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Clarence Guthrie Appears on WLBT’s Law Call to Discuss DUI in Mississippi

December 19, 2010

Law Call WLBT DUI

Last night I went to the WLBT studios and appeared on “Law Call,” a live call-in show hosted by my friends Rocky Wilkins and Tim Porter, and my new friend Tamika Smith.  Every show highlights one call-in topic.  I went to law school with Rocky, and I go to church with Tim, and they asked me to come down and discuss one of my favorite subjects, DUI in Mississippi.

The live calls were intelligent and timely, and we were able to touch on some great topics, including:

As we discussed, a good DUI attorney will spend 50% of the time on your case actually working on and trying your case.  The other 50% is spent educating you on the process, debunking myths that are out there about DUI, and making certain that you always know what is going on with your case.

I’ve been on TV before (when you come see me ask me about Bob Barker and The Price is Right), but I’m always fascinated with how TV shows are produced, and it is exciting to be in a TV studio.  I had a great time, and I hope we were able to put some good information out there.  I was told the telephone lines were lit up, and some people didn’t get to ask their questions in our limited 30-minute show.  If that is you call me at my office at 601-991-1099, and I’ll be glad to help you.

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What is the “merger” doctrine, and does it apply in Mississippi?

December 15, 2010

Yalobusha County Courthouse - Coffeeville, Mississippi

The “merger doctrine” has to do with the Double Jeopardy Clause, which is included in the Fifth Amendment to the U.S. Constitution.  Most everyone has a basic understanding of double jeopardy; it prevents you from being tried, convicted, and sentenced for the same crime twice.  The doctrine of “merger” allegedly alleviates problems with double jeopardy.  If you only do one criminal act, but it can be charged several different ways, the doctrine of “merger” is supposed to save you from being punished several times for only one criminal act.  You commit one act, you are charged with one crime, and you’ll be sentenced only once.

Here is an example of how merger is supposed to operate:

 

BUT GUESS WHAT?

Mississippi does not follow the doctrine of merger.  In 1986, the Mississippi Supreme Court decided that Mississippi would not follow the merger doctrine, at least in a murder context.  Someone broke into a home with the intent to kill a person (that would fit the crime of burglary, which is the breaking and entering of a dwelling house (where someone lives) with the intent to commit a crime inside).  And if someone is killed while you are in the commission of certain other felonies in Mississippi, regular murder can be elevated to capital murder.   But the person did actually kill someone, and they argued on appeal that Mississippi should adopt the “merger doctrine,” and hold that they should have only been convicted of murder, and not capital murder.  The Court held:

We decline to adopt the merger doctrine and hold that under our felony-murder statute, the underlying felony does not merge into the murder. Our statutory provisions dealing with murder and the particular felony, in this case, burglary, are intended to protect different societal interests. When the appellant entered the home of [a person] with the intent to commit a crime therein, i.e., to kill [the victim], the burglary was complete and the subsequent killing of [the victim] elevated the crime of murder to that of capital murder. We find the appellant’s argument unpersuasive.

Smith v. State, 499 So.2d 750, 754 (Miss. 1986).  Merger (at least in this context) has been rejected in every Mississippi appellate court decision since then.

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If I win my appeal, will the prosecutor drop the charges?

December 14, 2010

Adams County Courthouse - Natchez, Mississippi

 

 Maybe.

If we appeal your case, fully brief it, argue it, and convince an appellate court that the trial judge should not have admitted certain evidence, or a confession or admission, then the prosecutor may make the decision that the case cannot be won without that evidence.  They may then not want to retry the case, and will dismiss the charges.  Trials are expensive for all parties, and if key evidence is suppressed up front, or an appeals court reverses the trial court’s decision and sends your case back to be retried, one of our first strategies will be to convince the prosecutor to dismiss the case, or to work out a favorable resolution for you.

