One of the first questions that a person who is accused of a sex offense usually asks is “Will I have to register as a sex offender if I’m convicted?”  Under the Jacob Wetterling Act, and the Adam Walsh Child Protection and Safety Act, all states must construct registries of offenders convicted of sexually violent offenses or offenses against children, and must design and implement registration requirements for sex offenders.

In Mississippi, you must register as a sex offender if:

1. you have been convicted of any sex offense or attempted sex offense, or
2. acquitted by reason of insanity for any sex offense or attempted sex offense, or
3. adjudicated delinquent for any sex offense or attempted sex offense, must register as a sex offender. 

Miss. Code Ann § 45-33-23(g).  This includes juveniles older than 14 that are convicted of certain offenses, temporary residents of Mississippi, nonresident workers, part-time students in Mississippi, and military personnel in the state. 

The crimes in Mississippi that, by their definition, require registration as a sex offender are:

• § 97-3-53 Kidnapping, if the victim was below the age of eighteen (18)
• § 97-3-65 Statutory rape
• § 97-3-71 Rape and assault with intent to ravish
• § 97-3-95 Sexual battery
• § 97-5-5 Enticing a child for concealment, prostitution or marriage
• § 97-5-23 Touching of a child, or a mentally defective, incapacitated or physically helpless person for lustful purposes
• § 97-5-27 Dissemination of sexually oriented material to children; computer luring of minor to engage in sexual conduct
• § 97-5-33 Exploitation of a child
• § 97-5-41 Carnal knowledge of a stepchild, adopted child or child of a cohabiting partner
• § 97-29-59 Unnatural intercourse
• § 97-1-7 Attempt to commit any of the above-referenced offenses
• § 97-29-3 Adultery or fornication between teacher and pupil
• § 43-47-18 relating to sexual abuse of a vulnerable adult
• § 97-3-54.1 (1)(c) Procuring sexual servitude of a minor
• § 97-29-63 Filming another without permission where there is an expectation of privacy
• Any offense committed in another jurisdiction, which would be considered one of the above in Mississippi
• Any offense committed in another jurisdiction for which registration is required in that jurisdiction
• Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in the statute

Miss. Code Ann. § 45-33-25(g).  The registration process is relatively straightforward, requiring (1) the offender report to a registering agency (county sheriff’s office, the Mississippi Department of Corrections, etc.) and complete the registation forms, be photographed, fingerprinted, and submit a DNA sample, and (2) presenting these documents to a local Mississippi Department of Public Safety Driver’s License station with a $5.00 fee.  There are certain time limits that must be observed when registering, and it is a felony (up to 5 years, $5000.00 fine) to fail to comply with any of the registration requirements.

If you have been accused of one of the sex crimes above, you are right to be concerned about registration requirements.  It will certainly affect your ability to find a job, or even a place to live.  You won’t likely be accepted into most colleges or other education programs, and your privacy will be affected forever.  You need to know your rights prior to making any big decisions if you are charged with a sex crime.  Give me a call and I will explain them to you.

Recently, 22 members of the Jackson State University Sonic Boom marching band were caught up in an investigation into alleged hazing of freshmen band members.  Ultimately they received varying degrees of punishment from JSU depending on their level of culpability, including getting kicked out of the band, community service, fines, classes, and suspensions. 

These were punishments that the university applied administratively, but know this: Mississippi is one of 42 states in which hazing has been defined as a crime.  Section 97-3-105 of the Mississippi Code Annotated is a very straightforward statute.  Read it yourself:

1. A person is guilty of hazing in the first degree when, in the course of another person’s initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person and thereby causes such injury.
2. Any person violating the provisions of subsection (1) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than Two Thousand Dollars ($2,000.00) or imprisonment in the county jail for not more than six (6) months, or both.
3. A person is guilty of hazing in the second degree when, in the course of another person’s initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person.
4. Any person violating the provisions of subsection (3) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00).
5. The provisions of this section shall be in addition to other criminal laws, and actions taken pursuant to this section shall not bar prosecutions for other violations of criminal law.

So Mississippi recognizes two degrees of hazing, both classified as misdemeanors, depending on whether someone gets hurt or not.  Again, these are the criminal penalties that can be enforced by the state against you, but this does not necessarily stop the institution from punishing you administratively according to their disciplinary policy.

A recent academic study found that 55% of college students involved in clubs, teams, and organizations have experienced some form of hazing.  It is a wide-spread problem, with lasting consequences if you are convicted in court or punished by your school.  If you’ve been accused in a hazing incident, don’t make a rash decision without knowing your rights.  Give me a call for a free consultation.

Yes.

