Case: 25CI1:16-cr-00836-LER

Document #: 40

Filed: 10/21/2016

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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT

OF HINDSf=BUiTl:_M~SBI
STATE OF MISSISSIPPI

PLAINTIFF

OCT 21 2016
VS.

Cause No. 16-cr-836

ZACK WALlACE, CIRCUIT CLERK

ROBERT SHULER SMITH

.t

DEFENDANT

MOTION TO QUASH SUBPOENA

Kate Steiner, Staff Attorney to Judge Jeff Weill, Sr., Hinds County Circuit Court Judge,
through her undersigned counsel making a limited appearance, respectfully moves to quash the
subpoena (Exhibit "A") issued to her to appear as a witness at a hearing in this case. In support,
movant shows the subpoena is in clear violation of the applicable law and rules of court and
unnecessary, as there are alternatives based on the following:
1.

Pursuant to Uniform Circuit and County Court Rule 2.01, Motions to Quash

subpoenas in a criminal matter are governed by M.R.C.P. 45. M.R.C.P. 45(d)(1)(A) provides
that "the court from which a subpoena was issued shall quash or modify the subpoena if it (ii)
requires disclosure of privileged or otherwise protected matter and no exception or waiver
applies." Judge Weill's thought processes and records are protected from disclosure pursuant to
Miss. Code Ann. 9-1-38, thereby meeting the exact purpose of the stated exception in
M.R.C.P. 45(d)(l )(A)(ii).
2.

Kate Steiner, as a judicial staff member of Judge Weill, is subject to protection

under the same privileges as Judge Weill. The United States Supreme Court "has extended
absolute (judicial) immunity to certain others who perform functions closely associated with the
judicial process."

Cleavinger v. Saxner, 474 U.S. 193, 200 (1985).

A law clerk, or staff

attorney, undoubtedly falls into this category as "as law clerk generally performs discretionary
acts of a judicial nature ... [and] is probably the one participant in the judicial process whose

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duties and responsibilities are most intimately connected with the judge's own exercise of the
judicial function." Oliva v. Heller, 839 F.2d 37, 40 (2nd Cir. 1988). 1
3.

The United States Supreme Court has long recognized the need to prevent

disruption of the judicial process through improper use of subpoenas, just like this one. A
judge's mental processes, deliberations and communications with his staff regarding judicial
functions are absolutely privileged. This principle has been the law in this country for decades,
as the United States Supreme Court strongly held that: "(Judges) are assumed to be men of
conscience and intellectual discipline, capable of judging a particular controversy fairly on the
basis ofits own circumstances." US. v. Morgan, 313 U.S. 409,421,61 S.Ct. 999, 1004 (1941).
In Morgan, the Supreme Court ... stated that an examination of the mental processes of a judge
would be destructive of judicial responsibility and, thus, should not be permitted. Thus, the law
prevents "an examination into the mental processes of the judge" absent extraordinary
circumstances. !d.
4.

"[T]he overwhelming authority ... makes it clear that a judge may not be

compelled to testify concerning the mental processes used in formulating official judgments or
the reasons that motivated him in the performance of his official duties." United States v. Roth,
332 F.Supp.2d 565, 567 (S.D.N.Y.2004); see e.g., United States v. Morgan, 313 U.S. 409, 422,
61 S.Ct. 999, 85 L.Ed. 1429 (1941); Fayerweather v. Ritch, 195 U.S. 276, 306-07, 25 S.Ct. 58,
49 L.Ed. 193 (1904); Robinson v. Commissioner of Internal Revenue, 70 F.3d 34, 38 (5th

See also e.g., Doe v. Cabrera, 139 F. Supp. 3d 472,479 (D.D.C. 2015) (holding: "[T]he requests for exchanges
involving Judge Walton and his two clerks invade the sanctity of chambers and the privileges enjoyed by judicial
officers. See Cabell, 237 F.Supp.2d at 100 (describing 'discovery of judicial officers' as an 'extreme step' that is
rarely permitted); see also Terrazas v. Slagle, 142 F.R.D. 136, 139 (W.D.Tex.1992) (noting the 'sanctity of
communications between the judges and their law clerks"').