The Guthrie Firm handles criminal defense cases, both trials and appeals, in courts all over the state of Mississippi, and in federal courts nationwide.  Your initial consultation will not cost anything.  Call us at 601-991-1099 or email Clarence at clarence@guthriefirm.com.

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Mississippi Crime of the Week – Destruction of Signs, Posts, or Boards

December 13, 2010

Jackson Municipal Court - Jackson, Mississippi

How in the world did someone climb at least 30 feet in the air, in the middle of Jackson, Mississippi, on the Interstate, in defiance of traffic cameras, and paint cryptic sayings on the overhanging signs?  And why did they write things like “Live in this moment,” and “This is the path we take,” instead of the standard “Hotty Toddy” or “Julie will you marry me?”  Whoever did it has created a stir, and has MDOT officials and the City Council mightily upset. 

The Clarion Ledger quotes Jackson City Councilwoman Margaret Barrett-Simon as saying “I think this is not an image we want to project (about the city),” she said. “Not to mention it was a terribly dangerous situation for him as well as motorists, dangling over traffic like that.”  I’m playing amatuer sleuth here, but how does Councilwoman Barrett-Simon know the offender is a “him” instead of a “her.”  Hmmmm . . . 

All kidding aside, Section 97-15-1 of the Mississippi Code Annotated makes such actions a misdemeanor crime in the state of Mississippi.  The statute reads:

(1) Any person who shall willfully destroy, deface, mar, damage, pull down or remove any milepost, signboard, or index board, or road number, or railroad crossing sign or flasher signal, or other traffic control device shall, on conviction thereof, be liable for the actual cost of replacing or repairing such sign and shall be fined not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00), or be imprisoned in the county jail not more than six (6) months, or be punished by both such fine and imprisonment. If the offender is a minor, the parents of such minor shall be civilly liable in accordance with Section 93-13-2 for the actual cost of replacing or repairing the sign, signal or device.

(2) The penalties prescribed in subsection (1) of this section shall also be applicable to any person, and to the parents of any minor, who willfully defaces, mars or damages any bridge, underpass or overpass.

The state estimates the cost to make the repairs on the signs in Jackson to be $9000.00.  Ouch.

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2010 Federal CJA Panel Training was a Success

December 11, 2010

Federal Courthouse - Jackson, Mississippi

Lawyers in Mississippi must attend 12 hours of Continuing Legal Education, one of which must be in the area of legal ethics.  Most lawyers attend several conferences a year, and have no problem meeting and exceeding this requirement.  I just returned from Biloxi, Mississippi, where I attended the 2010 CJA Panel Attorney Training Seminar, which was organized by the Office of the Federal Public Defender in Mississippi.  And I’m blogging to brag on the the Federal Public Defender’s office and tell you it was an excellent program.

 

What is the Federal Public Defender? 

The Federal Public Defender is a government office that provides criminal defense for indigent clients (people that can prove to the federal judge that they do not have the money for a lawyer).  This office is authorized and funded pursuant to the Criminal Justice Act, (“CJA”), 18 U.S.C. § 3006 et seq.  The caseload ranges from petty offenses to the defense of complex felony prosecutions.  Mississippi has had a Federal Public Defender office since 2002, led by the Federal Public Defender Dennis Joiner, and currently it is made up of nine excellent attorneys stationed in Jackson, Gulfport, and Oxford to provide statewide coverage.

 

What is the CJA Panel?

The CJA Panel is a group of private attorneys that accept appointments from the federal courts to defend indigent clients when the Federal Public Defender cannot do it due to a conflict or some other reason.  Not just any lawyer can be on the panel.  To be accepted, a lawyer must be a member in good standing of the district court trial bar and must have experience with, and knowledge of, the Federal Rules of Criminal Procedure, the Federal Rules of  Evidence, and the Federal Sentencing Guidelines.  And they must attend additional training specific to federal criminal defense.

