RSS Last Minute Motions

Case: 25CI1:16-cr-00836-LER
Document #: 66
Filed: 12/01/2016
Page 1 of 3
IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI
VS.
PLAINTIFF
CAUSE NO.: 25CI1:16-cr-00836-LER
ROBERT SHULER SMITH

DEFENDANT
______________________________________________________________________________
DEFENDANT ROBERT SMITHS MOTION TO EXCLUDE RECORDING OF
THE FISHING TRIP VIDEO; ALTERNATIVELY, TO REQUIRE THE STATE
TO FURNISH TRANSCRIPT
______________________________________________________________________________
Defendant Robert Smith (hereinafter Smith) respectfully moves this Court to exclude the
recording of the fishing trip video. Smith shows the Court as follows:
1.
On or about November 21, 2016, the Attorney General furnished Smiths counsel a
video of Smith and Ivon Johnson fishing together.

2.
The recording contains substantial time periods during which nothing can be heard,
contain other conversations relating to business ventures, contains routine social chatter, and
contains profanity.
3.
On the tape, Johnson asks Smith whether Judge Weill is going to dismiss the Butler
case, followed by various critical and profane statements by Smith about Judge Weill. This appears
to be only matter on the tape relating to Butler.
4.
The taped video contains no evidence of probative value on whether Smith is guilty
of any charge.
5.
Because of the profanity and the lengthy gaps in which there is no sound, the unfair
prejudicial effect of introducing this video outweighs any probative value. It is, thus, inadmissible
under Mississippi Rule of Evidence 403.
6.
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Alternatively, should the Court determine that the video tape is admissible, Smith
moves the Court to require the State to furnish a transcript of the video so that Smith can determine
what incriminating statements are claimed to be made.
ACCORDINGLY, Smith requests that the Court hold the video of the fishing trip between
Smith and Ivon Johnson to be inadmissible under Mississippi Rule of Evidence 403, or,
alternatively, that the Court require the State to furnish a transcript of the portions of the tape, if any
can be admissible.
RESPECTFULLY SUBMITTED, this the 1st day of December, 2016.
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
Document #: 66
Filed: 12/01/2016
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, MS 39205
rande@ago.state.ms.us
Assistant Attorney General Larry Baker
P. O. Box 220
Jackson, MS 39205
lbake@ago.state.ms.us
VIA EMAIL:
Judge Larry Roberts
lroberts_judge@yahoo.com
VIA EMAIL:
Damon R. Stevenson, Esq. (Attorney for Christopher Butler)
Stevenson Legal Group, PLLC
1010 N. West Street
Jackson, MS 39202-2568
damon.steven@gmail.com
VIA EMAIL:
Dale Danks, Jr., Esq. (Attorney for Jamie McBride)
P. O. Box 1759
Jackson, MS 39215
ddanks@dmc-law.net
SO CERTIFIED, this the 1st day of December, 2016.
/s/ Jim Waide

JIM WAIDE
Document #: 72
Filed: 12/01/2016
Page 1 of 4
PLAINTIFF
VS.
CAUSE NO. 25CI1:16-cr-00836
ROBERT SHULER SMITH
DEFENDANT
RESPONSE TO DEFENDANT SMITHS MOTION TO SUPPRESS

TESTIMONY OF IVON JOHNSON AND TAPES MADE BY JOHNSON
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 (Dkt. #63) to Suppress Tapes made by Ivon Johnson and
the testimony of Ivon Johnson.
In response to said motion, the State of
Mississippi would show the Court the following:

1. On October 18, 2016, Smith filed a Motion to Exclude Tapes and
Transcripts (Dkt. #27) which was addressed specifically to the tapes and
transcripts of the conversations recorded by Ivon Johnson while he was working
undercover with the Federal Bureau of Investigation.
2. The State of Mississippi filed its response to that motion on October 20,
2016, and that response is filed of record in this case (as Dkt. #30).
No
additional compelling legal authority has been included in this present Motion
to Suppress, excepted an unfounded reference to the fruit of the poisonous tree
doctrine which has no application here.
Despite Smiths argument to the
contrary, the FBI had legal authority to make the tapes and Johnson consented
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Filed: 12/01/2016
Page 2 of 4
to the making of the tapes. There simply was no illegal taping of any kind. For
that reason, the State rests on its earlier response and renews its request that
defendants motion to exclude these tapes be denied. Likewise, there is no basis
for excluding Johnsons testimony.
3. Regarding the suggestion made at the hearing on November 10, 2016,
to direct the defense counsel to the excerpts which the State intends to use in its
case-in- chief in this case, counsel is finalizing the summary of excerpts and will
provide that summary to defense counsel on Friday, December 2, 2016. Smith
will have adequate time to decide what portions of the tapes, if any, he wishes
to use at trial.
4.
This renewed motion to suppress is simply a rehashing of the
defendants earlier motion to exclude. Both motions should be denied.

WHEREFORE, premises considered, the State respectfully requests that
this Court deny Smiths motion to suppress the testimony of Ivon Johnson and
the tapes made by Ivon Johnson in its entirety.
THIS the
1st day of December, 2016.
-2-
Document #: 72
Filed: 12/01/2016
Page 3 of 4
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
MS Bar No. 100569
Of Counsel:
Office of the Attorney General
State of Mississippi
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 576-4254
-3-
Document #: 72
Filed: 12/01/2016
Page 4 of 4
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 1st
day of December, 2016.
s/Robert
G. Anderson
Robert G. Anderson
MS Bar No. 1589
-4-
Document #: 162
Filed: 12/16/2016
Page 1 of 4
VS.
PLAINTIFF
ROBERT SHULER SMITH
DEFENDANT
STATE OF MISSISSIPPIS MOTION TO EXCLUDE

UNDATED TEXT MESSAGES
Mississippi Attorney General, and files this its Motion to Exclude certain
undated text messages which have been provided to the State in supplemental
discovery disclosures from defendant Robert Shuler Smith. In support of its
Motion to Exclude, the State of Mississippi would show the Court the following:
1. On or about December 12, 2016, counsel for defendant Robert Shuler
Smith provided his Fourth Supplemental Discovery to the State. See Fourth
Supplemental Discovery, attached hereto as Exhibit A.
2.
Included among the items produced to the State are various text
messages, such as a series of text messages purportedly between Smith and

United States Attorney Greg Davis. See Text Messages, attached hereto as
Exhibit B. None of the text messages to/from Davis bears a date indicating when
the text was sent or received by the sender/receiver of each text message. Smith
also produced additional text messages purportedly between himself and
Document #: 162
Filed: 12/16/2016
Page 2 of 4
Attorney John Reeves, Attorney Jodi Owens and Special Assistant Attorney
General Patrick Beasley. With the exception of some of the text messages to
Owens and the text messages to Beasley, which have a handwritten date affixed
to the printed pages on which the text messages appear, these additional text
messages are likewise undated.
3. Absent identification as to the date of these text messages, the State
has no way of determining whether the text messages were sent or received
during the relevant time period alleged in the indictment in this case. Moreover,
since these text messages apparently were pulled from the telephone which the
State of Mississippi has been unable to examine because Smith was unwilling
to permit the State access to the unlock code for that phone, it is likely that
Smith has simply cherry-picked what he believes to be favorable text messages
from that phone and that he may have withheld inculpatory messages which
appear on that telephone.
this Court enter an order precluding the entry of any undated text messages for
the reasons set forth above.
-2-
Document #: 162
Filed: 12/16/2016
Page 3 of 4
THIS the 16 th day of December, 2016.

ATTORNEY GENERAL
s/Robert
G. Anderson

MS Bar No. 1589
Larry G. Baker
MS Bar No. 100569
Of Counsel:
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 576-4254
-3-
Document #: 162
Filed: 12/16/2016
Page 4 of 4
and foregoing Motion to Exclude 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.
s/Robert
G. Anderson
Robert G. Anderson
MS Bar No. 1589
-4-
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"
Document #: 164
Filed: 12/16/2016
Page 1 of 2

FIRST JUDICIAL DISTRICT
STATEOFMISsnprpt
e.
OEC 16 2016
vs.
PLAINTIFF
CAUSE NO. 25Cil; 16-CR-00836-LER
WA.LLA.C. CIRCUIT CLERK
_D.C.
ROBERTSMIT~L-------------ZA.CK
DEFENDANT
MOTION FOR ORDER TO COMPEL RECIPROCAL DISCOVERY OR IN THE