This is called an “alibi defense.”  Although an “alibi defense” is sometimes referred to as an affirmative defense, it is really just a denial that you committed the crime.  But Mississippi courts have said that it must be more than just a simple denial.  In order for it to be considered an alibi, the facts must be such that it would be physically impossible for you to be at the crime scene.  In other words, being in the next room at the time of the crime is probably not an alibi, but being in the next county is.  Even so, raising an alibi defense does not shift the burden of proof away from the prosecution having to prove every element of the crime against you.  In other words, you don’t have to prove that you were somewhere else; you simply can just raise the issue.  The prosecution will then have to disprove the alibi beyond a reasonable doubt.  

For this reason, Uniform Rule of Circuit and County Court Practice 9.05 requires the defense, upon written demand from the prosecution, to provide the places where the defendant was at the time of the crime, and the names and contact information of any witness that can confirm it.

I have used alibi defenses in some cases, with varying degrees of success.  For example, the defense of “I was with my battalion in Iraq at the time they say the crime was committed” is a very good alibi defense, whereas “I was at my Mom’s house in Flowood, and my Mom will come testify for me” is not as good, as you can imagine. 

But if you’ve been accused of a crime, you are going to want your lawyer to explore every possible defense you may have, and to exploit every weakness in the prosecution’s case.  If you need help with a criminal issue, give me a call at 601-991-1099.

The Assimilative Crimes Act (18 U.S.C. § 13) is the law that allows the federal government to use state law to prosecute offenses committed on federal government land or in federally owned buildings. 

When a criminal offense has been committed on land or buildings that have been reserved or acquired by the federal government, and the offense is not defined under federal law, state law will apply to the offense under the Assimilative Crimes Act.  When the federal government decides to prosecute the offense – through the U.S. Attorney’s office - it is not enforcing the state law.  It is enforcing federal law and order by applying the state law to the offense.

State law is applied under the Assimilative Crimes Act only when the U.S. Congress has not enacted a statute that prohibits a criminal offense.  For example, generally there is no federal crime of murder, but each state, including Mississippi, has enacted laws providing the legal elements of murder, manslaughter, etc.  If you were to kill someone on federal land in Mississippi, you would likely be prosecuted in federal court, but that court would apply, or “incorporate,” Mississippi’s definition of murder.  The federal court would require the prosecutors to prove all of the elements of your charged offenses according to Mississippi law.

Under the ACA, the federal government may not apply state regulatory laws to a criminal offense.  Also, the federal government may not incorporate state administrative penalties to a criminal offense, such as the suspension of a driver’s license or any other state license.  When a federal court applies state substantive law, and possibly federal procedural law and the federal sentencing framework, it can make even the most mundane criminal matter complex and confusing.  It is not a place to be without competent advice.  If you find yourself in federal court charged with an offense defined by state law, give us a call.

Unlike most driving under the influence (DUI) cases, which are prosecuted in local state courts, arrests that take place on land owned by the federal government are prosecuted in federal court.  And Mississippi is blessed with a very nice expanse of federal land that stretches across our state, that being the Natchez Trace.  This is not your normal DUI . . .

You can be tried for a DUI in federal court in two different ways.  First, if you are arrested on land that is governed by the National Park Service, you would be tried under the Code of Federal Regulations (federal law).  Under the Code of Federal Regulations, drunk-driving in a national park is a Class B misdemeanor, and punishment can include up to six months in a federal penitentiary and a fine of up to $5,000.  You also can be placed on probation for up to five years.  Second, if you are arrested on any other type of federal property, you could be charged in federal court using Mississippi state laws and penalties through the Assimilative Crimes Act.

The process for a federal DUI charge is similar to the state DUI process, in that if you are pulled over for driving under the influence on federal property, you will be asked to take a chemical test (breath, blood, or urine) to measure your blood alcohol concentration.  If you refuse, you will automatically be arrested for a DUI, and stand to get your driving privileges suspended.  If you get convicted for a federal DUI, you can be sentenced to a federal penitentiary or prison, and you fines, probation, DUI School, and loss of the right to drive on federal property.  Depending on the circumstances and severity of your case you may also face additional penalties.

If you receive a DUI on the Trace, or any other federal property, give me a call.  I will look over the facts of your federal DUI charges and do my best to put together a winning defense on your behalf to obtain the best possible outcome.

[Clarence has been the Criminal Justice Act Panel Representative for the Southern District of Mississippi for the past two years.  He is in federal court frequently, representing those accused of federal crimes from the smallest misdemeanors to large drug conspiracies, white collar investigations, and violent crimes.]

Commentators frequently lament the fact that Mississippi is at or near the bottom of most statistical lists when compared to other states. Guess what?  We finally topped one.  A recent article shows that the District Court for the Southern District of Mississippi is one of the most active federal district courts in terms of per capita white collar criminal convictions.  Federal District Judge Louis Guirola, Jr., based in Hattiesburg, was ranked second on the list of federal judges in terms of number of white collar convictions.  So there is no shortage of white collar crime in Mississippi.  In fact it is on the rise. 