 

This week’s training covered the following topics:

  • Sentencing Updates / Crack v. Powder Cocaine – George Lucas, Senior Litigator, Federal Public Defender’s Office
  • Offender Workforce Development – Doug Burris, Chief U.S. Probation Officer, Eastern Missouri
  • Obtaining Bond in Immigration Cases – Barry L. Frager, The Frager Law Firm, Memphis, TN
  • Computer Crimes – Ellen Allred, Assistant Federal Public Defender
  • Tools for Sentencing Mitigation – Kevin Payne, Assistant Federal Public Defender and Dean Applegate, Investigator
  • Affirmative Uses of the Rules of Evidence – Omodare Jupiter, Assistant Federal Public Defender
  • Professionalism:  The Road Begins Where You Are – Greg Park, Assistant Federal Public Defender

These sessions are designed to provide CJA attorneys with the up-to-date knowledge they need to effectively represent you when you are charged with a federal crime.  If you find yourself in this position, and you cannot afford a federal criminal defense attorney, you’ll be in good hands.  If you can afford a federal criminal defense attorney, I know where you can find one.  601-991-1099.

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Mississippi Crime of the Week – Removal from state of personal property subject to lien

December 6, 2010

It is against the law in Mississippi to take property out of the State’s jurisdiction that you know is encumbered, or pledged, to someone else.  This law basically prevents someone from “hiding assets” from creditors, or otherwise making it difficult for a creditor to come get the collateral if they stop making payments on it.  The law prevents the moving ”to any place beyond the jurisdiction of this state, any personal property which shall at the time of such removal be under written pledge, or mortgage, or deed of trust, or conditional sales contract, or lien by judgment, or any other lien in this state, with intent to defraud the pledgee, mortgagee, trustee, cestui que trust, conditional vendor, or creditor . . . .”

If the property is valued at less than $400.00, the offense is characterized as a misdemeanor, and the punishment is a fine of not more than $1000.00 and imprisonment in the county jail for not more than 12 months.  If the property is valued at $400.00 or more the offense is a felony, punishable by a fine of $500.00 to $5000.00, and imprisonment in the penitentiary not less than one nor more than three years, or both.

As with most theft and fraud offenses, the key is your intent.  The prosecutor must prove your intent to defraud the rightful owner beyond a reasonable doubt, and sometimes this can be difficult, in light of the many innocent reasons you may take property from the state.

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Clarence Guthrie achieves AV-Preeminent Rating from Martindale-Hubbell

November 8, 2010

Most people (that don’t know me) hire me for one of two reasons: (1) they were referred to me by one of my former clients, or by another lawyer, or (2) they see that I was a U.S. Marine, and that means something to them.  And I personally think either of those reasons is fine.  But no matter how you get to me, or how you go about selecting any lawyer, it boils down to two things: find a lawyer you can trust, and one that can competently handle your case.

Which is why I really don’t think much of these lawyer ratings services, and I usually don’t talk about them.  Awards and ratings are available for just about anyone if they hang around long enough, or if they ask for them.  But I would like to share this latest accomplishment, as it involves being rated based on reviews from judges and others in the legal profession, and I was pleasantly surprised with how it came out.

Martindale-Hubbell is a company that provides a lawyer rating system, which evaluates lawyers and law firms based on peer reviews.  Their ratings system is based on the confidential opinions of members of the Bar and the Judiciary.  Martindale-Hubbell representatives conduct personal interviews with members of the Bar to discuss those members under review. Additionally, confidential questionnaires are sent to lawyers and judges in the same geographic area and/or area of practice as the member being rated.  All Rating review materials are strictly confidential, to allow participants to provide candid assessments of their colleagues.  After these reviews are compiled, the lawyer is either given no rating at all, CV, BV, or AV.  From their website:

  • A CV Rating is an excellent first Rating and a statement of a lawyer’s above average ability and very high ethics.
  • A BV Rating is an indication of an exemplary reputation and well-established practice. A typical lawyer is in mid-career, with a significant client base and high professional standard.
  • An AV Rating shows that a lawyer has reached the height of professional excellence. He or she has usually practiced law for many years, and is recognized for the highest levels of skill and integrity.

