"). In this case, the Administrative Order of Immediate Disqualification of

the Hinds County District Attorney damages Smith's reputation and, in so doing, extinguishes or

alters his duties as district attorney. Thus, Smith was also deprived of "liberty."

Because Smith has a Fourteenth Amendment "property" and "liberty" interest, a judge cannot

lawfully strip him of his duties without prior notice of hearing and a hearing. "An essential principle

of due process is that a deprivation of ... liberty or property '[must] be preceded by notice and

opportunity for hearing appropriate to the nature of the case.' " Cleveland Bd. of Education, 470

U.S. at 542. "The right to due process reflects a fundamental value in our American constitutional

system." Boddie v. Connecticut, 401 U.S. 371, 374 (1971).

3
B. The Order conflicts with the Mississippi Constitution and Mississippi statutes
requiring an indictment and a trial before a public officer may be removed from his
office.

The Order removes crucial parts of a district attorney's duties without his having been

indicted or convicted. Mississippi Constitution 175 requires indictment by a Grand Jury and

conviction in order to remove any public officer from office "for wilful neglect of duty or

misdemeanor in office." MISSISSIPPI CODE ANNOTATED 97-11-3 provides that a district attorney

may be removed from office upon conviction of either a crime or misdemeanor. It does not and

could not1 modify the requirements of Mississippi Constitution 175, which mandates that the

charge be made through indictment. 2

For example, Lizano v. City of Pass Christian, 50 So. 981, 982 (Miss. 1910) held that an

ordinance providing for the removal from office of a town marshal! "does not conform to the

requirements of the section of the Constitution in question, in that it provides for the removal [from

public office] without indictment, trial and conviction, and is, therefore, a nullity." "Unless there

is immediate and serious cause, the ballot is intended to be the method of removal, and it was not

"The general principle followed when considering a possible conflict between


the constitution and a statute is that the constitutional provision prevails." Board of
Trustees ofState Institutions of Higher Learning v. Ray, 809 So.2d 627, 636 (Miss.
2002).
2
Mississippi Constitution 175's right to an indictment before one may be
removed from public office is not trumped by Mississippi Constitution 27, which
provides a general rule that the "legislature, in cases not punishable by death or by
imprisonment at a penitentiary, may dispense with inquest of a grand jury, and may
authorize prosecution before justice court judges, or such other inferior court or courts as
may be established." Mississippi Constitution 175 specifically instructs about removal
from public office. Mississippi Constitution 27 states a general rule. "To the extent
that two constitutional or statutory provisions of the Mississippi Constitution overlap or
conflict, specific provisions control over general provisions." Harrison v. State, 800
So.2d 1134, 1137 (2001).

4
the purpose of the Constitution makers that the will of the people should be thwarted by partisans,

. . . ." Id. Accord, State v. Henderson, 146 So. 456, 457 (Miss. 1933) (for removal, "the

Constitution requires the judgment of conviction to be rendered in a trial on a presentment or

indictment by a grand jury. " 3

Allowing a single judge to cancel the duties of an elected district attorney diminishes the

authority of the voters to choose persons for public office. The right to vote is a "fundamental

political right, because preservative of all rights." Harper v. Virginia State Board ofElections, 383

U.S. 663, 667 (1966).

When considering an agreement between a judge and the Mississippi Commission on Judicial

Performance to prohibit a judge from seeking a future judicial office, this Court sua sponte observed

that our Constitution "requires us to recognize the limits of our constitutional ... power in these

matters," and that "our constitution does not expressly empower this Court to enter such a

prohibition." Mississippi Commission on Judicial Performance v. Darby, 143 So.3d 564, 568

(2014). Similarly, there is no constitutional provision or even a statute that gives any judge the

authority to remove a district attorney from the duties of his elected office except upon indictment

and conviction.

3
The fact that the criminal charge against Smith is made by affidavit and not by
indictment, and made by an attorney general's investigator, who was one of the persons
with whom Smith was involved in a serious legal dispute, emphasizes why an indictment
by a grand jury is so important. See, Blau v. State, 34 So. 153, 155 (1903) ("It cannot be
doubted that one whose acts are the subject of an investigation is as much entitled to the
just, impartial, and unbiased judgment of that body [a grand jury] as he is to that of the
petit jury on his final trial. . ." ) .

5
C. The Order should be set aside because it is based, in substantial part, upon
proceedings which the circuit court sealed in contravention of this Court's orders.
The Order relies upon three "sealed proceedings in Cause Nos. 251-16-26, and more recently

in 251-16-355 and 251-16-543. See Order, attached hereto as Exhibit "B," at p. 3. Smith is seeking

a copy of these sealed proceedings. 4

Additionally, evidence indicating that Smith is innocent of aiding criminal defendants was

adduced in another sealed hearing held on March 30, 2016 in sealed Cause No. 251-16-120.

Removing Smith's duties based upon sealed hearings, to which Smith has no access, is

fundamentally unfair. Smith cannot know the "nature of the charge" (United States Constitution,

Amendment Six) without examining the transcript of the sealed hearing upon which the charges

against him are based. Furthermore, "the suppression of the prosecution of evidence favorable to

the accused upon request violates due process where the evidence is material either to guilt or to

punishment. ..." Brady v. Maryland, 373 U.S. 83, 87 (1983).

To this point, Smith has been unsuccessful in obtaining these sealed


proceedings. Smith filed a Motion to be Provided Transcript of Sealed Proceedings and
Documents filed in Judge Weill's court on June 30, 2016. See Motion to Be Provided
Transcripts of Sealed Proceedings and Copies of Documents Filed in Sealed Proceedings,
attached hereto as Exhibit "C." Upon being informed by the circuit clerk that the motion
should be filed in the same court as the criminal case, Smith then filed his motion in
Hinds County Court. See, Motion to Be Provided Transcripts of Sealed Proceedings and
Copies of Documents Filed in Sealed Proceedings, attached hereto as Exhibit "D." Smith
notified both Judge Weill and Hinds County Court Judge Priester of these motions. See
Email to Judge Weill with attached Letter from Jim Waide, attached hereto as Exhibit
"E," and Email to Judge Priester from Jim Waide, attached hereto as Exhibit "F." There
has been no ruling to date. Smith is also now requesting the County Court to provide him
with a transcript of the sealed hearing held on March 30, 2016, in Cause No. 251-16-120.
See Second Motion to be Provided Transcripts of Sealed Proceedings and Copies of
Documents Filed in Sealed Proceedings filed in the County Court of Hinds County,
attached hereto as Exhibit "G." Of course, one could hardly expect the county court
judge to overrule the circuit court judge's decision to seal the proceedings.

6
The sealing ofthese files disobeys this Court's instructions in Gannett River State Publishing

Co. v. Hand, 571 So.2d 941, 945 (Miss. 1990). Gannett relied upon Globe Newspaper Company

v. Superior Court for the County of Norfolk, 457 U.S. 596 (1982), which interpreted the First

Amendment to the United States Constitution. Gannett River held that "[b]ecause of the frequency

for which closure orders have been entered in the trial courts of our State, we find it is time that this

Court issue some procedural guidelines as to how such closure motions should be handled in the trial

courts in order to protect the First Amendment rights of the press and public, ...." Gannett River,

571 So.2d at 945. Gannett River found that any motion for closure "must be docketed, as notice to

the press and public, in the court clerk's office for at least 24 hours before any hearing on such

submission, with the usual notice to all parties." Id. Further, at the closure hearing, it must be

shown that there is an "overriding interest that is likely to be prejudiced" by open proceedings, and

"the closure must be no broader than necessary to protect that interest." Id. Further, "the trial court

must consider reasonable alternatives to closing the proceedings, and it must make findings adequate

to support the closures." Gannett River also requires the court to make public a transcript of the

5
closure hearing. Id.

Gannett River noted cases where the "rights of the accused override the qualified First

Amendment rights of access." Id. at 942. In this case, however, it was the Attorney General, not the

5
The First Amendment implications of closing public records are explored in
Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555, 567-68 (1980). Of course, Grand
Jury proceedings are secret by statute. MISSISSIPPI CODE ANNOTATED 25-61-11. The
suppression of names of persons who file motions to suppress subpoenas exceed any
legitimate need for Grand Jury secrecy. To protect Smith's Fourteenth Amendment rights
to a "fair opportunity to defend the State's allegations," Chambers v. Mississippi, 460
U.S. 284, 294 (1973), Smith is entitled to see the sealed documents and transcripts of the
sealed proceedings.

7
accused (Smith), who asked that the proceedings be sealed. The proceedings were sealed in Judge

Weill's court over Smith's objection.

D. The Order should be voided because Judge Weill was not the impartial judge required by
the due process clause of the United States Constitution, Amendment Fourteen and
Mississippi Constitution 14.

District Attorney Smith and Circuit Judge Weill were very recent adversaries in a proceeding

in which Smith had attempted, unsuccessfully, to subpoena Judge Weill. See, Redacted email from

Amy Whitten, attached hereto as Exhibit "H."

Davis v. Neshoba County General Hospital, 611 So.2d 904 (1992) held it error for a judge

not to recuse himself when "personal tension... obviously existed" against the opposite party's

attorney. "[R]ecusal is required when the evidence produces a reasonable doubt as to the judge's

impartiality." Dodson v. Singing River Hospital, 839 So.2d 530, 533 (2003). In Re: Blake, 912

So.2d 907 (Miss. 2005) held that a Hinds County Circuit Judge should have recused herself where

she had shown hostility toward an attorney, and had failed to provide a transcript necessary to an

appeal despite multiple requests. As in In Re: Blake, Judge Weill has ordered proceedings sealed,

but has never responded to Smith's request that he be allowed to have a copy of the proceedings for

his own defense. See, Motion to Be Provided Transcripts of Sealed Proceedings and Copies of

Documents Filed in Sealed Proceedings, attached hereto as Exhibit "C." "A fair trial in a fair

tribunal is a basic requirement of due process." In Re: Murchinson, 349 U.S. 133, 136 (1955).