2
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Cir.1995); Grant v. Shalala, 989 F.2d 1332, 1344-45 (3d Cir.l993); United States v. Matthews,
68 M.J. 29, 39-40 (C.A.A.F.2009)" Bliss v. Fisher, 714 F.Supp.2d 223,224 (D.Ct. Mass 2010).
"If a judge cannot be compelled to testify ... in regards to her or his decision making, then a
disgruntled litigant should not be allowed to circumvent this by compelling the judge's staff to
testify." In re Lickman, 304 B.R.897, 903 (Bankr.M.D.Fla.2004).
5.

Kate Steiner has no personal knowledge regarding the subject case, independent

of any knowledge acquired in her role as judicial clerk. Judge Weill, thus Kate Steiner, has had
no involvement in the subject criminal indictment against Mr. Smith. Pursuant to M.R.E. 602,
testimony from Kate Steiner, a subpoenaed witness with no non-privileged personal knowledge,
is impermissible. Further, the Defendant's subpoena of Ms. Steiner came only after Ms. Steiner
responded to an October 19, 2016 email from defense counsel, which stated an intent to
subpoena Judge Weill for the same hearing. Ms. Steiner responded and informed counsel and
Judge Roberts that: 1) Judge Weill will be out of state on the date of the hearing and is
unavailable; and 2) The described purpose for issuing the subpoena is patently improper? See
Exhibit B, October 19,2016 Emails. Discourteously, counsel issued a subpoena for Judge Weill

According to Mr. Waide, the purported purpose of the subpoena to Judge Weill, and presumably to his law clerk as
well, include 1) the reason why the hearing transcript from cause number 251-16-120 remains sealed and 2) the role
of the Attorney General in obtaining an order barring Mr. Smith from the grand jury. To subpoena the sitting judge
and/or his staff for such purpose is entirely improper as Judge Weill has expressed his position regarding the sealing
ofthe hearing transcript in cause number 251-16-120 in his response filed on August 9, 2016 with the Mississippi
Supreme Court in appellate cause number 2016-M-01013 and in an e-mail to Judge Roberts and the parties in this
case number which was sent on September 30, 2016. Furthermore, the Court advises that the Order disqualifying
Mr. Smith from the grand jury was appealed and ruled upon by the Mississippi Supreme Court, therefore it would
not be proper for Mr. Smith to continue litigating the Order in this forum. To subpoena a judge and/or his law clerk
to testify about an order is nothing more than an impermissible fishing expedition meant to harass and intimidate the
judge, which is the reason why absolute immunity is granted to judges and their clerks-to prohibit unsatisfied
parties from hounding him or her "with litigation charging malice or corruption." Oliva, 839 F.2d at 39, citing
Pierson v. Ray, 386 U.S. 547, 554 (1967).

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in disregard of his planned out of state trip. 3 Counsel then added Ms. Steiner to the extensive
list of subpoenaed witnesses, seemingly in retaliation for her response to his email.
6.

Finally, any information sought by Ms. Steiner, if the same is even relevant to the

subject proceeding, is available from other subpoenaed witnesses, thereby making any
testimony from the undersigned cumulative and unnecessary.
WHEREFORE, Kate Steiner, staff attorney to Hinds County Circuit Court Judge Jeff
Weill, Sr., respectfully requests that the subpoena issued on October 20, 2016 be quashed and
that a protective order be issued prohibiting the issuance of additional subpoenas to her by the
defendant.
THIS, the 21 51 day of October, 2016.
Respectfully submitted,
PHELPS DUNBAR, LLP

BY:

/sf Prank_ W. rJrapp

Frank W. Trapp, MSB 8261
R. Gregg Mayer, MSB 102232
4270 1-55 North
Jackson, Mississippi 39211-6391
P. 0. Box 16114
Jackson, Mississippi 39236-6114
Telephone: (601) 352-2300
Telecopier: (601) 360-9777
Email: frank.trapp@phelps.com
gregg.mayer@phelps.com
Attorneys for Kate Steiner in her capacity
as Staff Attorney of Circuit Court Judge
Weill

Judge Weill's subpoena has not been served, but in the event that service is perfected, undersigned counsel will
submit a separately filed Motion to Quash on his behalf. In addition, Judge Weill respectfully submits that it would
set a dangerous precedent to permit criminal defendants to compel sitting judges or their staff members to testify
without regard for the judge's schedule, and with less than two full business day's notice.