I began the ratings process earlier this year, and I was shocked several weeks ago when the results came back and I was rated “AV-Preeminent” in the areas of criminal law, personal injury, and general practice.  The report also included several comments from those that rated me:

  • Clarence is an outstanding lawyer.  His professionalism, knowledge of the law and work ethic is admirable.  Clarence is one of the finest lawyers I have ever worked with.  He deserves the highest rating.
  • Mr.Guthrie has appeared in front of me on a few tricky criminal matters.  He is highly ethical and a “straight shooter.”  One of the cases was tried under intense media scrutiny, and I thought he did a very good job for his client.
  • Clarence is an expert in criminal defense work, including constitutional law issues, due process issues, ethics, and the multitude of other issues that are involved with representing individuals — and this includes civil lawsuits.

I don’t know who made these comments, but let me take this opportunity to thank you if it was you. 

As I related above, don’t hire me, or any lawyer, without checking up on them first, and certainly don’t hire anyone because they brag the loudest, or look the prettiest (I’d never get any business if that were the case).  If you need a criminal defense lawyer, your freedom is on the line.  Ask around, choose wisely, and then build a relationship and work with your lawyer for the best possible result.

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Federal Crime of the Week – Video Voyeurism

November 5, 2010

As technology invades our lives, so do ways to commit crimes with all this new technology.  Anyone can go online or to Best Buy and Radio Shack and purchase equipment that would only have been available to James Bond several years ago, and it is very easy to get in trouble with it, especially if you use it to spy on other people against their will.  Most states – including Mississippi – have laws making “video voyeurism” illegal.  Video voyeurism is the filming or photographing of people without their knowledge or consent.  Perhaps the most famous incident of video voyeurism lately happened to ESPN Sportscaster Erin Andrews, who was videotaped through a keyhole in her hotel room in Florida.  Incidentally, the person who made that videotape and attempted to sell it on the internet is in the middle of his 30-month federal sentence.

In 2004, the U.S. Congress made video voyeurism a federal crime, although the jurisdictional reach is almost insignificant.  In accordance with 18 U.S.C. § 1801:

Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.

As I stated, this type of activity is illegal in Mississippi, and I would advise you to assume it is illegal everywhere, but it constitutes a federal crime only if “in the special maritime and territorial jurisdiction of the United States.”  This means federal property that includes, but is not limited to, territories, military bases, federal courthouses and office buildings, federal parks (the Natchez Trace), federal prisons, etc.  It does NOT include the entire United States, but only property owned by the United States.

Along with the prison time, if convicted of this crime you almost certainly would be required to register as a sex offender in Mississippi, and most other states, and would suffer the other problems associated with conviction of a sex offense.

If you find yourself charged with this type of crime, the consequences are serious, but the crimes are defensible.  I have handled these types of cases before.  If you would like to discuss it give me a call at 601-991-1099, or send an email to clarence@guthriefirm.com.

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Mississippi’s Habitual Offender Laws

November 2, 2010

A “habitual criminal law” is a law that enhances your potential sentence and imposes greater penalties if you have a previous criminal record at the time you are sentenced.  These laws are known as “three strikes” laws, and they are the darlings of the “please re-elect me because I’m tough on crime” crowd.  When you come to discuss your case with me, one of the first things we will cover is your prior criminal record, if you have one.  In some circumstances, we will need to take your case to trial, no matter how bad your case is, due to the potential effects of Mississippi’s habitual criminal laws.

Mississippi has two main habitual offender laws, known in criminal law circles has the “little b**ch” and the “big b**ch.”  If you meet certain requirments, and the state can prove that you meet these requirements, the Mississippi legislature has removed some “leeway”  the judge might have in determining your sentence, and the results can be harsh.  In other words, we need to fight to prevent the operation of these statutes in your case as much as we can.