Accordingly, "[e]very procedure which would offer a possible temptation to the average man as a

judge... not to hold the balance nice, clear and true between the State and the accused denies the

latter due process oflaw." Id. Given the adversarial relationship between Judge Weill and Smith,

Judge Weill should not have ruled upon any matter affecting Smith.

8
CONCLUSION

Smith requests that this Court prohibit enforcement ofthe Administrative Order ofImmediate

Temporary Disqualification ofthe Hinds County District Attorney. Further, Smith requests that this

Court Order the Hinds County Circuit Court to unseal all of the files it has previously sealed without

complying with Gannett River State Publishing Co. v. Hand, 571 So.2d 941, 945 (Miss. 1990).

Respectfully submitted this the 15th day of July, 2016.

ROBERT SMITH, Defendant

By:

ATTORNEYS FOR ROBERT SMITH

9
CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, emailed and mailed, via United States Postal System, a true
and correct copy to the following:

Attorney General Jim Hood


P. 0. Box220
Jackson, Mississippi 39205
jhood@ago.state.ms. us

Assistant Attorney General Robert Anderson


P. 0. Box220
Jackson, Mississippi 39205
rande@ago.state.ms.us

Assistant Attorney General Larry Baker


P. 0. Box220
Jackson, Mississippi 39205
lbake@ago.state.ms. us

Assistant Attorney General Shaun Yurtkuran


P. 0. Box220
Jackson, Mississippi 39205
syurt@ago.state.ms.us

Assistant Attorney General Patrick Beasley


P. 0. Box220
Jackson, Mississippi 39205
pbeas@ago.state.ms.us

Assistant Attorney General Stanley Alexander


P. 0. Box220
Jackson, Mississippi 39205
salex@ago.state.ms.us

Honorable Jeff Weill, Sr.


Circuit Court Judge
PO Box 22711
Jackson, MS 39225
weillslawclerk@co.hinds.ms.us

10
Tesa Barrett, Court Reporter
PO Box22711
Jackson, Mississippi 39225

SO CERTIFIED, this the 15th day of July, 2016.

11
STATE OF MISSISSIPPI

COUNTY OF ){; rJrJ..s

PERSONALLY came and appeared before me, the undersigned authority in and for the
aforesaid jurisdiction, the within named ROBERT SHULER SMITH, who, after being first duly
sworn, states under oath that the facts contained in the above and foregoing MOTION FOR A WRIT
OF PROHIBITION WITH RESPECT TO ORDER STRIPPING HIM OF HIS DUTIES AS
DISTRICT A TTO RN EY are true and correct as stated therein, and that the docmrents attached as
exhibits to the Motion are authentic.

ZZ.4)t!tt Jj
ROBERT SHULER SMITH

GIVEN under my hand and official seal of office on this the !:sf' day of July, 2016.
Case: 25C01:16-cr-00624-MVP Document#'. 1 Filed: 06/22/2016 Page 1 of 3

FI LED
AFFIDAVIT JUN 22 2010
ZACX WALLAce., CIRCUrrCLERK

STATE OF MISSISSIPPI BY D.C.


COUNTY OF HINDS
F1RST JUDICIAL DISTRICT /6-6~fl
Personally appeared before the tmdersigned Justice Court Judgi; Leland McDivitt, criminal
investigator wi~ the office of the Mississippi Attomey-Oeneral, who being duJysworn, deposes
and makes affidavit on "infonnation and belief that in the First Judicial District.ofHinds County,
Mississippi
COUNT I
Robert Shuler Smith on or about the 1-0lh day of.June, 2016~ while acting in his capacity 1iS the
District.Attomey ofthe 7th Circuit Court District, Mississippi. did willfully and unlawfully
consult. advise, counsel and defend Darnell Turner, who was then and there charged in the
CiICUit Court of the First Judicial District of Hinds County with the crimes of aggravated assault
. ' le e da to on. Dennis Sweet ill who is the attom for
Darnell Turner, the attached e-mat1s (which are incorporated by reference) of conversations t
took place between the State, District Attorney, and the Court regarding matters.that had been
previously sealed by the Court in cause--number I6239, all oftbis was done in order to consult,
.advise counsel or defend Darnell Turner by and through attorney Dennis Sweet m a.gainstthe
.
state's pending charges, this against the peace, dignity and laws .of the State of Mississippi;

See Exhibit I : Motion to Dismiss.


Exhibit 2: Motion to Unseal Sealed Order and all Discoverable O;,mmunications

CHARGE: District Attorney not to advise, counsel, consult, or .defend criminals [97-11-3)

COUNT II

Robert Shuler Smith on or about the 26h day of May, 2016, while acting in his capacity as the
District Attorney of 7t'o Circuit Court District, Mississippi, did willfully and-unlawfully consult.
advise- and counsel CbristQpher Butler, who was then and there charged in the County Court of
the First Judicial District of Hinds County in case number 16-50-AO with the crimes of
embezzlement and wire fraud, at the.Hinds County Jail outside the presence of Butler's attorney
on May 261 20.16 from 8:56 a.m. to 09:13 a.m., against the peace, dignity and laws of the State of
Mississii,pi;

See Exhibit -i: Sheriff's Department Jail Visitation Log.

). CHARGE: District Attorney not to advise, counsel, consult, or defend criminals [97-11-31

EXHIBIT
I A:
' ...

Case: 25C01:16-cr-00624-MVP Document#'. 1 Filed: 06/22/2016 Page 2 of 3

COUNTW

Robert Shuler Smith on or about March 21, 2016, while acting in bis capacity as the District
Attomey 7lh Circuit Court Distdct of, Mississippi, did willfully and lllllawful~y consult, advise,
counsel and defend Christopher Butler, who was then and there charged in the County Court of
the First Judicial District of Ifmds County in case number 16MSOMAG with the crimes of
Embezzlement and Wire Fraud, by delivering to Sanford Knott, who was at that time Mr.
Butler's attorney, the attached letter dated March 21st 2016 (which is incorporated by reference),
in which Mr. Smith advises attorney Knott ofvatjous ways to attack the state's pending case
against Mr. Butler; thereby, providi~g advice, counsel, and defense to Christopher Butler, by end
through his attomey, against the peaoe, dignity and.laws of the State of Mississippi;

See Exhibit l~ Letter dated Maich 21, 2016 to Attorney Sanford -~~tt

CHAROE: District Attorney not to .advise, consult, counsel, or defend criminals [9711-3]

COUNT IV

Robert Shuler Smith, on or about May 9, 2016, while acting in his capacity as the District
Attorney of 70. Circuit Court District, Mississippi, did willfully and unlawfully consult, aqvise,
counsel, or defend Christopher Butler, who was then and tl_iere charged m'the County Court of
the F.n!lt .11tdioiai Bistfte~ ef Hin&G&UffliY is-Gase aumlt0rlv SO. 4 Q w~c::imcs of
Embezzlement and Wire Fraud at the Hinds County.Jail, outside the presence ofMr. Butler's
attorney on May 9, '2016, against the peace, dignity and laws of the State of Mississippi;
. .

See Exhibit 1: Sherifrs Department Jail VJ.Sitation Log.

CHARGE: District Attorney not to advise, counsel, consult, or defend criminals [97-11-3]

COUNTV

Robert Shuler Smith on or about.and.between the dates of January 14, 2016 and June 20, 2016,
while acting in his capacity .as the District Attorney of the ~ Ciro~t Court _District, 'Mississippi,
did willfolly end unlawfully. consult, advise, counsel and defend Christopher Butler~ who m.s
then.and there charged in the County Court of the 'First Judicial District ofHinds County in case
number 16-50-AO with the crimes of embezzlement and wire fraud, by meeting with the family
of the defendant Christopher Butler, referri11.g' to Butler as "his client", attempting to retain
defense counsel for defendant Butler and working with defense counsel to obtain the release of
defendant Butler from the Hinds County.Jail, against the peace, dignity and laws of the State of
Mississipp~

CHARGE: District Attorney not to advise, counsel, consult, or defend criminals [97-11-3]

)
I ';Jo""

Case: 2sco1:1s..cr..ooa24"MVP Document#: 1 Filed: 06/22/2016 Page 3 of 3

.,.

~.l;i,, ..
~,!'..