ALTERNATIVE TO QUASH DEFENSE WITNESSES
COMES NOW, the Plaintiff, the State of Mississippi, by and through the Office ofthe
Attorney General, and requests this honorable Court to order the defense, pursuant to Rule 9.04
and 9.05 of the Uniform Circuit and County Court Rules, to disclose and produce for the State's
inspection and to furnish copies of the following items and information to the State, to wit:
1)
Names and addresses of all witnesses proposed to be offered by the defense at

trial. The substance of any oral testimony that the above witnesses intend to offer.
2)
All records and/or documents that the defense intends to submit for exhibit and/or
evidence.
(3)
Any reports, statements, or opinions of experts, which the defendant may

offer in evidence;
(4)
Written notice of the intention to offer a defense of alibi, which notice shall state
the specific place or places at which the Defendant claims to have been at the time
of the alleged offense and the names and addresses of the witnesses upon which
the Defendant intends to rely to establish such alibi.
5)
The Defendant has issued trial subpoenas to many witnesses but has notprovided
the information to the state that is required by 9.04 C. 1. Specifically, the defense
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has not provided "the substance of any oral testimony that the above witnesses
intend to offer."
6)
The Defendant is obviously aware of Rule 9.04 since he attempted to comply with
section 9.04 C. 3. by submitting a report of James Robertson as an expert witness.
7)
Since the Defendant has willfully neglected to comply with Rule 9.04 C. it is
apparent that the defendant is doing so in order to gain a tactical advantage and to
engage in trial by ambush.
8)
The State prays that the Court require the Defendant to comply with Rule 9.04 C
or have those witnesses stricken pursuant to Lindsey v. State, 965 So2d 712,
COA 2007.
Wherefore, premises considered, the State respectfully requests this honorable Court to
grant the relief herein sought.
arvin L. Sanders
MS Bar# 101562
P.O. Box 220
Jackson, MS 39205
'
Document #: 165
Filed: 12/16/2016
Page 1 of 13
STATE OF MISSISSIPPF
I L E D
PLAINTIFF
DEC 16 2016
vs.
ZACK WALLACE, CIRCUITCLER~AUSE NO. 25CI1;16-cr-00836-LER
ROBERT SMITH
DEFENDANTS
MOTION TO STRIKE WITNESS JAMES ROBERTSON

COMES NOW the State of Mississippi, by and through the Mississippi Attorney
General's Office, who prosecutes in and for the State of Mississippi, and requests that the Court
enter an order granting this "Motion to Witness James Robertson" and in support the State would
show that:
1. The Defense has tendered James Robertson as a potential expert witness in the fields
of:
a. Legal ethics and Lawyers' professional responsibility,
b. Jurisprudence, legal philosophy, including the practice and process of legal
interpretation and adjudication, and
c. Constitutional law and practice, including Mississippi constitutional law and
practice. (See Exhibit 1)
2. Mississippi Rule of Evidence 702 states that "If scientific, technical or other
specialized knowledge will assist the trier of fact to understand or determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise, if ( 1) the testimony is based upon sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of the case."
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3. The information provided, by the Defense, shows that this witness would be admitted
to testify not as to facts in issue related to the above reference criminal trial, but issues of law,
which are within the purview of the Courts. Indeed, the Court has already ruled on the
constitutionality of the statute charged in Count III of the indictment in this case and that ruling
is binding up the defense. The defense cannot re-argue their motion to dismiss in the context of
offering an expert witness to challenge the Court's ruling on the constitutionality of the statute
under which the defendant is charged in this case.
4. The defendant, thru this witness, is attempting to attack the legitimacy of the statutes
that the defendants are charged under , as well as, engage in an attempt to embark upon a
philosophical discussion regarding the authority of prosecuting attorneys and the
unconstitutionality of Section 97-11-3.
5
The proposed testimony of this witness has no probative value in the Jurys determination
of guilt or innocence of the crime charged. This testimony is irrelevant and will not assist the
trier of fact to understand or determine a fact in issue.
Wherefore, premises considered, the State respectfully requests this honorable Court to
grant the relief herein sought.
Document #: 165
Filed: 12/16/2016
Page 3 of 13
I, Marvin L Sanders, hereby certify that I have this day filed the above and foregoing
Motion to Strike Witness James Robertson with the Clerk of Court, utilizing the Court's
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 161h day of December, 2016.
Document #: 165
Filed: 12/16/2016
Page 4 of 13
CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT
vs.
NO. 25CI1;16-cr-00836-LER
ROBERT SHULER SMITH

EXPERT WITNESS REPORT OF JAMES L. ROBERTSON
Statement of Fields and Qualifications
I am familiar with Rule 702 of the Mississippi Rules of Evidence. By reason of my
knowledge, skill, experience, training and education, I respectfully submit that I am qualified to offer
reliable opinions and other expert testimony 1 that will assist the trier of fact in this case in the
following fields of scientific, technical or other specialized knowledge:
1.
Legal ethics and lawyers' professional responsibility
2.
Jurisprudence, legal philosophy, including the practice and process of legal

interpretation and adjudication, and
3.
Constitutional law and practice, including Mississippi constitutional law and practice.
I have provided a current curriculum vitae, resume and detailed itemization of my knowledge, skill,
experience, training and education in these fields, which I understand has been filed with the Court
in connection with this matter and has been provided to counsel opposite.
Opinions
Having due regard for and in compliance with Rule 702 ofthe Mississippi Rules ofEvidence,
it is my opinion that:
See, e.g., my article Variations on a Theme by Posner: Facing the Factual Component
ofthe Reliability Imperative in the Process ofAdjudication, 84 Miss. L. JOURN. 471,484-485,
fns. 40-43 (2015) and accompanying text.
-1-
EXHIBIT
IL
1.
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A Mississippi prosecuting attorney enjoys tremendous discretion in the performance
ofthe duties of his office. This discretion includes, inter alia:

a.
Whether to proceed to trial on charges made in an indictment is subject to
approval of the court under the literal terms of Miss. Code Ann. 99-15-53. There is,
however, no law in Mississippi providing criteria by reference to which the Court should
exercise its authority under Miss. Code Ann. 99-15-53;
b.
Whether vel non to call particular witnesses;
c.
Whether vel non to proffer particular evidence;
d.
In exercising his discretion regarding witnesses to call and evidence to proffer,
he should consider whether and to what extent rights secured to the defendant by constitution
or other form of law may be affected by such proffers.
2.
Subject only to cases where rights secured to the defendant may be implicated, there
are reasonable grounds for believing that judicial interference with prosecutorial discretion offends
the separation of powers of the office of judge and the office of district attorney. This is so whether
the separation be seen as a command of Article 1 of the Mississippi Constitution of 1890 or
otherwise.
3.
Within his discretion, a prosecuting attorney may decline to proceed to trial with a
charge where he reasonably believes that there has been improper investigatory conduct by law
enforcement officials upon whom he would ordinarily rely in the prosecution of the case. In
conducting a criminal case, the prosecuting attorney must be fair and impartial, and see that
defendant is not deprived of any constitutional or statutory right. The right to be free from excessive
bail is a constitutional right.
4.
Miss. Code 97-11-3, as it presently reads, is constitutionally unenforceable for any
number of arguable reasons, including:
-2-
Document #: 165
Filed: 12/16/2016
Page 6 of 13
a.
It is inconsistent with Borderkircher v. Hayes, 434 U.S. 357, 365 (1978)

which permits a prosecuting attorney to consult, advise and counsel a
defendant (subject to the defendant having counsel or having effectively
waived his right to counsel) regarding the possible sentencing consequences
of standing trial or entering a plea of guilty or any other possible disposition
ofthe case.
b.
It is inconsistentwithBradyv. Maryland, 373 U.S. 83 (1963),whichrequires

that the prosecution consult, advise, counsel and defend the defendant by
disclosing to him all known exculpatory evidence that tends to negate guilt
or would otherwise reasonably be of value to the defendant in defending the
charge against him.
c.
It is "void for vagueness" under the Due Process Clauses of the Fourteenth
Amendment to the Constitution of the United States and, independently,
under Article 3, 14, of the Mississippi Constitution.
This proposition of controlling constitutional law is so beyond a reasonable doubt, given that the
Court must focus on the text of 97-11-3 and how it defmes the conduct which the legislature has
made criminal or penal, and not in terms of what an individual defendant may have done on a
particular occasion.
Preliminary Considerations
In 1940 U. S. Attorney General Robert H. Jackson (future Justice on the Supreme Court of
the United States and Chief Prosecutor for the Allied Forces at the Nuremberg Trials after World
War II) began a famous address on the role of prosecuting attorneys.
"The prosecutor has more control over life, liberty, and reputation than any other
person in America. His discretion is tremendous. " 2
Robert H. Jackson, "The Federal Prosecutor", An Address to the Conference of United

States Attorneys, Washington, D. C., April I, 1940.
-3-
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"Lawyers empowered by law to bring and press criminal charges have an authority
that must be exercised with care to protect the rights of both the innocent and the
guilty."3
It is widely accepted in this country, including in Mississippi that:

"A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the basis of
sufficient evidence. >4
"Procedural justice" includes due process of law and all formal rules of evidence and procedure. It
includes the "exclusionary rule" which has been recognized in Mississippi at least since Tucker v.
State, 128 Miss. 211, 90 So. 845, 847 (1922). "Sufficient evidence" is limited to constitutionally
and legally permissible evidence.
Justice Oliver Wendell Holmes, Jr., one of our wisest and most revered ministers ofjustice,
once captured the ultimate essence of this discretionary power in these often quoted words.
"We have to choose, and for my part, I think it a lesser evil that some criminals
should escape than that the government should play an ignoble part." 5
A district attorney- with reason to believe that evidence of a serious controlled substances offense
-is improperly tainted similarly has to choose. Within his "tremendous discretion" that district
attorney has the professional responsibility- and almost cei:tainly the prosecutorial discretion- to
request that the prosecution be dismissed, and expect that his request will be promptly honored.
Restatement of the Law: The Law Governing Lawyers (adopted 1998; published 2000),
Vol. 2, page 49, 97, comment h.
4
Comment to Rule 3.8, Mississippi Rules of Professional Responsibility.
Olmstead v. Unites States, 277 U.S. 438, 469-471 (1928) (Holmes, J., dissenting).
-4-
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Such a district attorney's failure to so move may constitute a violation on his part of Rule 8.4(d),
Mississippi Rules of Professional Responsibility, viz., "It is professional misconduct for a
[prosecuting attorney] to ... engage in conduct that is prejudicial to the administration of justice."
An Irony
Gregoriev. Biddle, 177 F.2d 579,581 (2nd Cir. 1949) contains one ofthe bestknownjudicial
utterances of Judge Learned Hand. In that case, Hand explained that a prosecutor's absolute
immunity reflects "a balance" of"evils." "[I]t has been thought in the end better to leave unredressed
the wrongs done by dishonest officers than to subject those who try to do their duty to the constant
dread of retaliation." Legal assault after assault has been launched for well over half a century
against prosecuting attorneys, some of whom arguably fell quite short oftheir duty, particularly when
it came to respecting the rights of the accused. And yet the prosecutor's absolute immunity has only
grown stronger, from Imbler v. Pachtman, 424 U.S. 409 (1976) through Van de Kamp v. Goldstein,
555 U.S. 335 (2009), and hundreds of lesser known cases, before and since. Of course, these have
been cases where ordinarily a preponderance of the evidence was enough to carry the day against a
prosecutor gone awry, and where there was no presumption of innocence, nor beyond-a-reasonabledoubt burden of proof standard.
New Orleans District Attorney Harry Connick and his staff spent years and years trying to
send an absolutely innocent man to his death in Louisiana's electric chair. And yet, when John
Thompson was finally exonerated and sued Connick, he was sent packing on the grounds that he had
not proved that Connick's office had engaged in a pattern or practice of such outrages. The U. S.
Supreme Court knowing full well the practical reality that such a pattern or practice could never be
proved at such a level that would pass muster, given the doctrine of prosecutorial immunity.
-5-
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Connickv. Thompson,563 U.S. 51 (2011). Howironicthat,inanerawhensomewherearound98%

of all prosecutorial discretion cases result in judicial rebuffs to charges that the prosecuted
defendant's rights were offended, we now find ourselves with a case where the prosecutor is charged
with having been too solicitous of the rights of the accused.
Prosecutorial Discretion
"It is a fundamental principle of our criminal justice system that a prosecutor is afforded
prosecutorial discretion over what charge to bring in any criminal trial." Watts v. State,717 So.2d
314, 320 (Miss. 1998). "The capacity of prosecutorial discretion to provide individualized justice
is 'firmly entrenched in American law.' As we have noted, a prosecutor can decline to charge, offer
a plea bargain, of decline to seek the death sentence in any particular case." Watts v. State, 717 So.2d
314, 320
(~14)
(Miss. 1998), quoting Ladner v. State, 584 So. 2d 743, 751 (Miss.l991).
"Generally speaking, a lawyer [including a prosecuting attorney] has the authority to refuse
to offer testimony or other proofthat the lawyer believes is untrustworthy. " 6 Similarly, a prosecuting
attorney may refuse to offer evidence that has been obtained by law enforcement of authorities in
probably violation of rights of the accused, even though the prosecuting attorney believes that the
evidence is probably trustworthy and that there is probable cause to believe that, in fact, the accused
is guilty as charged.
"Traditionally and at common law, public prosecutions were within the exclusive control of
the district attorney with the absolute power to enter a nolle prosequi at any time before a jury was
empanelled," except where otherwise provided by statute. See Buccolo v. Adkins, 424 U.S. 641, 642
Comment to Rule 3.3(c), Mississippi Rules of Professional Responsibility, and

comrnentthereto.
-6~
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Page 10 of 13
(22)
The Positive Sid~ ofthe Law, 31 The Miss. Lawyer (MSB) 14 (1985).
(23)
The Lawyer as Hero, 53 Miss. L. J. 431 (1983).
(24)
Joinder of Claims and Parties- Rules 13, 14, 17 and 18, 52 Miss. L. J. 37 (1982).
(25)
Fleshing Out the Premises and Procedures for Capital Murder Trials, 8 Voir Dire
(MTLA) 6 (1982).
(26)
Problems of Valuation and Equalization in Mississippi's Ad Valorem Tax System, 48

Miss. L. J. 201 (1977).
(27)
Jurisdictional Dilemma in Pleasure Boat Accident Cases, 8 Miss. Defense L. J. 8 (1973).
(28)
Myth and Reality in Consumer Credit Rate Regulation, 43 Miss. L. J. 429 (1972).
(29)
Remedies for Injured Drydock Workers, 21 Federal of Insurance Counsel Quarterly 55

(1970), reprinted in VI International Society ofBarristers Quarterly 57 (1971).
(30)
Editor, Uniform Consumer Credit Codes: General Comparison With Existing Mississippi
Law and Federal Consumer Credit Protection Act (1971).
(31)
The Uniform Consumer Credit Code in Mississippi, 54 Miss. Banker 13 (1970).
(32)
Consumer Protections Under the Uniform Consumer Credit Code, 41 Miss. L. J. 36

(1969).
(33)
Application ofData Processing Techniques to the Uniform Commercial Code Filing

System: A lv.fodern Proposal for Mississippi, 39 Miss. L. J. 173 (1968).
JAMES L. ROBERTSON- PROFESSIONAL RESPONSIBILITY EXPERIENCE
Recent Cases Handled As Lawyer

(1)
Complaintv. An Attorney, MB Docket No. 07-455-2
(2)
Complaint v. An Attorney, MB Docket No. 05-378-2
(3)
Complaint v. An Attorney, MB Docket No. 02-232-1
-7-
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(4)
Wallace Lee Barnettv. Pulmason Safety Equipment Corp., et al. Circuit Court of Jasper
County, Mississippi, 1st Jud. Dist., Civil Action No. 14-001 0; represented Page Mannino
Peresich & McDermott
(5)
The Mississippi Bar v. William E. Catledge, Supreme Court ofMississippi, 913 So.2d
179 (Miss. 2005); represented William E. Catledge
(6)
The Mississippi Bar v. H Russell Rogers, m, 731 So.2d 1158 (Miss. 1999), represented
H. Russell Rogers, ill
(7)
Schwartz v. Welch, 890 F. Supp. 565 (S.D. 1995)
Cases In Which Appeared As Expert Witness

(1)
Comet Rice, Inc. v. James Robertshaw, an Individual, and Robertshaw, Terney & Noble,
a Mississippi Partnership; U.S. District Court, Northern District of Mississippi,
Greenville Division, No. 4:92CV2780B-D (Circuit Court of Washington County,
Mississippi)
(2)
Omnibank v. Phelps Dunbar LLP; Circuit Court of Hinds County, Mississippi, 1st Jud.
Dist., Civil Action No. 251-96-00975-CIV (and Dana Kelly)
(3)
Wells Fargo, NA. as Creditors Committee Estate Representative, Jitney-Jungle Stores of

America, Inc., et al. v. Bruckmann, Rosser, Sherrill & Co., Inc., et al.; Chancery Court of
Hinds County, Mississippi, 1st Jud. Dist., Civil Action No. 251-01-1153 (Jitney Jungle
Claims v. Dechert)
(4)
Follen Wood Preserving Co. v. Liberty Mutual Insurance Co.; U.S. District Court, S.D.
Miss., Jackson Division, Civil Action No. 3:01CV506WS
(5)
Cooper Tire & Rubber Company v. John Booth Farese, et al., U. S. District Court, N.D.
Miss., Western Division, Civil Action No. 3:02CV210-P-A
(6)
Sam Seay v. Baker Donelson Bearman Caldwell & Berkowitz, Circuit Court of Hinds
County, Mississippi, 1st Jud. Dist., Civil Action No. 251-05-477CIV
(7)
Terra Technologies, Inc., et al. v. Interface Flooring Systems, Inc., et al.; Circuit Court of
Hinds County, Mississippi, l 5c Judicial District. Civil Action No. 251-02-02CIV
(8)
Maggie T. Williams, et al., v. Kuhlman Corporation, et al., Circuit Court of Hinds