A white collar crime is a non-violent illegal activity, usually some type of theft, that involves deceit.  White collar crimes are typically committed by business people or public officials, but depending on the crime, there is no stereotypical white collar criminal.  We’ve been going through some difficult financial times lately, and Mississippi has been hit hard like everywhere else. 

Does this mean there is more white collar crime in these bad times than in good times, when everyone is making money?  Probably not.  Check out this post from a former white collar criminal-turned authority on the subject.  The analogy of “bodies floating to the surface” is colorful, to say the least. 

White collar crimes include:

• Antitrust violations
• Bribery
• Counterfeiting
• Economic espionage
• Embezzlement
• Extortion (blackmail)
• Falsifying business records
• Environmental law violations
• Money Laundering
• Corruption of Public Officials
• RICO violations
• Tax evasion
• Fraud, in all of its various forms, including:
  • Bankruptcy fraud
  • Credit card fraud
  • Financial fraud
  • Government fraud
  • Healthcare fraud – including Medicare and Medicaid Fraud
  • Mail fraud
  • Securities fraud
  • Computer fraud

If you’ve been notified by the government that you are the target of an investigation, or your business gets an unfriendly visit from people bearing warrants, get a lawyer involved immediately.  Never underestimate the power of the government when they want something.  Once the prosecutor’s attention is focused on you, you are going to need help.  White collar crime investigations can be long, drawn out, and devastating to their target.  More than just jail time and fines are on the line. Your business reputation and career are at stake. 

The goal of any representation in a white collar investigation or indictment should be “holistic” in nature, keeping your stress level down, and to minimizing the impact that the investigation or charges may have on you.  These cases are sophisticated in nature, require lots of attention, and are always complex.  Some free advice on the house - choose your lawyer wisely.

Big jury trial in Madison County for the past two weeks.  School teacher Carla Hughes has been on trial for the murder of Avis Banks, the fiance of her lover, Keyon Pittman.  There have been more twists and turns in this trial than a Grisham novel, and I have exercised my right to remain silent on the matter, until now.

Today, after deliberating for only ten minutes, the jury sent out a question to the Judge, asking “Could the state have called the defendant to testify?”  The answer is absolutely not, but the question itself is very interesting.

The Fifth Amendment to the U.S. Constitution says, plain as day, that “No person . . . shall be compelled in any criminal case to be a witness against himself.”  The Mississippi Constitution says “In all criminal prosecutions the accused . . . shall not be compelled to give evidence against himself.”  I have no doubt the jury was instructed along these lines before they were dimissed to begin deliberating, but as the jury was probably read pages and pages of instructions by the judge, they can be forgiven for missing this one, which was probably buried somewhere in the middle.

All that a question like that does for me is to confirm my belief in the jury trial as the best process for resolving conflict in this country.  Apparently the facts in the Hughes case are so close that the jury felt a compelling need to hear from the Defendant before reaching a verdict.  They needed to either hear the Defendant confidently and sincerely state that she didn’t do it, or they needed to witness her screwing up so bad on the witness stand that their decision to convict would be easier.  Unfortunately they are going to have to make their decision without Ms. Hughes’s testimony, or fail to reach a verdict.  It has been my experience that, even in cases where the evidence seems overwhelming, a jury of twelve people can find any number of things to think about before deciding someone’s fate.

The Hughes trial is a capital murder trial.  Ms. Hughes could be sentenced to death based on the outcome of this trial.  Now that we know that the Defendant’s testimony is obviously of great concern to this jury, imagine how important the decision was on whether or not she should take the stand.  Lots of drama in a criminal trial, and lots of important decisions to make.  In the end all we can hope for is that justice will be done.

Back in August, I posted about an alarming increase in female DUI arrests and convictions, based on a national study.  This article in the Clarion Ledger in Jackson today confirms that Mississippi is in line with that national trend.  The article shows that, according to Mississippi Department of Public Safety statistics, female DUI arrests in Mississippi have risen every year but two since 1998.

The article really doesn’t offer any scientific explanation, and I won’t either.  I think that Chief Tyrone Lewis, interim chief of the Jackson Police Department, probably summed up the general attitude of law enforcement when he said  ”To us, a DUI is a DUI, regardless of gender.”  DUI is an equal opportunity crime, and while this noticeable trend may be a good research project for someone in academia, in the meantime we will keep holding the government to its burden of proof, case-by-case, regardless of gender.

This firm aggressively defends DUI cases.  Your telephone consultation or visit to our law firm is immediate and it is free.