,:..
lll,;-.-1 .,
Hinds Circuit Page 1 of2

Motions
25Cl1:14-cv-09004-JAW Ex. Rel. Circuit Clerk~ Judge Weill Admin Book

Mississippi Electronic Courts

Hinds County Circuit Court

Notice of Electronic Filing

The following transaction was entered by Waide, Jim on 6/29/2016 at 4:23 PM CDT and filed on
6/29/2016
Case Name: Ex. Rel. Circuit Clerk- Judge Weill Admin Book
Case Number: 25CI1: l 4~cv~09004-JAW
Filer: ZACK WALLACE
Document Number: 23

Docket Text:
MOTION Motion to Be- Provided Transcripts of Sealed Proceedings and Copies of
Documents Flied In Sealed Proceedings by In Re ZACK WALLACE (Attachments:# (1)
Exhibit A Administrative Order of Immediate Temporary Disqualification of the Hinds
Co District Attorney,# (2) Exhibit B -Affidavit) (Walde, Jim)

25Cll:14-cv-09004-JAW Notice has been electronically mailed to:

Jim D Waide, III waide@waidelaw.com, jwaide@waidelaw.com, kdempsey@waidelaw.com

25Cll:14-cv-09004.JAW Notice will be delivered by other means to:

25Cll:14-cv-09004-JAW Parties to the Case:

The following document(s) are associated with this transaction:


Document description:Main Document
Original filename:00300972.PDF
Electronic document Stamp:
[STAMP dcecf'Stamp_ID=I090522767 [Date=6/29/2016] [FileNumber-825418-0]
[56dc0f5199d7d67d4d79ccdcl 118dl347d672adea0f97117cea68b087d699d5d85fc
07dc8ae641557f271cee097c8e1049ec551282b265be6784e5e09cfct73c]]
Document description:Exhibit A - Administrative Order oflmm.ediate Temporary Disqualification of
the Hinds Co District Attorney
Original filename:00300973 .PDF
Electronic document Stamp:
[STAMP dcecfStamp_ID= 1090522767 [Date=6/29/2016] [FileNumber-825418-1]
[3e561069ab21030df888f917d43f4fcb0e4Sa6fc478c14bff0652c01ld3ceb5Se46b
cae065a9d28b8ccd200d0b60d006de34alclcdc8bce5e7b688196756d39a]]
Document description:Exhibit B - Affidavit
Original fllename:00300974.PDF
Electroni~ document Stamp:

https://hinds.circuit.mec.ms.gov/cgi-bin/Dispatch.pl?255750522073571 6/29/2016
Page 2 of2
. "Hinds Circuit
' ""'

[STAMP dcecfStamp_ID=1090522767 [Date=6/29/2016] [FileNumber-825418-2]


[44c52516fd64648f04t78d2578803a2953057a4f5180184454e87329898c293650a9
8e7flb8b95ec67e87e602pd8b99ecb614b56e4fd7cad159d863864cc362f]]

https://hinds.circuit.mec.ms.gov/cgi-bin/Dispatch.pl?255750522073571 6/29/2016
;:~,
'i,\-.
Case: 25Cll:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 1 of 6

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


HINDS COUNTY, MISSISSIPPI

IN RE: HINDS COUNTY DISTRIF I L E D


ATTORNEY
JUN 2 3a&iL ACTION NO. Ji- 'fOt)if..
ZACK WAUACE. QRCUIT CLERK
81.--_ _ _ _ _ _ _ _.c.

ADMINISTRATIVE ORDER OF IMMEDIATE TEMPORARY DISQUALIFICATION

OF THE HINDS COUNTY DISTRICT ATTORNEY1

BEFORE THE COURT is the unfortunate fact that the Hinds County District Attorney

has been arrested for criminal charges. Given the fact that the charges allege serious incidents of

improper, unlawful and unethical use of the Office of the Hinds County District Attorney by the

district attorney himself and considering that the charges relate to pending cases and to actions

before the Hinds County Grand Jury including improperly "using the power of the grand jury to

pressure" judicial action the Court finds that the interests of justice require as follows:

While the district attorney, and all citizens, are entitl.ed to the presumption of innocence,

the district attorney's status as a public official and the undersigned's duty to uphold the

independence and integrity of the judicial system requires the administrative action ordered

herein. The district attorney faces at least six separate criminal charges alleging improper use of

his office. Thus, the undersigned finds that pending final resolution of those charges, temporary

administrative actions are necessary in light of the specific nature of the allegations against the

district attorney and based upon the documentation filed in support thereof. See June 22, 2016

Affidavit and Warrant, 25C01:16-cr-624. Pursuant to Miss. Code Ann. 97-11-3, Mississippi

law provides that a district attorney shall not "in any manner, consult, advis~, counsel, or defend,

I
Per Miss. Code Ann. 25-31-2 I: "If, al the time of impaneling the grand jury in any circuit c~~~ the district
attorney be absent or unable to perfonn his duties or, if after impaneling of the grand jury, the district attorney be
absent or unable to perfonn his duties or be disqualified, the court shall forthwith appoint some attorney at law to aci
for the state in the place of the district attorney during his absence or inability or disqualification, and the person
appointed shall have the power to discharge all the duties of the office during the absence or inability or
disqualification of the district attorney... "

I B
l

Case: 25Cll:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 2 of 6


within this state, a person charged with a crime or misdemeanor or the breach of a penal statute."

Miss. Code Ann. 97-11-3. If convicted of consulting with a criminar" defendant, a district

attorney shall be filed and "removed from office." Id. (emphasis added). In Mississippi, district

attorneys are elected officials who serve as the chief criminal prosecutor and public officer of

their respective judicial districts. Mississippi law prescribes the duties of the district attorney to

"represent the state in all matters coming before the grand juries of the counties within his

district and to appear in the circuit courts and prosecute for the state in his district all criminal

prosecutions and all civil cases in which the state or any county within his district may be

interested." Miss. Code. Ann. 25-31-11.

District attorneys, as public officers, are also su};>ject to the Section 175 of the Mississippi

Constitution, which provides: "All public officers, for willful neglect of duty or misdemeanor in

office, shall be liable to presentment or indictment by a grand jury; and, upon conviction1 shall

be removed from office, and otherwise punished as may be prescribed by law." Miss. Const

175. Just as the district attorney is liable for any willful neglect of a duty of his office~ so are

circuit judges who willfully neglect the judicial office, including difficult judicial administrative

responsibilities. See Canon 3(C), Mississippi Code ofJudicial Conduct (A judge shall diligently

discharge administrative responsibilities "without bias or prejudice and maintain professional

competence in judicial administration ... "). Based upon the nature of the criminal charges

against the Hinds County District Attorney, which involve alleged abuses and neglect of duties

of the public office of district attorney such as consulting and aiding criminal defendants with

current pending indictments in Hinds County, the Court finds it necessary to issue a finding that

Hinds County District Attorney Robert Shuler Smith is hereby disqualified from participating in

the prosecution of any criminal case or proceeding on the undersigned's docket.2 Given the

serious implications that the charges have upon the office of the Hinds County District Attorney

2
The Wldersigned does not intend, in any manner, to extend this ruling to the dockets of any other Hinds County
Circuit Judge.
2.
' ' . Case: 25Cll:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 3 of 6
as a whole, this Court finds that temporary rf?medial action is necessary in order to ensure that

the integrity of the undersigned's extensiye criminal docket is not compromised. This order of

disqualification is issued pursuant to Cap.on 3 of the Code ofJudicial Conduct governing judicial

administrative responsibilities, and it is a temporary finding of disqualification, pending the

outcome of the criminal charges pending against the district attorney.

Grand juries co~duct lawful _criminal investigations and issue felony indictments upon

finding a true bill. When the indictment is returned to and received by the circuit court, the court

acquires jurisdiction of the parti~ular case, and the "functions and powers of the grand jury as to

the indictment so returned are ended ...." Fields -v. State, 25 So. 726, 727 (Ala. ~899). The

indictment then becomes a pending case on the court's docket, and the court has the inherent

power and duty to control, manage, and dispose of the case. Mitchell -v. Parker, 804 So.2d I 066,

1072 (Miss.App.2001) ("A trial court has inherent power to manage its docket and protect the

integrity ofthe judicial process."; Harrington v. State, 336 So.2d 721, 724 (Miss. 1976) ("The

trial judge, not the district attorney, has control of the docket."). In a sincere effort to "protect

the integrity of the judicial process" from any additional perceived impropriety, in concert with

the aforementioned finding related to criminal proceedings before the undersigned, this Court

further finds that the Hinds County District Attorney Robert Shuler Smith shall be temporarily

disqualified from any and all participation, either directly or indirectly, in any grand jury

proceedings in Hinds County.

This additional temporary disqualification is made necessary by two central facts. First,

the state constitutional provision cited herein provides that the District Attorney may be '
presented to the grand jury concerning his actions and inactions in office, creating an

unavoidable conflict of interest between the District Attorney and the grand jury. Second and

even more significantly, sealed proceedings in Cause Nos. 251-16-26 and more recently in 251-

16-355 and 251- 16-543, support this finding disqualifying the district attorney from all

3
I , I

... ).__
Case: 25Cll:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 4 of 6
proceedings and decisions regarding the grand jury. Based upon the extensive findings of a

sealed report by Special Master Amy Whitten and a Sealed Order of Senior Circuit Judge Tomie

Green, the district attorney has been engaged in improper use and abuse of the sacred grand jury

process.3 Despite a clear ruling requiring regularity in the grand jury process, 4tbe improprieties

have continued very r~cently, according to sealed filings submitted.earlier this week. The

undersigned simply cannot ignore the fact that the district attorney is taking actions consistently

contrary to the sacrosanct legal purpose of the grand jury. Accordingly, the undersigned finds

it necessary, under these unusually exigent circumstances, to disqualify the district

attorney from all participation and knowledge in the grand jury process. This includes a

prohibition from participation by proxy through directing any district attorney staff

members. Due to the very confidential nature of the grand jury process, participation by the

district attorney while facing charges of consulting with indicted defendants, would further erode

the public's confidence in the system of justice and would protect the district attorney from any

additional accusations related to grand jury improprieties. The district attorney's participation in

the grand"jury while this conflict of interest exists would risk taint and invalidation of any proper

a~t made by the grand jury and further jeopardize the secrecy of the proceedings. 5