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Case: 25CI1:16-cr-00836-LER

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CERTIFICATE OF SERVICE
I hereby certify that on October 21, 2016, I electronically filed this document with the
Clerk of the Court using the ECF system, which sent notification of such filing to all ECF
counsel of record in this action.

Is/ Frank W Tral2J2

FRANK W. TRAPP

5
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Case: 25CI1:16-cr-00836-LER

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STATE SUBPOENA
CAUSE NUMBER NO.

25Cll :16-cr-00836

STATE OF MISSISSIPPI VS. ROBERT SHULER SMITH

COUNTY OF HINDS-FIRST JUDICIAL DISTRICT
TO THE SHERIFF OF ANY LAWFUL OFFICER OF HINDS COUNTYGREETINGS:
~COMMANDYOUTOSUMMON

KATE STEINER
STAFF ATTORNEY

407 East Pascagoula Street

Jackson, MS 39225
To be and personally appear before the Judge of our Circuit Court of HINDS County at
the HINDS COUNTY COURT HOUSE thereof, in the City of JACKSON, MISSISSIPPI
on the OCTOBER 25,2016, to give evidence in a certain case in said Court pending,
wherein the STATE OF MISSISSIPPI is Plaintiff and ROBERT SHULER SMITH is
the defendant, on the part of the STATE OF MISSISSIPPI.

HEREIN YOU SHALL NOT FAIL under penalty in such cases made and
provide: and have then and there this writ.
WITNESS MY HAND AND SEAL OF SAID COURT, this the 20th day
SEPTEMBER of 20 16.
ZACK WALLACE,

By:

'~

/~~

ATTORNEYS FOR THE DEFENDANT

(Please Contact attorney Jim Waide at 662-871-9162 upon receipt of subpoena)

EXHIBIT

l
i

nA.

Case: 25CI1:16-cr-00836-LER Document #: 40

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.Weills Court Administrator

From:

Sent:
To:

Cc:
Subject:

Weills Lawclerk
Wednesday, October 19, 2016 1:52 PM
JWeillsr@aol.com
Weills Court Administrator
FW: State v. Smith Hinds Circuit Cause No. 16-836

Mr. Waide,
Please be advised that Judge Weill will be out of state on October 25, 2016, and is therefore unavailable for any
hearing on that date. Further, the purported basis for your subpoena as stated in your email below is improper. Thus, if
you do proceed with any subpoena as described, a Motion to Quash will be filed with the Court.
Kate C. Steiner
Staff Attorney to Judge Jeff Weill, Sr.
Hinds County Courthouse
407 E. Pascagoula Street
1st Floor - 39201
P.O. Box 22711
Jackson, MS 39225-2711
Office- (601) 973-5576
Fax- (601) 973-5541

From: Patricia Nowlin [mailto:pnowlin@waidelaw.com]

Sent: Wednesday, October 19, 2016 11:42 AM

To: Weills Lawclerk <weillslawclerk@co.hinds.ms.us>
Cc: ROBERT ANDERSON <rande@ago.state.ms.us>; LARRY BAKER <LBAKE@ago.state.ms.us>; Karen Dempsey
<knd@waidelaw.com>
Subject: State v. Smith Hinds Circuit Cause No. 16-836
Judge Weill:
In properly representing DA Smith, I am sorry but I must subpoena you to the hearing set for October 25, 2016.
Your testimony will relate to whether there is any legitimate interest in denying Robert access to the hearing transcript
in Cause No. 16-120., and the role of the Attorney General in obtaining your Order which disqualified Smith from
attending Grand Jury sessions.
With kindest regards, I am
Jim Waide
(via)
Patricia Nowlin
Paralegal
Waide and Associates, P.A.
P. 0. Box 1357
Tupelo, MS 38802
662-842-7324
662-842-8056 (fox)

EXHIBIT

j..

Case: 25CI1:16-cr-00836-LER

pnov.;/in@waidelaw.com

Document #: 40

Filed: 10/21/2016

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