County, Mississippi, First Judicial District, Civil Action No. 251-03-102CIV
-8-
..
(9)
Document #: 165
Filed: 12/16/2016
Page 12 of 13
Brook Sivley, et a/. v. Coldwell Banker Real Estate Corporation, et al.; United States
District Court, Northern District of Mississippi, Western Division, Civil Action No.
4:05cv191-MPP-SAA
Cases Decided As Judge

(1)
Attorney Mv. The Mississippi Bar, 621 So.2d 220,228-29 (Miss. 1992) (concurring
opinion)
(2)
Holmes v. The Mississippi Bar, 602 So.2d 847, 852 (Miss. 1992) (concurring opinion)
(3)
Singleton v. Stegall, 580 So.2d 1242 (Miss. 1991)
(4)
Mississippi Board ofBar Admissions v. Appltcant F, 582 So.2d 377 (Miss. 1991)
(5)
Attorney Q v. Mississippi State Bar, 587 So.2d 228 (Miss. 1991)
(6)
Mississippi State Bar v. Odom, 573 So.2d 710 (Miss. 1990)
(7)
Haimes v. Mississippi State Bar, 551 So.2d 910 (Miss. 1989)
(8)
Mississippi State Bar v. Edwins, 534 So.2d 218 (Miss. 1988)
(9)
Hartford Accident & Indemnity Co v. Foster, 528 So.2d 255, 288-92 (Miss. 1988)
(dissenting opinion)
(10)
MlSsissippi State Bar v. Young, 509 So.2d 210 (Miss. 1987)
(11)
Attorney K v. Mississippi State Bar, 491 So.2d 220 (Miss. 1986)
(12)
Thornton v. Breland, 441 So.2d 1348 (Miss. 1983)
(13)
Levi vs. Mississippi State Bar, 436 So.2d 781 (Miss. 1983).
(14)
Allison v. State, 436 So.2d 792 (Miss. 1983)
Other
(1)
American Law Institute, Restatement (Third) Of The Law Governirig Lawyers, Member,
Members Consultative Group, 1987-1999.
-9-
Document #: 165
Filed: 12/16/2016
Page 13 of 13
(2)
Chaired all day CLE Seminar on Restatement (Third) Of The Law Governing Lawyers for
Alcorn County Bar Association, 1990.
(2)
Robertson, The Lawyer As Hero, 53 Miss. L. J. 431 (1983)
1Llt CV 'With Ptoi"Reop Expor 1111-16.wpd
~10-
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Page 1 of 6
VS.
PLAINTIFF
ROBERT SHULER SMITH
DEFENDANT
STATE OF MISSISSIPPIS MOTION TO EXCLUDE

ARGUMENT AND EVIDENCE OF ALLEGED RETALIATORY,
VINDICTIVE OR SELECTIVE PROSECUTION OF THE DEFENDANT
Mississippi Attorney General, and files this its Motion to Exclude Argument and
Evidence of Alleged Retaliatory, Vindictive or Selective Prosecution of the
Defendant. In support of its Motion to Exclude, the State of Mississippi would
show the Court the following:
1.
On or about December 15, 2016, counsel for State received jury
instructions from defendant Robert Shuler Smith. Many of those instructions

contain language seeking to instruct the jury on the issue of unconstitutional
retaliation. For example, proposed instruction DS-6 contains the following
language: I charge you that it would be unlawful and a denial of equal
protection of the law, for the attorney general to bring this prosecution in
retaliation for Smiths goods faith attempt to prosecute a public official.
(emphasis added)
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2. In the same vein, proposed instruction DS-7 contains the following

language: [I]f you find . . . That Defendant Robert Smith was singled out for
prosecution because of his good faith intent to prosecution public officials, then
I charge you that this prosecution is a violation of the equal protection
clause of the Fourteenth Amendment of the United States Constitution. . . .
(emphasis added)
3. Numerous other instructions address issues of due process or equal
protection under the United States Constitution. These instructions illustrate
an apparent intent on the part of Smith to defend the criminal charges brought
against him in this case as if he weere litigating a civil rights lawsuit, which is
the type of case his chosen defense counsel litigates on a regular basis. But this
is not a civil rights lawsuit, it is a criminal prosecution. The primary factual
question the jury will be asked to decide is whether the defendant is guilty or not
guilty of the criminal conduct charged in the indictment.
4. Defendant Robert Shuler Smith should not be permitted to argue to the
jury, or to seek to submit evidence or elicit testimony in the trial of this case, in
support of any retaliatory, vindictive or selective prosecution theory of defense.
Whether it is called retaliation, vindictive or selective prosecution, any such
constitutional argument is a matter for the Court to decide, not a matter for
-2-
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argument or proof before the trier of fact. As the United States Court of Appeals
for the Third Circuit stated in United States v. Berrigan, 482 F.2d 171, 175 (3 rd
Cir. 1973):
By both tradition and constitutional mandate the jury is given the
responsibility of determining guilt or innocence according to
instructions of law delivered by the court. The question of
discriminatory prosecution relates not to the guilt or innocence of
appellants, but rather addresses itself to a constitutional defect in
the institution of the prosecution.
Id. This Court has already addressed several sorties by this defendant and his
co-defendant aimed at quashing the indictment in this case. He lost on every
one of them. Smith specifically raised the issue of retaliation in his amended
motion to quash the indictment, which this Court denied. He should not now be
permitted to argue or offer evidence on this constitutional question before the
jury impaneled to decide this criminal case.
5. In the case of United States v. Abboud, 438 F.3d 554 (6 th Cir. 2006), the
Sixth Circuit reiterated that the defense of selective prosecution is a matter
that is independent of a defendants guilt or innocence, so it is not a matter for
the jury. Id. at 579. Similarly, in United States v. Clay, 618 F.3d 946 (8 th Cir.
2010), the Eighth Circuit agree[d] that selective prosecution of a criminal
defendant is not an issue for the jury to decide. Rather, the district court should
consider the matter before trial. Id. at 956.
-3-
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6. The Mississippi appellate courts have treated this issue in like fashion.
The question of selective prosecution regarding seeking the death penalty was
addressed in a pretrial hearing in Ladner v. State of Mississippi, 584 So.3d 743,
750 (Miss. 1991), with the Mississippi Supreme Court affirming the trial courts
determination that no showing of selective prosecution had been made. In Fox
v. State of Mississippi, 129 So.3d 208, 218 (Miss.App. 2013), the Mississippi
Court of Appeals noted that a selective prosecution claim is not a defense on the
merits of the criminal charge. Likewise, in Farris v. State of Mississippi, 764
So.3d 411, 434 (Miss. 2000), the Mississippi Supreme Court sustained a trial
judges finding that recusal of a district attorney was not supported by any clam
of selective prosecution.
7. Thus, while this Court has already ruled on numerous constitutional
arguments raised by this defendant, and has concluded that there is no basis for
quashing or dismissing the indictment or precluding the prosecution of this case,
the State of Mississippi reiterates its earlier arguments and urges this Court to
preclude at trial any argument, evidence or testimony addressing the issue of
retaliatory, vindictive or selective prosecutions of defendant Robert Shuler
Smith. That is not a factual issue for the trial jury to decide in this case, Smith
has had a full and fair opportunity to raise that issue in pretrial motions, and
this Court has already concluded that there is no constitutional defect in the
-4-
Document #: 167
indictment or in this prosecution.
Filed: 12/16/2016
Page 5 of 6
Smith has made his record on these
constitutional issues at the pretrial stage.
He should not be permitted to
relitigate these constitutional claims at trial.

this Court enter an order precluding any argument, evidence or testimony by
defendant Robert Shuler Smith addressed to the legal and constitutional
questions of retaliation, vindictive or selective prosecution.
ATTORNEY GENERAL
s/Robert
G. Anderson