Importantly, district attorney staff members are not disqualified by this Order, either

concerning pending cases on the undersigned's docket or concerning grand jury matters, unless

3
"[P)ublic disclosure of matters presented to the grand jury is an issue of great concern and actions contrary to the
strict secrecy requirements [raise] serious ethical questions." Ex Parte Jones County Grand Jury, First Judicial
Dist. v. Pacific, 105 So.2d 1308, 1315 (Miss. 1997); See also URCCC 7.04; Miss. Code Ann. 97-9-53.
4
The district attorney elected not to seek appellate review of the sealed order, which clearly defined and upheld the
proper function and role of the grandjw-y. Accordingly, he has continued to act affirmatively and inconsistently
with that final order despite being legally bound by the ruling.

s On June 22, 2016, just hours his arrest. the district attorney issued a press release wherein he improperly divulged
the identity of a witness whom he claims was subpoenaed to testify before the grand jury. This unlawful public
disclosure further supports the temporary action taken by the court herein. Finally, the court notes that statutory
authority exists for the grand jury to be discharged at any time, in the court's discretion. Rather than ordering a
discharge (which would prevent the grand jury for conducting legitimate business related to the Hinds County
criminal justice system), the undersigned fowid it less disruptive to the defendants who have been bound over to the
grand jury for presentation of indictment to simply enter this temporary disqualification of the district attorney to
protect the integrity of the process.
4
I ,I

Case: 25Cll:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 5 of 6


their actions are taken in concert or at the behest of the district attorney. However, the assistant

district attorneys are specifically cautioned that any grand jury action or proceeding must relate

to a lawful grand jury investigation and not made to serve in retaliation, in any manner, for the

district attorney's recent criminal charges and arrest. "Grand juries are not licensed to engage in

arbitrary fishing expeditions, nor ~ay they select targets of investigation out of malice or an

intent to harass." US. v. R. Enterprises, Inc., 111 S.Ct. 722, 727 (1991).

IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED that the-Hinds

County District Attorney is hereby disqualified per Miss Code Ann. 25-31-25, as ordered herein.

Though the disqualification does not extend to district attorney staff members, the undersigned

will defer to Senior Circuit Judge Tomie Green as to whether the appointment of a temporary

acting district attorney per 25-31-25 is necessary.

IT IS FURTHER, HEREBY ORDERED AND ADJUDGED that the circuit clerk shall

publish a copy of this Order to the District Attorney, all Assistant District Attorneys and staff

members via personal service and via email and a copy shall be placed on the door of the grand

jury room immediately upon filing. Toe circuit clerk shall also provide a copy of the order to

each currently empaneled grand juror, either in person if in session or via mail if discharged, and

file a certification confirming the personal service of the district attorney and all district attorney

staff members and confirming service of each grand juror. Finally, the circuit clerk shall provide

a copy of this Order to the other circuit court judges and to the Hinds County Sheriff for

enforcement, particularly to the Court Bailiff currently attending the grand jury and to any other

Bailiff who the Sheriff designates. The circuit clerk may request assistance from the Hinds

5
I ,1

Case: 25Cll:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 6 of 6


County Sheriff to safely and eff~ctively accomplish the personai ~ervic:e ~equirements ordered

herein. 6

et
SO ORDERED AND ADJUDGED this the _Z2day of June, 2016.

.. cJ. . .
~ . .

~CUIT~~
. . '/"')

6
If the distrlct attorney or any staff member attempts to violate.this orderofthe Court, the.Sherifhhall take
immediate action to enforce.this order and the securityofthe courthouse ilicluding removing the district attorney
from the grand jury meeting room, if necessary,
6
... ft'

:\,

IN THE.CmCUIT COURT OF HINDS COUNTY, MISSISSIPPI

INRE: HINDS COUNTY DISTRICT ATTORNEY


CIVIl., ACTION NO.: 14-9004

MOTION TO BE PROVIDED TRANSCRIPTS OF SEALED PROCEEDINGS


AND COPIES OF DOCUMENTS FILED IN SEALED PROCEEDINGS

Robert Smith (hereinafter "Smith"), through his undersigned attorney, requests this Court to

order the court reporter to furnish his attorney with copies of transcripts of all sealed hearings and

to order the circuit clerk to furnish copies of all papers filed in the sealed hearings. In support of his

motion, Smith shows the following:

1. This Court has entered an Administrative Order of Immediate Temporary

Disqualification of the Hinds County District Attorney attached hereto as Exhibit "A." This Order

references sealed proceedings in Cause Nos. 251-16-26, 251-16-355, and251-16-543. See Exhibit

"A," p. 3. Smith believes that Cause Nos. 251-16-26, 251-16-355, and 251-16-543 include:

A. Sealed hearing before Judge Weill regarding an


investigation of Smith by the Attorney General, which
was held.on or about April 4~ 2016;

B. Sealed hearing before Judge Weill held on June 21,


2016, wherein the Court, on request of the Attorney
General; suppressed subpoenas issued by the District
A~rney;and

C. Sealed hearing before Special Master Amy Whitten


held in January 2016 entitled, "In Re: Grand Jury
Proceedings" and concerning quashing of subpoenas
issued by Robert Smith.

EXHIBIT
I f!
2. Besides the Adminis1rative Order referenced above, the Attorney General is

criminally prosecuting Smith in ~e County Court of Hinds County under the affidavit attached

hereto as Exhibit "B."

3. Smith believes that the sealed transcripts contain evidence which is favorable to him.

"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment ...." Brady v. Maryland,

373 U.S. 83, 87 (1983).

4. Exhibit "A" also relies upon a sealed order of Senior Circuit Judge Tomie Green and

a sealed_report of Special Master Amy Whitten.. Se.e Exhibit "A," p. 4, The Sixth and Fourteenth

Amendments to the Uniwd States Constitution require that Smith know "the nature of the charge"

against him. Therefore, Smith is also entitled to a copy of the sealed Order of Judge Green and the

sealed report of Special Master Amy Whitten.

ACCORDINGLY, Defendant Smith requests that this Court direct the court reporter to

furnish his attorney, Jim Waide, with the transcription of all sealed proceedings concerning him,

including all sealed proceedings in Cause Nos. 251-16-26, 251-16-355, and 251-16-543, and

including:

A. Hearing regarding an investigation of Smith by the Attorney General


which was held on or about April 4, 2016;

B. Hearing held on June 21, 2016, wherein the Court, on request of the
Attorney General suppressed subpoenas issued by the District
Attorney; and

C. Hearing held before Special. Master Amy Whitten regarding


suppression of subpoena by Smith.

2
Smith also requests the Court to direct the circuit court clerk to furnish defense counsel, Jim

Waide, with all papers filed in Cause Nos. 251-16-26, 251-16-355, and251.;16-543, including the

sealed report of Special Master Amy Whitten anci sealed Order of Judge Green.

Respectfully submitted this the 29th day of June, 2016.

ROBERTSMITH,Derendant

By: Isl Jim Waide


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

ATTORNEYSFORROBERTSJMI1H

3
CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk ofthe Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Attorney General Jim Hood


Carroll Gartin Justice Building
450 High Street,
Jackson, Mississippi 39201
jhood@ago.state.ms.us
Assistant Attorney General Stanley Alexander
Carroll Gartin Justice Building
450 High Street,
Jackson, Mississippi 39201
salex@ago.state.ms.us.. _, ........ - .
Honorable Jeff Weill, Sr.
Circuit Court Judge
P0Box22711
Jackson, MS 39225
weillslawclerk@co.hinds.ms.us
Tesa Barrett, Court Reporter
P0Box22711
Jackson, Mississippi 39225

SO CERTIFIED, this the 29th day of June, 2016.

ls/Jim Waide
JIM WAIDE

4
case: 25Cll:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 1 of 6

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


HINDS COUNTY, MISSISSIPPI

IN RE: KINDS coUNTY nxsTRip:


ATTORNEY
1L e
.
c
JUN 2SaAth, AcnoNNo.
ZACK WALLACf, CIRCUIT CLERK
14- t:/otJ'-/
B .C.

ADMINISTRATIVE ORDER OF IMMEDIATE TEMPORARY DISQUALIFICATION


OF THE BINDS COUNTY DISTRICT AITQRNEY1

BEFORE THE COURT is the unfortunate fact that the Hinds County District Attorney

has been arrested for crmunal charges. Given the fact that the charges allege serious incidents of

improper, unlawful and unethical pse of the Office of the Hinds County District Attorney by the

district attorney himself and constderlng that the charges relate to pending cases and to actions

before the lfmds County Grand Jury including improperly "using the power of the grand jury to

pressure" judicial action the Court finds that the interests ofjustice require as follows:

While the district attorney, and all citl~ are enti~ed to the presumption of innocence,

the district attorney's status as a public official and the undersigned'~ duty to uphold the

independence and integrity of the judicial system requires the administrative' action ordered

herein. The district attomey faces at least six separate criminal charges alleging improper use of

his office. Thus, the undmigned finds that pending :final resolution of those, charges, temporary

administrative actions arc necessary in light of~e specific nature of the allegations against the.

district attorney and based upon the docwnentation filed in support thereof. See June 22, 2016

4/ftdavit and Warrant, 25C01;16-cr-624. Pursuant to Miss. Code AmJ. 97-11-3t Mississippi

law provides that a district attorney shall not "in any manner3 consult, advise, counsel, or defend,

I Per Miss. Code Ann, 2S-3 l 21: "It at the time of lmpanellag the grand jury in any oil'cult court. the district
attorney be absent or unable to perform his duties or, if after impaneling or the grand jury, tho district attomsy be
absent or unable to perform his duties or be disquallflcd, the coort shall forthwith appoint some attorney at law to aci
for the state in the place of the distrlot attomey during his absence or inability or disqualification, and the person
appointed shall have the power to discharge Bll t~ duties of the office during the absence or iPabllity or
disqualification oftbe dilttict attomey."
case: 25Cl1:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 2 of 6
within this sta~. a person charged with a crime or misdeD;1eanor or the breach of a penal statute.,,

Miss. Code Ann. 97113. If convicted of coosnlting with a criminai' defendant, a district
attorney shall be filed and "removedfrom officet Id. (emphasis added). In Mississippi,,clistrict

attorneys are elected officials who serve as the chief criminal prosecutor and public officer of

their respective judicial districts. Mississippi law prescribes the duties of the district attorney to

"represent the state in all matters coming before the grand juries of the counties within his

district and to appear in the circuit courm and prosecute for the state in his district all criminal

prosecutions and all civil cases in which the state or any county within his district may be

interested.t Miss. Code, Ann. 25-31-11.