 

Habitual criminals: maximum term

Section 99-19-81 is the “lighter” of the two habitual statutes, and reads as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
 
 
Habitual criminals: life imprisonments

Section 99-19-83 is the “tougher” of the two habitual statutes, and reads as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. 
 
The difference in these two statutes is easy.  If you are convicted of a third felony, and your first two “count” under the first statute, then you must serve the ENTIRE maximum term prescribed under the statute for the crime you are convicted of, with no time off for “good time,” and you will not be eligible for early release or parole.  Under the second statute, if either of the two prior felonys was a “violent” felony, then you will be sentenced to LIFE, with no opportunity for early release or parole.  The operation of these two statutes is DEADLY, and your criminal defense lawyer MUST fight however they can to prevent you from being sentenced under these statutes.   
 
Several things to keep in mind: 
  • The state MUST properly indict you under these statutes for you to be convicted under them.
  • But the state might be able to amend the indictment up until your trial date, if it can prove you had the proper notice  and an opportunity to defend yourself.
  • The state must “prove” these prior convictions with competent evidence (usually testimony from custodian of records at the Mississippi Department of Corrections).
  • The prior, or “predicate,” convictions can come from Mississippi, federal court, or from any other state.
  • There is no specific definition of a “crime of violence,” but common sense has guided courts in making the determination (armed robbery, attempted rape, manslaughter, aggravated assault, etc.).

EXAMPLE:  You have two prior convictions, one for felony shoplifting, and the other for possession of marijuana with intent.  If you get caught with a firearm, and are convicted of being a “felon-in-possession,” if you are indicted under the first statute, you will automatically be sentenced to ten years “flat time,” or “day-for-day,” because 10 years is the maximum penalty prescribed for being a felon in possession.  Let’s change the facts a little:  You have two prior convictions, one for felony shoplifting, and one for aggravated assault on a law enforcement officer.  If you write a bad check for $100.00 (a bad check for $100.00 or more is a felony), then you face imprisonment for LIFE, with no opportunity to get out, because the agg. assault charge would be considered a violent felony.

These laws have overwhelming public support, because of their “tough on crime” appeal.  If you are on the receiving end, and have been indicted under one of these statutes, you absolutely need a good criminal lawyer to explain how they will work, and advise you on your options.  As I stated, it may be that we have to take your case to trial.  And if that is the case, contact me as soon as you can.

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Mississippi Crime of the Week – Intimidating an Elector to Procure or Prevent their Vote

November 1, 2010

It is midterm election day tomorrow across the country, and this week’s Mississippi Crime of the Week concerns two types of crimes that can be committed during an election cycle.  In our form of government, every individual vote is both valued and valuable, and it is extremely important that the voting process not be compromised.  Like most states, Mississippi has an entire chapter of its code dedicated to election crimes.  This week we will discuss two of the more popular election crimes - intimidating an elector to procure their vote, and intimidating an elector to prevent their vote.

 

Intimidating, boycotting, etc., elector to procure vote.

Section 97-13-37 of the Mississippi Code Annotated makes it a crime to get someone’s vote, or attempt to get someone’s vote, by means of violence, threats, refusing to do business with a voter, enforcing the payment of a debt, bringing a suit or criminal prosecution, or by any other activity that would be considered intimidation.  Any person convicted of this crime faces imprisonment in the county jail for not more than one year, or a fine not exceeding $1000.00, or both.

 

Intimidating elector to prevent voting.

Along the same lines, section 97-13-39 of the Mississippi Code Annotated makes it a crime to use the same means (intimidation, etc.) to prevent a person from voting.  The punishment for this crime, however, is more stiff.  A conviction of this crime carries a penalty of up to two years in the penitentiary, or by a fine not exceeding $500.00, or both.

As you might expect, these crimes are political by their nature.  They are rarely pursued by prosecutors across the state.  But if you find yourself caught up in an election controversy, do not hesitate to contact me to discuss.  601-991-1099.

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