MS Bar No. 1589
Larry G. Baker
MS Bar No. 100569
Of Counsel:
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 576-4254
-5-
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Page 6 of 6
and foregoing Motion to Exclude 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 the16th day of December, 2016.
s/Robert
G. Anderson
Robert G. Anderson
MS Bar No. 1589
-6-
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PLAINTIFF
VS.
CAUSE NO.: 25CI1:16-cr-00836-LER
ROBERT SHULER SMITH
DEFENDANT
______________________________________________________________________________
DEFENDANT ROBERT SMITHS BRIEF IN SUPPORT OF
MOTION TO RECONSIDER COURTS VERBAL ORDERS OF OCTOBER 25, 2016
DECLINING TO DISMISS OR QUASH THE INDICTMENT
______________________________________________________________________________
INTRODUCTION
District Attorney Robert Smiths (hereinafter Smith) criminal indictment arises from his
disagreement with the Mississippi Attorney General concerning Smiths handling charges against
Christopher Butler (hereinafter Butler).
Smith decided not to pursue drug charges against Butler after the Mississippi Bureau of
Narcotics (hereinafter MBN) failed to turn over a videotape of its search of Butlers home.
Smiths disagreement with the Attorney General intensified when Smith investigated whether
employees of the Attorney Generals office and/or law enforcement officers had threatened Butler.
The feud became even more heated when the Attorney Generals office frustrated Smiths attempts
to subpoena various employees of the Attorney Generals office to a Grand Jury investigation.
FACTS
At the January 2012 term of Hinds County Circuit Court, Smith obtained an indictment
against Butler for possessing more than four (4) kilograms of marijuana on January 19, 2011. See
Indictment in State v. Butler, Cause No. 12-452 CRW, Exhibit A.
At the June 2012 term of Hinds County Circuit Court, Smith obtained a second habitual
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offender indictment against Butler. This indictment alleged that on April 13, 2012, slightly more
than one year after the first charge of possession, Butler was in possession of marijuana in an
amount more than one (1) kilogram, but less than five (5) kilograms. See indictment in State v.
Butler, Cause No. 12-831, Exhibit B.
In 2012, Butlers defense attorney Kevin Rundlett told Smith that Butler claimed that the
marijuana seized during the 2011 raid on his house had been planted, and that the MBN refused to
turn over a videotape of the agencys search of Butlers home.
On April 12, 2013, Smith filed a motion seeking dismissal of Butlers indictment on the
grounds that the MBN would not produce a copy of the videotape of its search of Butlers home.
See Motion filed by Smith, Exhibit C.
On January 15, 2014, Smith filed a motion stating that it is imperative that the Hinds
County District Attorney, the highest law enforcement office in Hinds County, Mississippi obtain
possession of the DVR to examine the same and determine whether said DVR contains data that
could be evidence, whether incriminating or mitigating in the above cause. District Attorneys
Motion of January 15, 2014, Exhibit D.
On January 11, 2016, Smith told the Hinds County Circuit Court that it would violate my
prosecutorial ethical duties, as well as the defendants constitutional rights to proceed with the drug
case against Butler. Transcript of January 11, p. 6, Exhibit E.
On January 22, 2015, Smith appeared before Circuit Judge Jeff Weill with defense attorney
Kevin Rundlett, complaining about intentional delay by the MBN and claiming there had been
tampering with the videotape. Smith also alleged that on April 12, 2012, MBN agents entered the
home where Butler resided, and physically tore down the cameras inside of his home. Further,
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Smith alleged that an independent witness, John Ledford, had been present during the 2011 search
and had witnessed racial slurs being used by the white MBN agents toward black persons.
Transcript of Hearing on January 22, 2015, pp. 5-6. Exhibit F.
Judge Weill ultimately denied Smiths request for a nolle pross of the drug charges on the
ground that Smith had failed to follow his order to produce documentation supporting his request
for a nolle pross. See Judge Weills Order, dated May 8, 2015, Exhibit G.
When Smith finally obtained the videotape, he directed Assistant District Attorney Jamie
McBride to examine it. McBride reported suspicious circumstances, including differences between
an MBN agents description of the search, and what was shown on the tape. McBride also reported
that an agent went directly to the hiding place for the marijuana, instead of actually searching the
house as the agents reports had claimed. See Investigative Report of McBride, Exhibit H.
On January 19, 2016 the same date that Assistant Attorney Generals Patrick Beasley and
Shaun Yurtkuran had failed to respond to subpoenas to appear before a Grand Jury the Mississippi
Attorney General made additional charges of fraud and embezzlement against Butler. Subsequently,
Butler wrote letters making the following claim:
Assistant Attorney Generals Patrick Beasley and Shaun Yorkhuran (sic) are trying
to blackmale (sic) me into telling them something that I just dont know. They asked
my attorney Sanford Knott to asked (sic) me what my relationship is with the Hinds
County D.A. The problem is, I dont have one with him but they told my lawyer that
if I dont tell them, that they would give me a bond that is to (sic) high to make bond
that the (sic) would come with more charges.
Letter from Christopher Butler to Robert Glen Waddle, Exhibit I.
Butler also claimed that he had been arrested for a $500 dollar fraud and false pretense with
an excessive bond of $500,000.00 dollars. Id.
In March 2016, Smith attended a preliminary hearing before County Court Judge Melvin
3
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Priester regarding new charges of fraud and false pretense brought by the Mississippi Attorney
General against Butler. During this hearing, Smith agreed with attorney Sanford Knott, who
represented Butler on the new charges in County Court, that under Williams v. State, 184 So.3d 908
(Miss. 2014), the attorney general cannot lawfully prosecute a felony case without the district
attorneys consent. Smith also complained about Assistant Attorneys General Beasley and
Yurtkurans refusal to honor subpoenas issued for them. See Transcript of hearing of March 3,
2016, pp. 20-21, Exhibit J. Judge Priester observed that this is a power struggle, between entities
other than this Court. Id. at 31.
Judge Priester declined to proceed with Butlers preliminary hearing on the fraud and false
pretense charges and kept Butler under a $500,000.00 bond. Transcript of Hearing on March 3,
2016, pp. 29-30.
In May 2016, Smith visited Butler in jail and obtained a written statement from him. Exhibit
K. Butlers family subsequently claimed that various law enforcement officers and had entered
Butlers cell on or about June 12, 2016, and threatened Butler. Therefore, on June 13, 2016, Smith
made unsuccessful efforts to see Butler. A jail employee has given a statement, explaining that in
trying to see Butler, Smith referred to Butler as his client.
During the same time as Smiths ongoing dispute with the Attorney General over Butler,
both the office of the Attorney General and the office of the District Attorney were independently
investigating alleged scams in which the families of criminal defendants were being asked for money
in order to obtain the release of persons who had been sentenced.
In November 2015, Attorney General Jim Hood issued a press release describing such a scam
in Jefferson County. Exhibit L. The press release indicated that Assistant Attorneys General
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Patrick Beasley and Shaun Yurtkuran and Investigator Lee McDivitt all had knowledge about the
Jefferson County scam.
An alleged family member victim, Tracey Chandler, told Smith in 2015 that criminal
defendant Vincent Taylor McGee, Jr. and others, including inmate Marietta Harris, were involved
in the scam in Hinds County. Because Smith had represented McGee before he was elected District
Attorney, Smith sent the McGee criminal file to Assistant Attorney General Stanley Alexander.
When no one from the Attorney Generals office would cooperate with Smith in
investigating the jail scam, and when Chandler told Smith that certain unknown officials were trying
to frame him, Smith subpoenaed Beasley, Yurkuran, and McDivitt, as well as Judge Weill, to
appear before a Grand Jury. The Attorney General moved to suppress the subpoenas. Exhibit M.
Judge Green issued an ex parte order suppressing the subpoenas. However, Judge Green appointed
Special Master Amy Whitten to hold a hearing on the motion to suppress. Following a hearing,
Special Master Whitten refused to suppress the subpoenas of the employees of the Attorney
Generals office, but she did suppress the subpoena of Judge Weill. See Report of Amy Whitten,
Exhibit N.
Still more animosity resulted between the Attorney General and Smith when Beasley and
Yurtkuran evaded process, and Smith moved to hold them in contempt of court. See Motion for
Show Cause, Contempt of Court, and Violation of Uniform Circuit and County Rule 7.04, Exhibit
O.
Unknown to Smith, at the same time that the Attorney General was feuding with Smith over
Butler and over Smiths efforts to subpoena employees of the Attorney Generals office, the
Attorney General and/or FBI were investigating Smith through one of Smiths former employees,
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Assistant District Attorney Ivon Johnson. Former Assistant District Attorney Johnson had pled
guilty in federal court to accepting bribes from criminal defendants. According to a press release
by the Attorney General, and according to statements made by Assistant Attorney General Baker
to The Mississippi Bar Association, the Attorney General and the FBI were conducting a joint
investigation. See Press Release of June 22, 2016, Exhibit P; and see Complaint to Bar by
Assistant Attorney General Larry Baker, Exhibit Q.
Former Assistant District Attorney Johnson is still awaiting sentencing for his bribery
conviction. See Johnson Bill of Information, Exhibit R, and Plea Agreement, Exhibit S.
Johnson has secretly recorded conversations between him and Smith in order to show that Smith was
assisting Butler. The secret tape-recordings discuss whether the District Attorney would have
standing to file a suit a against the Attorney General because of his holding Butler on allegedly
excessive bail and retaliating against Butler. The tapes also indicate that Smith was planning to
get Judge Weill on unspecified charges.
On approximately June 20 and 21, 2016, Assistant Attorneys General Beasley and Yurtkuran
called Assistant District Attorney Jamie McBride to inquire about whether they were being
investigated by the Grand Jury. On June 22, 2016, the Attorney General Investigator McDivitt
arrested Smith. The next day, Circuit Judge Weill signed an Order stripping Smith of the ability to
attend Grand Jury sessions. See Administrative Order of Judge Weill, Exhibit T.1
On August 18, 2016, McBride executed an affidavit describing his conversation with Beasley
and Yurtkuran in which they asked McBride whether they were about to be arrested. See McBride
Affidavit, Exhibit V. Less than a month after McBride gave his affidavit, a Grand Jury, under the
1
This Order was ultimately set aside by the Mississippi Supreme Court. See Order, Exhibit
U.
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supervision of the Attorney General, indicted both Smith and McBride. See Indictment, Exhibit
V.
ARGUMENT I.
THE PROSECUTION OF THIS CASE BY THE ATTORNEY GENERAL
VIOLATES THE DUE PROCESS CLAUSE OF UNITED STATES
CONSTITUTION AMENDMENT FOURTEEN.
This is not the ordinary case in which law enforcement officers made an arrest and brought
a criminal defendant before a prosecutor to prosecute. The Attorney Generals own investigator
signed the criminal affidavit initiating the case. The Attorney Generals investigator arrested Smith
only days after Assistant Attorney Generals Patrick Beasley and Shaun Yurtkuran called Assistant
District Attorney Jamie McBride to inquire about whether they were going to be arrested. McBride
himself was then indicted within weeks after he gave an affidavit relating calls made to him by the
two (2) Assistant Attorney Generals in which they expressed fear of being arrested.
Ignoring the Mississippi Rules of Criminal Procedure requiring the disclosure of the
addresses of criminal witnesses, the Attorney General refuses to disclose the location of a key
witness, Ivon Johnson.
The Attorney General has stripped Smith of another crucial witness by indicting Assistant
District Attorney McBride without any basis for charging him.
The Attorney General made a constitutionally baseless motion to deprive Smith of the
counsel of his choice, a right clearly guaranteed him by the Sixth Amendment to the United States
Constitution under decisive Supreme Court precedent.
As Judge Priester indicated, this case is a power struggle between the Mississippi Attorney
General and Judge Weill on one hand, and District Attorney Smith on the other. A prosecutor
engaged in a power struggle cannot be the fair and impartial prosecutor which due process
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demands. United States v. Wells, 163 F. 313, 328 (D.C. Idaho 1908), found a grand jury indictment
should have been suppressed, when the grand jury had been influenced, among other things, by
political partisanship or personal ill will. Blau v. State, 34 So. 153, 155 (Miss. 1903), noted that
no prosecutor can say to the grand jury that the facts, as shown by the evidence, are sufficient to
authorize them to find a bill. U.S. v. R. Enterprises, Inc., 111 S.Ct. 722, 727 (1991), held grand
juries may [not] select targets of investigation out of malice or an intent to harass. People v.
DiFalco, 44 N.Y.2d 482, 487 (N.Y. 1978), held that grand juries are required to show completely
impartial judgment and discretion.
Young v. United States, 481 U.S. 787 (1987), held it reversible error to appoint a special
prosecutor, where the special prosecutor represented a private client with a financial interest in
obtaining a criminal conviction. The Court held that having a prosecutor with such an interest was
the type of error that was so fundamental and pervasive that [it] require[d] reversal without regard
to the facts or circumstances of the particular case. Young, 481 at 809-810. Here, the Mississippi
Attorney Generals desire to protect his Assistant Attorney Generals from charges of intimidating
a witness is analogous to the financial interest that was held to be prohibited in Young.
Adams v. State, 30 So.2d 593, 596 (Miss. 1947), held that: In conducting a criminal case,
the prosecuting attorney must be fair and impartial, and see that defendant is not deprived of any
constitutional or statutory right. (Emphasis in original). Here, rather than seeing that Smith was
not deprived of any constitutional or statutory right, the Attorney General sought to strip Smith
of his constitutional right to counsel of his choice.
In State of Louisiana v. Marcotte, 86 So.2d 186 (La. 1956), the Louisiana Supreme Court
held that a criminal conviction could not stand, where it was demonstrated that the district attorney
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had a personal animosity against [the] defendant, due to defendants political differences with
the district attorney, and due to defendants support of district attorneys opponent in an election.
. . .
The Attorney General claims that he has the authority to act as special prosecutor under the
authority of MISS. CODE ANN. 25-31-21. This statute refers to the appointment of a private
attorney who shall receive a reasonable compensation for his services, to be allowed by the court
and certified to the auditor, who shall issue his warrant therefor. Obviously, the Attorney General
could not be considered to be special prosecutor under the statute since his salary is paid by the
State.
Assuming, however, that the Legislature intended the courts to have authority to
appoint the Attorney General as a special prosecutor under certain circumstances, the fundamental
fairness requirement of the due process clause of the Fourteenth Amendment forbids his acting as
special prosecutor when he has a personal interest because of his ongoing feud with the person he
is prosecuting.
This Court noted at the October 25, 2016 hearing that it has no authority to pay a private
attorney to act as special prosecutor. See J.S. Love Co. v. Town of Carthage, 65 So.2d 568, 569
(Miss. 1953) (municipality had no authority to hire bond agents since municipality may not make
payments not authorized by law.); Miller v. Tucker, 105 So. 774, 777 (Miss. 1925) ([O]bjects to
which the boards may appropriate money are designated by law, and, . . . in all cases of doubt, they
may resolve the doubt against the appropriation . . . .). The members of the board of supervisors
are personally liable if they allocate funds to any object not authorized by law. Smith v. Dorsey,
599 So.2d 529, 544 (Miss. 1992).
Nevertheless, the Court surely cannot infringe upon Smiths due process rights to a fair
prosecutor merely because the Legislature has not given the Court any authority to appoint a
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prosecutor who does not have a special interest in the matter. Under these circumstances, the
appropriate course is for the Court to dismiss the indictment, but to permit the Attorney General to
petition the Mississippi Supreme Court to appoint some impartial special prosecutor should that
Court find the Attorney General has a factual basis to have an investigation proceed. Such a
specially-appointed attorney should have full authority to investigate not only the District Attorney,
but also the Attorney General, in order to determine whether the Attorney Generals acts in this case
constitute retaliation in violation of MISS. CODE ANN. 97-9-127, or intimidating a witness under
MISS. CODE ANN. 97-9-55.2
MISS. CODE ANN. 97-9-127 provides:
(1) A person commits the offense of retaliation if he intentionally or knowingly harms or