. . .P!s~~! ~~~-~~S. a~ :pu.b~~-~~c~fS. .~~-~SC? ~lll?,j_~~tto -~~ ~e-~011 ~ 75. 9f ~~ ~~~ssippi


Constitution, which provides: "All public officers. for willful neglect of duty or misdemeanor in

office, shall be liable to presentment or indictment by a grBDd jury; and, upon conviction, shall

be removed from office, and otherwise punished as may be prescribed by law." Miss. Const.

175. Just as the district attorney is liable for any willful neglect of a duty of his office, so are

circuit judges who willfully neglect the judicial office. including difficult j_udicial administrative

responsibilities. See Canon 3(C), Mississippi Code ofJudicial Conduct (Ajudge shall diligently

disoharge administrative responsibilities "without bias or prejudice and maintain professional

competence in judicial administration .....). Based upon the nature of the criminal charges

against the Hinds County Distrlct Attorucy1 which involve alleged abuses and neglect of duties

of the public office of district attomcy such as consulting and aiding c:riminal defendants with

current pending indictments in ffinds County, the Court finds it necessary to issue a finding that

Hinds County District Attorney Robert Shuler Smith is hereby disqualified from participating in

the prosecution of any criminal case or proceeding on the undersigned's doc:ket. 2 Gi;en the

serious implications 1hat the charges have upon the office of the Hinds County District Attorney

,. The undenilgned does not intend, in any manner, to extend this ruling to 1he dock~ of any other HJnds County
Circuit Judie.
2.
i

Case: 25Cl1:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 3 of 6


as a whole, this Court finds that temporary r~al actio11 is DCCCSsary in order 10 ensure that

the integrity of the undersigned's extensiye criminal docket is not conq,romised. This order of

disqualification is bslred pursuant to (on 3 of lhe Cade ofJudicial Conduct governing judicial

adininistratlve responsibilities, ~ it is a temporary finding of disqualification. pendingthe

outcome of the criminal charges pending against the district attorney.

Grand juries conduct lawful .criminal investigations and issue felony indictments upon

finding a true bilL When the indictment is retmned to and received by the circuit court. the court

acquires jurisdiction of the partu:ular case, and the "functions and powers of the grand jury as to

the indictment so retmned are ended . , ." Field, v. State, 25 So. 726, 727 (Ala. ~899). The

indictment then becomes a pending case on the court's docket, and the court has the inherent
power and duty to control, macag~ and dispose of the case, Mitchell v. Parker, 804 So.2d l 066,

1072 (Miss.App.2001) C'A trial court bas inherent power to manage its docket and protect the

Integrity ofthe Judicial process."; Harrington v. State, 336 So.2d nt, 724 (Miss. 1976) (' 1The .

trlaljudge, not the district attomey. has control oftbedocket.''). In a sincere effort to "protect

the integrity of the judicial proces~ from any additional perceived impropriety. in concert with

the aforementioned finding related to criminal proceedings before the undersigned, this Court

further finds that the Hinds County District Attorney Robert Shuler Smith shall be temporarily

disqualified from any and all participation, either directly or indirectly, in any grand jury

proceedings in Hinds C.Ounty.

This additional temporary disqualification is made necessary by two central facts. First,

the state constitutional provision cited herein provides that the District Attorney may be

presented to the grand jury concerning his actions and inactions in office. creating an

unavoidable conflict of interest between the District Attorney and the pod jury. Second and

even more significantly, .sealed proceedings in Cuuse Nos. 251-16-26 and more recently in 251-

16--355 and 251- 16-543, support this finding disqualifying the district attorney from al[

3
case: 25Cl1:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 4 of 6
proceedings and decisions regarding the grand jury. Based upon the extensive findinis of a

sealed report by Speoial Master Amy Whitten and a Sealed Order of Senior Circuit Judge Tomie

Green, the district attorney bas been engaged in improper use and abuse of the sacred grand jury

process.3 D ~ a clear ruling requiring regularity in the grand jury process, 4the improprieties

have continued very 1'$'Cently, according to sealed filings submitted.earlier this week. The

undersigned simply cannot ignore the fact that the district attorney Is taking actions consistently

contrary to the sacrosanct legal purpose of the grand jury. Accordingly, the undersigned ftnds

it necessary, under these unwmally exigent circumstances, to disqualify tbe district

attorney from all participation and knowledge in the grand Jury process. This includes a

prohibition from participation by proxy through directing any district attorney staff

members. Due to the very confidential nature of the grand jury :process, participation by the

district attomey wbllc facing charges of consulting with indicted defendants, would further erode

the public's confidence in the system of justice and would protect the district attorney from any

additional accwmtions related to grand jury improprieties. The district attomey' s participation in

the grand'jury while this conflict of interest exists would risk taint and invalidation of any proper

a~t made by the grand jury and further jeopardize the secrecy of the proceedings.'

Importantly, district attorney staff members are not disqualified by this Order, either

concerning pending cases on the undersigned's docket or concerning grand jury matters, unless

3 "{P]ublic disclosure of mattel'II presented to tho grand jury is an issue of great concorn and actions contrary to the
strict sccrocy n,qu!Rm~ts [raisa) serious ethical quostl0111." Ex Porte Jone8 Crnml)' Grmrt! .!try, First Judicial
Dl3t. v, Pacific, 105 So.2d 1308, 1315 (Miss. 1997); See also URCCC 7.04; Mias. CodoAnn. 97-9~53. '
4
The diitmt attomey ISlocted not to .soak appellate reviow ofthe nalod ordor, whlcb clearly defined and upheld the
propor !Unction and role of tbi: grlDCI jury. Accordingly, ho has continued to act affirmatlvely and inconsistently
with that final order despite being logally bouo.d by the ruling.
$ On June 22, 2016, just hours his arrest. the dbtrii:t aacmey fssuad a press release whmin ho improperly divulged
the identity of a witness whom he clahns was subpo c11aod to tesllty before tha grand jury. This unlawful publi;
dlscloiure funhcr suppo11s the tempOlcll')' action taken by the court herein. Fmally, the court notes that Sta1Gtory
authority exists for CM grand jury to be discharged at auy timo, in Cho court's diawetlolL Rather than ordering a
discharge (which would prevent the grand jury for conducting legitimate business rei.d to the Hinds COUnty
crlmimdjustlce s)'Slcm), the undenigmd found it less disruptive to the defendants who have been bound over to the
grandj\.ll'Y for presentation of Sndlctman.t to simply enter this tcmpomy disquallftcation of the district attomoy to
protect tbo Integrity of the process.
4
case: 25Cl1:14cv-09004-JAW Document#: 20 Filed: 06/23/2016 Page 5 of 6
their actions are taken in concert or at the behest of the district attorney. However, the assistan.t

district attorneys are specifically cautioned that any grand jury action or proceeding mmt relate

to a. lawful grand jury investt&ation and not made to serve in retaliation, in any manner, for the

district attorney's recent criminal charges and arrest. "Grand juries are not licensed to engage in

arbitrary fishing expeditions, nor ~Y they select targets of investigation out of malice or an

intenttoharass."' U.S. v. R. Enterprises, Inc., 111 S.Ct. 722, 727 (1991).

IT IS, THEREFORE, HEREBY O~ERED AND ADJUDGED that the.Hinds

County District Attorney is hereby disqualified per Miss Code Am. 25-31-25. as ordered herein.

Though the disqualification does not extend to dlstrict attorney staff members, the midersigncd
will defer to Senior Circuit Judge Tamie Green as to whether the appointment of a tempomy

acting district attorney per 25-31-25 is necessary.