If I have learned one thing about jail, it is this:  it is better to be out than in.  Most of the time you won’t have a choice in the matter, and so when you are arrested, one of several things is going to happen:

• they are going to let you go;
• they are going to keep you in jail;
• you are going to get ROR’d (released on your own recognizance) until your trial; or
• you will be released after posting bail.

The terms “bail” and “bond” are often used interchangeably, but they are not the same thing.  “Bail” is the money or something else of value that you deposit with the court in order to secure your release until your case can go to trial.  A “bond” is a percentage of your bail amount that you can put up to gain your release. 

You have a constitutional right to bail that is not excessive, guaranteed by both the U.S. Constitution and the Mississippi Constitution.  Mississippi courts will consider the following factors when setting your bail after your arrest: 

1. length of residence in the community;
2. employment status and history and financial condition;
3. family ties and relationships;
4. reputation, character and mental condition;
5. prior criminal record, including any record of prior release on recognizance or on bail;
6. identity of responsible members of the community who would vouch for defendant’s reliability;
7. nature of the offense charge and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and
8. Any other factors indicating ties to the community or bearing on the risk of willful failure to appear.

Shook v. State, 511 So.2d 1386, 1387 (Miss. 1987).  In practice, your bail may be set anywhere from $1000.00 for a misdemeanor to hundreds of thousands of dollars when it comes to very serious crimes.  If you believe your bail was set too high, you need to get a lawyer involved to request a hearing on your behalf to get your bail reduced.  But once your bail has been set, there are generally three options available to you:

1. Cash bond – you can deposit the entire amount of your bail in cash.  The court will hold your money until you make all of your court appearances and your case is over.  At the end of your case, if you have made all of your appearances, you will receive all of your money back, minus court costs, fines, etc., if any.
2. Property bond – the court will post a lien on property you own, and if you don’t make all of your appearances the court will foreclose on your property to obtain the bail amount.  Property bonds are rarely an option.
3. Bail bond – a bail bond is a contract between you and a bonding agent whereby this agent pays your bail, and guarantees to the court that you will make your appearances.  Because most people can’t come up with the entire amount of their bail in cash, a bail agent is involved in most cases.   

Bail premium amounts (the amount you must pay the bail agent) in Mississippi are established by law. Section 83-39-25 of the Mississippi Code Annotated states that the bail premium shall be ten percent, or $50.00, whichever is greater, for a resident of Mississippi.  For a nonresident, or a person charged with a capital offense, the bail premium shall be fifteen percent, or $50.00, whichever is greater.  For example, if your bail is set at $50,000.00, you are looking at approximately $5000.00, plus incidental fees and costs.  Unlike posting a cash bond, you will NOT get this premium back.

In practice, if you or a close friend or a family member have been arrested, you should call a lawyer or a bail agent immediately.  I work closely with several bail agents, and have them on call 24 hours a day.  But if you call the bail agent first, try to have as much of the following information as possible:

• Arrested person’s full name, date of birth and place of birth
• Jail name and city or state the person was arrested
• The date the person was arrested
• Type of crime charged
• Amount of bail
• A major credit card

It is the bail agent’s job to get you out of jail.  It is my job to keep you out.  If you have any questions regarding bail issues, or need help getting bail reduced in a case, give me a call at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.  Or you can e-mail me at clarence@guthriefirm.com.

If you get convicted of a DUI (1st Offense) in Mississippi, part of the punishment is that the Mississippi Department of Public Safety is going to suspend your driver’s license for no less than 90 days, or until you complete the Mississippi Alcohol Safety Education Program, whichever is longer.

Unless you refused to take a “chemical” test (breath, blood, or urine), you can apply to get your license back after only 30 days of suspension, on the basis of a “hardship.”  This is a separate action, filed in a separate court, from your DUI.  You have to show the court that the long suspension would “hinder your ability” to:

1. continue your employment;
2. continue your education; or
3. obtain necessary medical care.

Normally this must be shown with affidavits from your boss, your school, or your doctor.  But once you have the required documentation, it is usually not too difficult to get your suspension down to 30 days.  Then you go back to the Department of Public Safety, pay your reinstatement fee, and get your license back.  Taking you through this process is a service I provide with every DUI representation, if you meet the requirements.

On a related note, upon your conviction of a DUI (2nd Offense), your license will be suspended for two years.  The court will order that you undergo a drug and alcohol assessment, and IF it is determined that you need treatment for an abuse problem, and IF you successfully complete the treatment, THEN you can get your license reinstated after only one year. 

If you get convicted of a DUI (3rd Offense), you are going to be doing some time, and guess what?  You will be losing your license for five years.  IF you go through  the assessment, and IF you successfully complete the required treatment, THEN you are eligible for reinstatement after three years.  This relief from the suspensions after subsequent DUI convictions is not called ”hardship” relief per se, but I can help you with these as well.

If we beat your DUI then you won’t need a hardship license.