threatens to harm another by any unlawful act in retaliation for anything lawfully done in
the capacity of public servant, witness, prospective witness or informant.
Retaliation is a Class 2 felony.
10
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ARGUMENT II.
COUNTS I AND II OF THE INDICTMENT FAIL TO GIVE SMITH NOTICE
OF THE CHARGE AGAINST HIM AS REQUIRED BY UNITED STATES
CONSTITUTION, AMENDMENTS FOUR, SIX, AND FOURTEEN, BY
MISSISSIPPI CONSTITUTION SEC. 26, AND BY RULE 7.06 OF THE
UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE.
FURTHERMORE, COUNTS I AND II ARE UNCONSTITUTIONALLY
VAGUE, SINCE THEY FAIL TO NOTIFY SMITH OF THE EXACT
CHARGE AGAINST HIM.
Counts I and II of the indictment charge that Robert Shuler Smith and Jamie McBride . .
. did . . . conspire with Ivon Johnson . . . to commit the crime of hindering prosecution. The
indictment does not specify what acts constitute hindering prosecution. Alternative acts which
may constitute hindering prosecution are specified by statute. According to statute, the term
hindering prosecution embraces five specific alternatives any one of which may constitute this
offense. MISS. CODE ANN. 97-9-103.3 Without being told which of the alternative five acts with
which the Grand Jury has charged Smith with conspiring to commit, Smith has not been notified of
the nature of the charge.
Tran v. State, 962 So.2d 1237 (Miss. 2007) involved an indictment which alleged money
laundering, but did not allege the specific unlawful activity from which the defendant had
Specifically, MISS. CODE ANN. 97-9-103 provides:

[A] person renders criminal assistance to another if he knowingly:
(a) Harbors or conceals the other person;
(b) Warns the other person of impending discovery or apprehension, except that this
paragraph (b) does not apply to a warning given in connection with an effort to bring
another into compliance with the law;
(c) Provides or aids in providing the other person with money, transportation, weapon,
disguise or other means of avoiding discovery or apprehension;
(d) Prevents or obstructs, by means of force, deception or intimidation, anyone from
performing an act that might aid in the discovery, apprehension, prosecution or conviction
of the other person; or
(e) Suppresses, by an act of concealment, alteration or destruction, any physical evidence
that might aid in the discovery, apprehension or conviction of the other person.
11
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laundered money. The Mississippi Supreme Court wrote: We find Tran's indictment to be no more
informative than a hypothetical indictment which charges a defendant with entering a conspiracy
to commit some unlawful activity. Tran, 962 So.2d at 1243.
Just as the law required a specification of the unlawful activity in Tran, the law requires
a specification of the acts which Smith conspired to commit in this case.
During the October 25, 2016 hearing, this Court asked Assistant Attorney General Anderson
whether the hindering prosecution involved subparagraphs a, b, or c of MISS. CODE ANN. 97-9103. Anderson answered negatively. The Court then asked Anderson whether the hindering
prosecution referred to subparagraph d, to which Anderson answered affirmatively.
The
Mississippi Attorney General, however, does not return an indictment. The Grand Jury handles
indictments. As Tran explained:
This Court has held, If the grand jury did not know what crime they were charging
against the defendant, how could the defendant know the nature of the crime with
which he is charged? Brumfield, 206 Miss. at 507, 40 So.2d 268. The United States
Supreme Court noted:
. . . To allow the prosecutor, or the court, to make a subsequent guess
as to what was in the minds of the grand jury at the time they returned
the indictment would deprive the defendant of a basic protection
which the guaranty of the intervention of a grand jury was designed
to secure. For a defendant could then be convicted on the basis of fact
not found by, and perhaps not even presented to, the grand jury
which indicted him. Russell v. United States, 369 U.S. 749, 766, 82
S.Ct. 1038, 8 L.Ed.2d 240 (1962).
Tran, 962 So.2d at 1243-44.4
Examples from the facts of this case make the constitutional violation clear. In discovery,
For other cases to the same effect, see State v. Buchanan, 22 So. 875 (1898) (charging entry
of a building with burglarious intent, then and there, to commit some crime to the jurors unknown was
insufficient); State v. Berryhill, 703 So.2d 250, 256 (Miss. 1997) (charge is insufficient when it may be
subject to evolving prosecutorial theories as to the nature of the charge).
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the State has furnished various information that might lead to various theories as to what constitutes
the crime of hindering prosecution. For example, the State has furnished transcripts in which
Smith, in open court, sought to dismiss the charges against Butler. Is Smiths seeking the dismissal
of the charges against Butler what the Grand Jury means by hindering prosecution?
Similarly, the State has furnished in discovery, a videotape in which Smith discusses freeing
Butler, and obtaining counsel for Butler. Is freeing a defendant from excessive bail what the Grand
Jury means by hindering prosecution?
The State has furnished a transcript of a hearing before Judge Priester in which Smith argued
to Judge Priester that the Attorney General had no authority to prosecute a felony case without
notice to the district attorney. Is an argument in open court about whether the Attorney General
must give the District Attorney notice to handle a felony prosecution what the Grand Jury meant by
hindering prosecution?
The State has furnished transcripts in which Smith argues for a nolle pross because of
misconduct of MBN agents. Is arguing for a nolle pross in open court what the Grand Jury means
by hindering prosecution?
Smith cannot be required to guess as to the nature of the charge against him. If Smith is
tried and convicted on this charge of hindering prosecution, it will not be known whether he was
convicted for the same acts for which the Grand Jury indicted him. It is much a violation of due
process to send an accused to prison following conviction of a charge in which he was never tried,
as it would be to convict him upon a charge that was never made. De Jonge v. State of Oregon, 299
U.S. 353, 362 (1937) quoted in Cole v. State of Arkansas, 333 U.S. 196, 201 (1948).
An indictment must contain a statement of the facts and circumstances as will inform the
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accused of the specific offence. . . . Tran, 962 So.2d at 1242. This indictment contains none of the
facts and circumstances constituting a conspiracy to hinder prosecution.
ARGUMENT III.
MISS. CODE ANN. 97-11-3 WHICH IS THE BASIS FOR THE CHARGE
IN COUNT III OF THE INDICTMENT IS FACIALLY
UNCONSTITUTIONAL. THE STATUTE VIOLATES THE FIRST AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, SINCE IT CRIMINALIZES CONDUCT WHICH IS
LAWFUL.
Count 3 of the Indictment charges Smith with meeting with Christopher Butler at the Hinds
County Jail outside the presence of Butlers attorney,. . . . and later advising Butlers attorneys in
various ways to attack the States pending case against Butler, and by other means seeking the
release of Butler from jail. . . .
The above facts are alleged to violate MISS. CODE ANN. 97-11-3 , which criminalizes the
act of an attorney general or any district attorney who in any manner [does] consult, advise,
counsel, or defend,. . . . a person charged with a crime.
By its terms, MISS. CODE ANN. 97-11-3 criminalizes conduct which the law favors. For
example, Miss. R. Professional Conduct 3.8(b) requires a prosecutor to make reasonable efforts to
assure that the accused has been advised of the right to, and the procedure for obtaining, counsel.
. . . Miss. R. Professional Conduct 3.8(d) requires the prosecutor to make timely disclosure to the
defense of all evidence or information known to the prosecutor that tends to negate the guilt of the
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accused or mitigates the offense,. . . . Uniform Rule of Circuit and County Court (URCC)
8.04(b)(1) provides: The prosecuting attorney is encouraged to discuss and agree on pleas which
may be entered by the defendant. Any discussions or agreements must be conducted with defendant's
attorney, or if defendant is unrepresented, the discussion and agreement may be conducted with the
defendant.
Further, URCC 8.04(b)(2) provides:
The prosecuting attorney, defendant's attorney, or the defendant acting pro se, may
reach an agreement that upon an entry of a plea of guilty to the offense charged or
to a lesser or related offense, the attorney for the state may do any of the following:
a.
b.
Move for a dismissal of other charges; or