IT IS FURTHER, HEREBY ORDERED AND ADJUDGED that the circuit clerk shall
publish a copy of this Order to the District Attorney, all Assistant District Attorneys and staff

members via personal service and via email and a copy shall be placed on~ door of the grand

jury room immediately upon filing. The.circuit clerk shall also provide a copy of the order to

each currently cmpa,neled grand juror, either in person if in session or via mail if discharged, and

file a certification confirmina the personal service of the district attorney and all district attorney

staff members and confirming service of each grand juror. Finally, the circuit clerk shall provide '

a copy of this O~er to the other circuit court judges and to the Hinds County Sheriff for
enforcement, particularly to the Court Bailiff currently attending the grand jury and to any other

Bailiff who the Sheriff' designates. The circuit clerk may request assistaDoe from the Hinds

s
case: 25Cl.1:14-cv-09004-JAW Document#: 20 Filed: 06/23/2016 . Page 6 of 6
County Sheriffto safely and eff'e.ctively aa:omplish the personal s.orviqe ,:equmcn1s qrd.cred

herein. 6

. el.
SO ORDERED AND .ADJUDGED this the ~day of June, 2016,

~ultt./J-IR.CUIT GE

6
If the dislrlct attorney or qi statf mmnb'er attempts to vlolate.dtls order of1hc Court, thc.Shedff'shall cake
lmniecliite aatton to entbrce.dus order and the socorlt)"oflhe courthouse Including removing the district anbmey
lro111 tho gtandjury ~ting room, if necessary,
Case: 25C01:16-cr-00624-MVP Document#'. 1 Filed: 06/22/2016 Page 1 of 3

FI LED
AFFIDAVIT JUN 22 2018
ZACJ< WALLACE:. CIRCUrI'CLl:RK

STATE OF MISSISSIPPI BY tt
COUN1Y OF HINDS
FIRST JUDICIAL DISTRICT /6-6~fl
Personally appeared before the tmdersigned Justice Court Jud~~ Leland McDivi~ criminal
investigator wi~ tho office of the Mississippi Attomey-Oeneral, who being duly-sworn, deposes
and makes affidavit on 'information and belief that ln the First Judicial District.ofHinds County,
Mississippi
COUNT I

Robert-Shuler Smith on or about the 1-0lh day ofJune, 20 I 6; 'Mlile acting in his capacity -as the
District.Attorney of-the 7th Circuit Court Distriot, Mississippi, did willfully and unlawfully
consult. advise, counsel and defend Darnell Turner, who was then and there charged in the
Circuit Court of the First Judicial District of Hinds County with the crimes of aggravated assault
le e d ~ n to on Dennis Sweet who is the attom for
Darnell Turner, the attached e-mat1s (which are incorporated by reference) of conversations t
took place between the State, District Attorney, and the Court regarding matters.that had been
previously sealed by the Court in cause.-number 16-239, all of-this was done in order to consult,
.advise counsel or defend Damcll 'Tumer by and through attorney Dennis Sweet ill against the
state's pending charges, this against the peace, dignity and laws .of the State of ~ssissippi;
.:.
See Exhibit I: Motion to Dismiss.
Exhibit 2: Motion to Unseal Sealed Order and all Discoverable Q;lmmunications

CHARGE: District Attorney not t~ advise, counsel, consult, or .defend criminals [97-11-3)

COUNTil

Robert Shuler Smith on or about the 2~ day of May, 2016, while acting .in his capacity as the
District Attorney of 7111 Circuit Court District, Mississippi, did willfully and unlawfully consult,
advise-and counsel ChristQpher Butler, who was~ and there charged in th(? County Court of
the First Judicial District of Hinds County in case number 16-50-AG with the crimes of
embezzlement and wire fraud, at the.Hinds County Jail outside the presence of Butler's attorney
on May 26, 20.16 from 8:56 a.m. to 09: 13 a.m., against the peace, dignity and laws oftbe State of
Mississippi;

Sec Exhibit -1: Sheriff's Department Jail Visitation Log.

). CHARGE: District Attorney not to advise, counsel, consult, or defend criminals [97-11-3]
Case: 25C01:16-cr-00624-MVP Document#". 1 Filed: 06/22/2016 Page 2 of 3

COUNT ill

Robert Shuler Smith on or about March 2 l, 2016, while acting in bis capacity as the District
Attorney 7th Circuit Court District of, Mississippi, did willfully and lllllawful~y consult, advise,
cotmSel acd defend Christopher Butler, who was then and there charged in the County Court of
the First Judicial District of Ifmds County in case number 16-SOAG with the crimes of
Embezzlement and Wire Fraud, by delivering to Sanford Knott. who was at that time Mr.
Butler's attorney, the attached letter dated March 21 ll 2016 (which is incorporated by reference),
in which Mr. Smith advises attorney .Knott ofvatjous ways to attack the state's pending case
against Mr. Butler; thereby, provi~i~g advice, counsel, and defense to Christopher Butler, by and
through his attomey, against the peaoe, dignity and.laws of the State of Mississippi;

See Exhibit 1; Letter dated Maicb 21, 2016 to Attorney Sanford I<~?tt

CHARGE: District Attorney not to .advise, consult, cotinsel, or defend criminals [97-11-3]

COUNT IV

Robert Shuler Smith, on or about May 9, 2016, while acting in his capacity as the District
Attorney of 7u, Circuit Court District, Mississippi. did willfully and unlawfully consult, BQvise,
counsel, or defend Christopher Butler, who was then and ~ere charged m"the County Court of
1
J the P.is:llt :Jttdioial Bistl'le~ ef Hin&Ge,aty ifHase &1BB1Jerii $0. AQ mitlMhc,.c;imca of
Embezzlement and Wire Fraud at the Hinds County .Jail, outside the presence of Mr. Butler's
attomey on May 9, 2016, against the peace, dignity and laws of the State of Mississippi;
. .

See Exhibit 1: Sheriff's Department Jail Visitation .Log.

CHARGE: District Attorney not to advise. counsel, consult, or defend criminals [97-11-3]

COUNTY

Robert Shuler Smith on or about.and.between the dates ofJanuary 14, 2016 and June 20, 2016,
while acting "in his capacity .as the District Attorney of the ?'h Ciret Court _Distrlot, "Mississippi,
did willfally and unlawfully.consult, advise. counsel and defend Christopher Butler, who vvas
then.and there charged in the County Court.of the "First Judicial District ofHinds County in case
number 16-50-AO with the crimes of embei.zlement and wire fraud, by meeting with the family
of the defendant Christopher Butler, referring to Butler as "bis client", attempting to retain
defense counsel for defendant Butler and working w_ith defense counsel to obtain the release of
defendant Butler from the Hinds County.Jail, against the peace, dignity and laws of the State of
Mississippi;

CHAROE: District Attorney not to advise, counsel, consult, or defend criminals [97-11-3]

)
j ':.i>o"'

Case: 25C01:16-.cr..00624"MVP Document#: 1 Filed: 06/22/2016 Page 3 of 3

\
I :-~i<.\--rffiljr.1i);
~.r'Ji!' ~:.

......

.: . ..
. ' .1
~f,,ii

cP. .
ill:;,-
~
,,:. ,.~. . . .

,:..
~ .........
Hinds Circuit Page 1 of2

Motions
25Cl1:14-cv-09004-:JAW Ex. Rel. Circuit Clerk- Judge Weill Admin Book

Mississippi Electronic Courts

Hinds County Circuit Court

Notice of Electronic Filing

The following transaction was entered by Waide, Jim on 6/29/2016 at 4:23 PM CDT and filed on
6/29/2016
Case Name: Ex. Rel. Circuit Clerk- Judge Weill Admin Book
Case Number: 25CI1: l 4-cv-09004-JAW
Filer: ZACK WALLACE
Document Number: 23

Docket Text:
MOTION Motion to Be Provided Transcripts of Sealed Proceedings and Copies of
Documents Flied In Sealed Proceedings by In Re ZACK WALLACE (Attachments: # (1)
Exhibit A - Administrative Order of lrnmediate Temporary Disqualification of the Hinds
Co District Attorney,# (2) E:xhlblt B -Affidavit) (Walde, Jim)

25Cll:14-cv-09004-JAW Notice has been electronically mailed to:

Jim D Waide , III waide@waidelaw.com, jwaide@waidelaw.com, kdempsey@waidelaw.com

2SCl1:14-cv-09004-JAW Notice will be delivered by other means to:

25Cll:14-cv-09004-JAW Parties to the Case:

The following document(s) are associated with this transaction:

Document description:Main Document


Original filename:00300972.PDF
Electronic document Stamp:
[STAMP dcecf'Stamp_ID=1090522767 [Date=6/29/2016] [FileNumbei=825418..0]
[56dc0f5199d7d67d4d79ccdcl118d1347d672adea0f97117cea68b087d699d.5d85fc
07dc8ae641557fl71cee097c8el049ec551282b26Sbe6784e5e09cfcf73c]]
Document description:Exhibit A - Administrative Order oflmmediate Temporary Disqualification of
the Hinds Co District Attorney
Original filename:00300973 .PDF
Electronic document Stamp:
[STAMP dcecfStamp_ID= 1090522767 [Date=6/29/2016] [FileNumbei=8254 l 8-l]
[3e561069ab21030df888f917d43f4fcb0e4Sa6fc478c14bff0652c01ld3ceb5Se46b
cae065a9d28b8ccd200d0b60d006de34alclcdc8bce5e7b688196756d39a]]
Document description:Exhibit B - Affidavit
Original ftlename:00300974.PDF
Electroni~ document Stamp:

https://hinds.circuit.mec.ms.gov/cgi-bin/Dispatch.pl?255750522073571 6/29/2016
. "Hinds Circuit
' \.,
Page 2 of2

[STAMP dcect'Stamp_ID=1090522767 [Date=6/29/2016] [FileNumber-825418-2]


[44c52516fd64648fl>4f78d2578803a2953057a4f5180184454e87329898c293650a9
8e7flb8b95ec67e87e602d8b99ecb614b56e4fd7cadl59d863864cc362f]]

https://hinds.circuit.mec.ms.gov/cgi-bin/Dispatch.pl?255750522073571 6/29/2016
IN THE COUNTY COURT OF IDNDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

vs. CRIMINAL ACTION NO.: 16-624

ROBERT SHULER SMIIB DEFENDANT

MOTION TO BE PROVIDED TRANSCRIPTS OF SEALED PROCEEDINGS


AND COPIES OF DOCUMENTS FILED IN SEALED PROCEEDINGS

Robert Smith (hereinafter ''Smith'), through his undersigned attorney, requests this Court to

order the court reporter to finnish his attorney with copies of transcripts of all sealed hearings and

to order the circuit clerk to finnish copies of all papers filed in the sealed hearings. In support of his

rmtion, Smith shows the following:

1. This Court has entered an Administrative Order of Immediate Temporary

Disqualification of the Hinds County District Attorney attached hereto as Exhibit "A." This Order

references sealed proceedings in Cause Nos. 251-16-26, 251-16-355, and 251-16-543. See Exhibit

"A,"p. 3. Smith believes that Cause Nos. 251-16-26, 251-16-355, and 251-16-543 include:

A. Sealed hearing before Judge Weill regarding an


investigation of Smith by the Attorney Generai which
was held on or about April 4, 2016;

B. Sealed hearing before Judge Weill held on June 21,


2016, wherein the Court, on request of the Attorney
Generai suppressed subpoenas issued by the District
Attorney; and

C. Sealed hearing before Special Master Amy Whitten


held in January 2016 entitled, "In Re: Grand Jury
Proceedings" and concerning quashing of subpoenas
issued by Robert Smith.

EXHIBIT
j
2. Besides the Administrative Order referenced above, the Attorney General is

criminally prosecuting Smith in the County Court of Hinds County under the affidavit attached

hereto as Exhibit "B."

3. Smith believes that the sealed transcripts contain evidence which is :favorable to him

"[T]he suppression by the prosecution of evidence :favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punislurent ...." Brady v. Maryland,

373 U.S. 83, 87 (1983).

4. Exhibit "A" also relies upon a sealed order of Senior Circuit Judge Tomie Green and

a sealed report of Special Master Amy Whitten See Exhibit "A," p. 4. The Sixth and Fourteenth

Amendments to the United States Constitution require that Smith know "the nature of the charge"

against him Therefore, Smith is also entitled to a copy of the sealed Order of Judge Green and the

sealed report of Special Master Amy Whitten

ACCORDINGLY, Defendant Smith requests that this Court direct the court reporter to

finnish his attorney, Jim Waide, with the transcription of all sealed proceed~ concerning him,

including all sealed proceedings in Cause Nos. 251-16-26, 251-16-355, and 251-16-543, and

including:

A Hearing regarding an investigation of Smith by the Attorney General


which was held on or about April 4, 2016;

B. Hearing held on June 21, 2016, wherein the Court, on request of the
Attorney General suppressed subpoenas issued by the District
Attorney; and

C. Hearing held before Special Master Amy Whitten regarding


suppression of subpoena by Smith.

2
Smith also requests the Court to direct the circuit comt clerk to finnish defense counsei Jim

Waide, with all papers filed in Cause Nos. 251-16-26, 251-16-355, and 251-16-543, including the

sealed report of Special Master Amy Whitten and sealed Order of Judge Green

Respectfully submitted this the 30th day ofJlllle, 2016.

ROBERT SMITH, Defendant

By: Isl Jim Waide


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

ATTORNEYS FOR ROBERT SMITH

3
CERTIFICATE OF SERVICE

This will certify that undersigned counsel fur Defendant has this day filed the above and
furegoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Attorney General Jim Hood


Carroll Gartin Justice Buik:ling
450 High Street,
Jackson, Mississippi 39201
jhood@ago.state.ms.us

Assistant Attorney General Stanley Alexander


Carroll Gartin Justice Building
450 High Street,
Jackson, Mississippi 39201
salex@ago.state.ms.us

Honorable JeffWeill, Sr.


Circuit Court Judge
PO Box22711
Jackson, MS 39225
weillslawclerk@co.hinds.ms. us

Tesa Barrett, Court Reporter


PO Box22711
Jackson, Mississippi 39225

SO CERTIFIED, this the 30th day ofJwie, 2016.

Isl Jim Waide


JIM WAIDE

4
. '

Patricia Nowlin

From: Patricia Nowlin


Sent: Wednesday, June 29, 2016 4:42 PM
To: 'weillslawclerk@co.hinds.ms.us'
Cc: Karen Dempsey
Subject: Robert Smith
Attachments: Robert Smith ltr to Judge Weill enclosing Order to receive sealed documents
(00300976).pdf; Robert Smith filed Motion to Be Provided Transcripts of Sealed
Proceedings (00300977).pdf; Robert Smith proposed Order Granting Smith's Motion to
Be Provided Transcripts (00300978).pdf

'\.- .

Judge Weill:

Please find atta hed a letter from Mr. Waide regarding Robert Smith, along with attachment, and a proposed Order.

If anything fur her is needed, please let us know.

Thank you.

Patricia Nowlin
Paralegal
Waide and Associates, P.A.
P. 0. Box 135 7
Tupelo, MS 38802
662-842-7324
662-842-8056 (fax)
pnowlin@waidelaw.com

EXHIBIT
I E
WAIDE & ASSOCIATES, P.A.
A'ITORNEYS AND COUNSELORS AT LAW

JIM WAIDE MAILING ADDRESS: S1REET ADDRESS:


RACHEL PIERCE WAIDE POSfOFFICE BOX 1357 332 NOKIH SPRING S1REET
RON L WOODRUFF TIJPELO, MISSISSIPPI 38802-1357 TIJPELO, MISSISSIPPI 38804-1357
IBLEPHONE: 662.8427324
FA~LE: 662842.8056
EMAlli waide@wajdelaw.com
Jtme 29, 2016
VIA REGULAR MAIL AND EMAIL: weillslawclerk@co.hinds.fi5.us
Honorable JeffWeill, Sr.
Circuit Court Judge
PO Box22711
Jackson, MS 39205

Re: Robert Smith

Dear Judge Weill:

I represent Robert Smith regarding the Administrative Order of Immediate Temporary


Disqualification of the Hinds County District Attorney and in the criminal charges pending against
him in County Court.

In order to contest your Order, and to defend the criminal prosecution, the defense needs
transcripts of all sealed proceed~ and all documents filed in the sealed cases.

Additionally, in order to know the ''nature of the charge" against Mr. Smith, we need a copy
of the sealed Order entered by Judge Green and a copy of the sealed report of Special Master Amy
Whitten

Accordingly, I am enclosing a copy of the Motion to Be Provided Transcripts of Sealed


Proceed~ and Copies of Documents Filed in Sealed Proceed~ and a proposed Order allowing
me to have copies of these documents. If you find the Motion to be well taken, would you be so kind
as to execute the enclosed Order and return to me in the envelope I have enclosed for your
convenience?

With kindest regards, I am

Sincerely,

Isl Jim Waide


Jim Waide
JDW/pbn
Enclosures
cc: Attorney GeneralJim Hood (jhood@ago.state.fi5.us)
Assistant Attorney General Stanley Alexander (salex@ago.state.ms.us)
' .'
Patricia Nowlin

From: Patricia Nowlin


Sent: Thursday, June 30, 2016 2:15 PM
To: 'mpriester@co.hinds.ms.us'
Cc: 'weillslawclerk@co.hinds.ms.us'; 'jhood@ago.state.ms.us'; 'salex@ago.state.ms.us'; Karen
Dempsey; 'roycesmithl@aol.com'; Jim Waide
Subject: State v. Robert Smith Case No. 16-624
Attachments: Robert Smith Motion to Be Provided Transcripts of Sealed Proceedings ...
(00301013).pdf

Dear Judge Priester:

Mr. Zack Wallace has informed me that the attached Motion to be Provided Transcripts of Sealed Proceedings and
Copies of Documents Filed in Sealed Proceedings cannot be filed in Hinds Circuit Court under Cause no. 14-9004, but
must be filed in your court.

In accordance with this instructions, I have filed the attached motion in your court.

With kindest regards


Jim Waide
{via)
Patricia Nowlin
Paralegal
Waide and Associates, P.A.
P. 0. Box 1357
Tupelo, MS 38802
662-842-7324
662-842-8056 (fax)
pnowlin@waidelaw.com

EXHIBIT

I F.
1
' .. .

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

vs. CRIMINAL ACTION NO.: 16-624

ROBERT SHULER SMITH DEFENDANT

SECOND MOTION TO BE PROVIDED TRANSCRIPTS OF SEALED PROCEEDINGS


AND COPIES OF DOCUMENTS FILED IN SEALED PROCEEDINGS

Robert Smith (hereinafter "Smith"), moves the Court to direct Hinds County Circuit Court

court reporter, TesaBarrett, to provide Smith with a transcriptofthehearingheld on March 30, 2016

in sealed Cause No. 251-16-120. In support of his motion, Smith shows the following:

1. On March 30, 2016, a hearing was held before Circuit Court Judge Jeff Weill, Sr.,

in which an Assistant Attorney General alleged that Smith was aiding criminal defendants. Over

Smith's objection, and upon request of an assistant attorney general, Circuit Court Judge Weill

sealed the hearing.

2. The hearing produced exculpatory evidence in the form of testimony by FBI Agent

Culpepper. "[T]he suppression of prosecution of evidence favorable to the accused upon request

violates due process .... " Brady v. Maryland, 373 U.S. 83, 87 (1983). The hearing is improperly

~ealed in violation of the guidelines ordered by the Mississippi Supreme Court in Gannett River State

Publishing Co. v. Hand, 571 So.2d 941, 945 (Miss. 1990).