Make a recommendation to the trial court for a particular sentence,. . . .
If valid, MISS. CODE ANN. 97-11-3 prohibits plea bargaining, since a plea bargain includes
advising the defendant of the advantages to him of providing states evidence or entering a guilty
plea instead of going to trial. [M]ost of the time [a guilty] his plea has been exchanged for some
type of sentencing consideration. Wesley M. Oliver, The Present and Future Regulation of Plea
Bargaining: A Look at Missouri v. Frye and Lafler v. Cooper, 2012 Cato, S.Ct. Rev. 258.
Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978), held that a prosecutor may constitutionally
advise a criminal defendant that he will receive a five (5) year sentence if he pleads guilty, but he
will be charged with a habitual offender charge carrying life imprisonment if he goes to trial.
If valid, MISS. CODE ANN. 97-11-3 overrules Bordenkircher. That case approves the
district attorneys advising a criminal defendant about the dire consequences which will befall him
if he does not agree to plead guilty. But MISS. CODE ANN. 97-11-3 does not permit a prosecutor
to advise a criminal defendant.
Contrary to the allegations in this indictment, Mississippi district attorneys have the sole
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discretion as to how and whether to proceed with a criminal case. According to Williams v. State,
184 So.3d 908, 911-12 (Miss. 2014) reh'g denied (Oct. 15, 2015), [n]either the Constitution nor any
case law authorized . . . .Judge Weill's orders appointing the Office of the Attorney General as
special prosecutor to prosecute the case against Williams, where the local district attorney, in his
discretion, had made the decision not to prosecute. If valid, MISS. CODE ANN. 97-11-3 would
overturn Williams, because the Attorney General may prosecute the district attorney if he uses his
discretion not to prosecute a criminal case. This contradicts Williams holding.
MISS. CODE ANN. 97-11-3 is not saved merely because a judge or jury might find that the
acts would constitute illegally defending a criminal defendant. Johnson v. United States, ___ U.S.
___, 135 S.Ct. 2551, 2560 (2015), involved a statute which provided enhanced sentences for those
found guilty of committing a crime which posed a serious potential risk of physical injury to
another. The United States Supreme Court held this terminology was unconstitutionally vague
even though some crimes clearly pose a serious potential risk of physical injury to another. Id.
The Court stated:
[O]ur holdings squarely contradict the theory that a vague provision is constitutional
merely because there is some conduct that clearly falls within the provision's grasp.
For instance, we have deemed a law prohibiting grocers from charging an unjust or
unreasonable rate void for vaguenesseven though charging someone a thousand
dollars for a pound of sugar would surely be unjust and unreasonable. L. Cohen
Grocery Co., 255 U.S., at 89, 41 S.Ct. 298. We have similarly deemed void for
vagueness a law prohibiting people on sidewalks from conduct[ing] themselves in
a manner annoying to persons passing byeven though spitting in someone's face
would surely be annoying. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29
L.Ed.2d 214 (1971).
Johnson, 135 S.Ct. at 2561.
Johnson controls. During oral argument, the Court asked the assistant attorney general
whether his charges were intended to charge Smith with using the Grand Jury to pressure Judge
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Weill. This is, of course, an example of an act that this Court may believe constitutes aiding a
criminal defendant. Yet, according to Johnson, the mere fact that some [crimes] clearly pose a
violation of a statute does not save a statute which criminalizes lawful acts.
Five years before Johnson, the Supreme Court had indicated Johnsons ultimate result in
Skilling v. United States, 561 U.S. 358 (2010). In Skilling, the United States Supreme Court
considered the constitutionality of a statute which outlawed any scheme or artifice to deprive
another of the intangible right of honest services. Skilling, 561 U.S. at 402. Defendant Skilling
and others were prosecuted for violating this statute because they engaged in a wide-ranging
scheme to deceive the investing public, including Enron's shareholders, ... about the true
performance of Enron's businesses by: (a) manipulating Enron's publicly-reported financial results;
and (b) making public statements and representations about Enron's financial performance and
results that were false and misleading. Skilling, 561 U.S. at 369. The United States Supreme Court
held this statute not unconstitutionally vague only because prior cases had limited those who could
be prosecuted to those who had participated in bribery or kickback schemes. Id. at 365. The
Supreme Court held the statute constitutional only if it be limited to include only bribery and
kickback schemes, since many precedents make bribery and kickback schemes criminal acts. The
Supreme Court stated:
[T]here is no doubt that Congress intended 1346 to reach at least bribes and
kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we
acknowledge, would raise the due process concerns underlying the vagueness
doctrine. To preserve the statute without transgressing constitutional limitations, we
now hold that 1346 criminalizes only the bribe-and-kickback core of the preMcNally case law.
Skilling, 561 U.S. at 408-09 (footnotes omitted).
Assuming Johnson does not overrule it, Skilling permits an otherwise vague statute to be held
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constitutional if sufficient precedent clearly define those acts which are criminal. Unlike Skilling,
there are no precedents in Mississippi defining what acts constitute a crime under MISS. CODE ANN.
97-11-3. There is not a single Mississippi case where there has even been a prosecution, other
than this one, under MISS. CODE ANN. 97-11-3.
In fact, MISS. CODE ANN. 97-11-3 is probably intended to address only the issue of parttime district attorneys defending criminals. MISS. CODE ANN. 97-11-3 was carried over from the
Mississippi Code of 1930. At that time, district attorneys were part-time state employees. This
changed in 1978 with the enactment of MISS. CODE ANN. 25-31-39, which provides for the
abolishment of part-time district attorneys and requires district attorneys to serve full-time. As
applied to part-time prosecutors, MISS. CODE ANN. 97-11-3 serves the common-sense purpose
avoiding unfair competitive advantages for district attorneys who also defend criminal cases. The
literature which addresses statutory provisions similar to MISS. CODE ANN. 97-11-3 all involve
part-time prosecutors. For example, Richard H. Underwood, Part-Time Prosecutors and Conflicts
of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1, 11 (1992/93), notes that [i]In virtually
every state there are ethics opinions stating that a part-time prosecutor may not defend in criminal
cases. . . .
At the hearing on October 25, 2016, this Court stated that it could not find a statute
unconstitutional unless it so finds beyond a reasonable doubt. Cases such as City of Belmont v.
Mississippi State Tax Comn, 860 So.2d 289, 307 (Miss. 2003), agreed that unconstitutionality must
appear beyond reasonable doubt.
But in this case, Smith challenges the statute on grounds that it violates not just the
Mississippi Constitution, but also the First and Fourteenth Amendments to the United States
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Constitution. State procedural rules concerning the standard of review do not apply since the United
States Constitution Supremacy Clause provides: This Constitution, and the Laws of the United
States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S.
Const. Art. VI. Because of this Supremacy Clause, decisions of the United States Supreme Court,
rather than decisions of the Mississippi Supreme Court interpreting the state constitution, control.
The United States Supreme Court decisions do not use a reasonable doubt standard in
order to determine whether statutes are unconstitutionally vague. Rather, Johnson v. United States,
___ U.S. ___, 135 S.Ct. 2551 (2015), used a categorical approach, under which a court assesses
. . . how the law defines the offense and not in terms of how an individual offender might have
committed it on a particular occasion. Johnson, 135 S.Ct. at 2557. Similarly, Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972), another leading vagueness case, assessed whether a statute
is so vague that it impermissibly delegates basic policy matters to . . . judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.
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Filed: 11/07/2016
RESPECTFULLY SUBMITTED, this the 7th day of November, 2016.

ROBERT SMITH, Defendant
By:
/s/ Jim Waide

Jim Waide, MS Bar No. 6857
waide@waidelaw.com
WAIDE & ASSOCIATES, P.A.
332 North Spring Street
Tupelo, MS 38802-3955
Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile
ATTORNEYS FOR DEFENDANT
20
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Filed: 11/07/2016
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This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, utilizing this Court's electronic case data filing system, which
sent notification of such filing to the following:
Assistant Attorney General Robert Anderson
P. O. Box 220
Jackson, MS 39205
rande@ago.state.ms.us
Assistant Attorney General Larry Baker
P. O. Box 220
Jackson, MS 39205
lbake@ago.state.ms.us
VIA EMAIL:
Judge Larry Roberts
lroberts_judge@yahoo.com
VIA EMAIL:
Damon R. Stevenson, Esq. (Attorney for Christopher Butler)
Stevenson Legal Group, PLLC
1010 N. West Street
Jackson, MS 39202-2568
damon.steven@gmail.com
VIA EMAIL:
Dale Danks, Jr., Esq. (Attorney for Jamie McBride)
P. O. Box 1759
Jackson, MS 39215
ddanks@dmc-law.com
SO CERTIFIED, this the 7th day of November, 2016.
/s/ Jim Waide

JIM WAIDE
21

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

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

ROBERT SHULER SMITH

video of Smith and Ivon Johnson fishing together.

/s/ Jim Waide

WAIDE & ASSOCIATES, P.A.

/s/ Jim Waide

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

CAUSE NO. 25CI1:16-cr-00836

ROBERT SHULER SMITH

RESPONSE TO DEFENDANT SMITHS MOTION TO SUPPRESS

In response to said motion, the State of

Mississippi would show the Court the following:

Despite Smiths argument to the

This renewed motion to suppress is simply a rehashing of the

defendants earlier motion to exclude. Both motions should be denied.

1st day of December, 2016.

BY: Robert G. Anderson

day of December, 2016.

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

ROBERT SHULER SMITH

STATE OF MISSISSIPPIS MOTION TO EXCLUDE

messages, such as a series of text messages purportedly between Smith and

THIS the 16 th day of December, 2016.

BY: Robert G. Anderson

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

WA.LLA.C. CIRCUIT CLERK

MOTION FOR ORDER TO COMPEL RECIPROCAL DISCOVERY OR IN THE

Names and addresses of all witnesses proposed to be offered by the defense at

Any reports, statements, or opinions of experts, which the defendant may

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

ZACK WALLACE, CIRCUITCLER~AUSE NO. 25CI1;16-cr-00836-LER

MOTION TO STRIKE WITNESS JAMES ROBERTSON

Special Assistant Attorney General

CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

ROBERT SHULER SMITH

Legal ethics and lawyers' professional responsibility

Jurisprudence, legal philosophy, including the practice and process of legal

A Mississippi prosecuting attorney enjoys tremendous discretion in the performance

ofthe duties of his office. This discretion includes, inter alia:

Whether vel non to call particular witnesses;

Whether vel non to proffer particular evidence;

Miss. Code 97-11-3, as it presently reads, is constitutionally unenforceable for any

number of arguable reasons, including:

It is inconsistent with Borderkircher v. Hayes, 434 U.S. 357, 365 (1978)

It is inconsistentwithBradyv. Maryland, 373 U.S. 83 (1963),whichrequires

Robert H. Jackson, "The Federal Prosecutor", An Address to the Conference of United

It is widely accepted in this country, including in Mississippi that:

Comment to Rule 3.8, Mississippi Rules of Professional Responsibility.

Connickv. Thompson,563 U.S. 51 (2011). Howironicthat,inanerawhensomewherearound98%

Comment to Rule 3.3(c), Mississippi Rules of Professional Responsibility, and

The Lawyer as Hero, 53 Miss. L. J. 431 (1983).

Problems of Valuation and Equalization in Mississippi's Ad Valorem Tax System, 48

Jurisdictional Dilemma in Pleasure Boat Accident Cases, 8 Miss. Defense L. J. 8 (1973).

Remedies for Injured Drydock Workers, 21 Federal of Insurance Counsel Quarterly 55

The Uniform Consumer Credit Code in Mississippi, 54 Miss. Banker 13 (1970).

Consumer Protections Under the Uniform Consumer Credit Code, 41 Miss. L. J. 36

Application ofData Processing Techniques to the Uniform Commercial Code Filing

Recent Cases Handled As Lawyer

Complaintv. An Attorney, MB Docket No. 07-455-2

Complaint v. An Attorney, MB Docket No. 05-378-2

Complaint v. An Attorney, MB Docket No. 02-232-1

Schwartz v. Welch, 890 F. Supp. 565 (S.D. 1995)

Cases In Which Appeared As Expert Witness