ACCORDINGLY, Defendant Smith requests that this Court direct the court reporter, Tesa

Barrett, to furnish his attorney, Jim Waide, with the transcription ofthe proceedings concerning him

in Cause No. 251-16-120.

EXHIBIT

I G
l ' .. .
Respectfully submitted this the 15th day of July, 2016.

ROBERT SMITH, Defendant

By: Isl Jim Waide


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

ATTORNEYS FOR ROBERT SMITH

2
' c ...

CERTIFICATE OF SERVICE

This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk ofthe Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:

Attorney General Jim Hood


P. 0. Box 220
Jackson, Mississippi 39205
jhood@ago.state.ms.us

Assistant Attorney General Robert Anderson


P. 0. Box 220
Jackson, Mississippi 39205
rande@ago.state.ms. us

Assistant Attorney General Larry Baker


P. 0. Box220
Jackson, Mississippi 39205
lbake@ago.state.ms.us

Assistant Attorney General Shaun Yurtkuran


P. 0. Box220
Jackson, Mississippi 39205
syurt@ago.state.ms. us

Assistant Attorney General Patrick Beasley


P. 0. Box220
Jackson, Mississippi 39205
pbeas@ago.state.ms.us

Assistant Attorney General Stanley Alexander


P. O.Box220
Jackson, Mississippi 39201
salex@ago.state.ms. us

Honorable Jeff Weill, Sr.


Circuit Court Judge
PO Box 22711
Jackson, MS 39225
weillslawclerk@co.hinds.ms.us

3
Tesa Barrett, Court Reporter
P0Box22711
Jackson, Mississippi 39225

SO CERTIFIED, this the 15th day of July, 2016.

Isl Jim Waide


JIM WAIDE

4
Htnds Circuit Page 1 of 1

Motions
25C01:16-cr-00624 State of Mississippi v. SMITH

Mississippi Electronic Courts

Hinds County Circuit Court

Notice of Electronic Filing

The following transaction was entered by Waide, Jim on 7/15/2016 at 2:41 PM CDT and filed on
7/15/2016
Case Name: State of Mississippi v. SMITH
Case Number: 25CO 1: 16-cr-00624
Filer: Dft No. 1 - ROBERT SHULER SMITH
Document Number: 11.

Docket Text:
Second MOTION To Be Provided Transcripts of Sealed Proceedings and Copies of
Documents Filed in Sealed Proceedings by ROBERT SHULER SMITH. (Waide, Jim)

25C01:16-cr-00624-1 Notice has been electronically mailed to:

Jim D Waide, III waide@waidelaw.com, jwaide@waidelaw.com, kdempsey@waidelaw.com

Larry Gus Baker lgbsaag@cableone.net, lbake@ago.state.ms.us

2SC01:16-cr-00624-1 Notice will be delivered by other means to:

25C01:16-cr-00624-1 Parties to the Case:


SMITH, ROBERT SHULER (Defendant)
State of Mississippi (Plaintiff)

The following document(s) are associated with this transaction:

Document description:Main Document


Original filename:00301577.PDF
Electronic document Stamp:
[STAMP dcecfStamp_ID=1090522767 [Date=?/15/2016] [FileNumber-838947-0]
[03245dcf22d396b15a966c77a5b64c8c915a84669:f35abf745005:f36a3e4696e42cl
1087cabccbb9562b1587fc3938118032a03e51918ebdcb92899584ecf99f]]

https://hinds.circuit.mec.ms.gov/cgi-bin/Dispatch.pl?579035008467681 7/15/2016
" .s ..
05/2ij/20l5 TUB l6108 FAX [tlOOl/001

Robert Stnith

From! Amy nt thewhittongroup.corn <amy@thewhittengroup.com>


Sent Tuesdny, January 19, 2016 8:51 PM
To~ Robert mr 1; asnyc ago.state.ms.us; Greens Staff Attorney; David K. Fletcher Staff
Attorney for Judge Tomle Green; LouAnn Jackson
Subject: Proceedings ir, "Jn Re Grand Jury Proceedings" - all rel.ited correspondence c3nd
papeiworl( to be placed under seal. ... Confidential Communication to Counsel for the
Parties

my enI
601-259-3228
amy@thewhittengroup.com
WAIDE & ASSOCIATES, P.A.
ATTORNEYS AND COUNSELORS AT LAW

JIM WAIDE MAILING ADDRESS: STREET ADDRESS:


RACHEL PIERCE WAIDE POST OFFICE BOX 1357 332 NORTH SPRING STREET
RON L. WOODRUFF TUPELO, MISSISSIPPI 38802-1357 TUPEW, MISSISSIPPI 38804-1357
TELEPHONE: 662.842.7324
FACSIMILE: 662.842.8056
EMAIL: waide@waidelaw.com

July 15, 2016


VIA FEDERAL EXPRESS

Mississippi Supreme Court


450 High Street
Carroll Gartin Building
Jackson, MS 39201

Re: In Re: Robert Shuler Smith

Dear Sir/Madam:

Please find enclosed an Original and four (4) copies of Smith's Motions for Writ of
Prohibition and Mandamus with Respect to Order Stripping Him of His Duties as District Attorney.

I have also enclosed our office account check in the amount of $50.00, which is the fee for
filing this document.

Consistent with my Certificate, I have mailed a copy of same to all counsel.

With kindest regards, I am

Sincerely,

Jim Waide
JDW/pbn
Enclosures
cc: Jim Hood, Attorney General
Robert Anderson, SAAG
Larry Baker, SAAG
Shaun Yurtkuran, SAAG
Patrick Beasley, SAAG
Stanley Alexander, SAAG
Honorable Jeff Weill, Sr.
Tesa Barrett
Robert Smith
Case: 25CO1:16-cr-00624-MVP Document #: 10 Filed: 07/07/2016 Page 1 of 3

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. CAUSE NO. 25CO1:16-cr-00624-MVP

ROBERT SHULER SMITH DEFENDANT

RESPONSE TO MOTION TO BE PROVIDED TRANCRIPTS OF SEALED


PROCEEDINGS AND COPIES OF DOCUMENTS FILED IN SEALED PROCEEDINGS

COMES NOW, the Plaintiff, the State of Mississippi, by and through the Office of the

Attorney General, and submits this its Response to the Motion to be Provided Transcripts of

Sealed Proceedings and Copies of Documents Filed in Sealed Proceedings (Doc. 7), filed by

Defendant Robert Shuler Smith. In support of its Response, the State of Mississippi would show

the Court the following:

(1) At this point in time, the undersigned counsel for the State of Mississippi have no

knowledge or information regarding whether any transcripts of sealed proceedings

in Hinds County Circuit Court presently exist regarding the three cases mentioned

by the Defendant in his Motion, namely, Cause Nos. 251-16-26, 251-16-355 and

251-16-543.

(2) To the extent any such transcripts exist, the State of Mississippi has no objection

to the release of such transcripts to both the Defendant and the State of

Mississippi, provided the Court determines that they relate to this case and are

necessary and material to the Defendants preparation of his defense in this case.

Additionally, the State of Mississippi respectfully requests that any such

transcripts or documents which this Court orders produced pursuant to the


Case: 25CO1:16-cr-00624-MVP Document #: 10 Filed: 07/07/2016 Page 2 of 3

Defendants Motion be used solely for purposes of this case and consistent with

the dictates of Rule 9.01 of the Uniform Rules for Circuit and County Court

regarding pretrial publicity in pending criminal cases.

(3) If no transcripts presently exist, the State of Mississippi further has no objection to

the Courts ordering that transcripts of any hearings which the Court determines

should be produced pursuant to the Defendants Motion be prepared by the court

reporter(s) present during any such hearing.

Wherefore, premises considered, the State respectfully requests this honorable Court to

make a determination as to whether any transcripts exist and/or order the preparation of any

transcripts which the Court deems necessary and material to the Defendants preparation of his

defense in this case. Additionally, the State requests that the Court determine whether any

documents filed in the sealed hearings referenced in the Defendants motion are necessary and

material to the Defendants preparation of his defense and whether such documents should be

produced to the Defendant.

Respectfully submitted,

s/ LARRY G. BAKER

Larry G. Baker
Special Assistant Attorney General
MS Bar No. 100569
Robert G. Anderson
Special Assistant Attorney General
MS Bar No. 1589
Office of the Attorney General
State of Mississippi
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 359-4250

-2-
Case: 25CO1:16-cr-00624-MVP Document #: 10 Filed: 07/07/2016 Page 3 of 3

CERTIFICATE OF SERVICE

I, Larry G. Baker, hereby certify that I have this day filed the above and foregoing

Response with the Clerk of Court, utilizing the Courts electronic case filing system, which sent

notification to the Jim Waide, Attorney for the Defendant, Robert Shuler Smith, at his usual e-

mail address of waide@waidelaw.com.

THIS, the 7th day of July, 2016.

s/ LARRY G. BAKER
Larry G. Baker
Special Assistant Attorney General
MS Bar No. 100569

-3-
Case: 25CO1:16-cr-00624-MVP Document #: 1 Filed: 06/22/2016 Page 1 of 3
Case: 25CO1:16-cr-00624-MVP Document #: 1 Filed: 06/22/2016 Page 2 of 3
Case: 25CO1:16-cr-00624-MVP Document #: 1 Filed: 06/22/2016 Page 3 of 3