If you are looking for information about Mississippi criminal issues, take a look at the posts below – and the categories to the right.  You can also visit my Jackson, Mississippi Criminal and DUI Defense website for more information.

If you need a lawyer right now, send an email to clarence@guthriefirm.com, or call me at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.  If I am not in court or with another client you will talk to me personally, and we will talk through your issues.  Your initial consultation won’t cost anything.

Philip Thomas over at his Mississippi Litigation Review and Commentary has this post on what your lawyer should wear to court.    I’ve been contemplating writing a post on what YOU should wear to court, because I go over it with every client, and so here it is:

“Don’t come to court looking like you just climbed down from the tree stand, or just rolled in from the rap concert.”  That used to be all I had to say on the matter, and it hasn’t failed me yet.  But I must say that I have actually seen someone – NOT MY CLIENT – show up and plead “not guilty” to a possession of marijuana charge with a T-shirt that had a big marijuana leaf emblazoned on it.  And so my advice on grooming and appearance has somewhat evolved through the years.

If you hire me to represent you, shortly before we get to court we will have a brief, but necessary talk about your appearance.  Anything can happen during a trial, and so it is important to control as much as we possibly can before we get in there.  One of those things is the way you look.  In addition, don’t think that the jury is not watching everything you do, and what you have on, and so a little effort in this area is important.  You only get a few seconds to make an impression on someone, so choose what you wear wisely. 

• Dress respectfully – This shows the judge, the jury, and everyone at the courthouse that you have respect for the court, respect for the process, and that you are taking it seriously.
• Dress to disappear – No, don’t wear camoflage.  What I mean by this is that your clothes shouldn’t distract anyone.  Chose dull colors over bright, and clothes that fit, rather than are too tight or loose.  Let me wear the colorful tie.  You just wear something nice.  For ladies – and I do not mean any disrespect by this – if you ever dressed to attract someone’s attention, now is not the time.  Please don’t make me have to elaborate on that any further.
• Do not stink – Tone down the aftershave, perfume, etc.  Brush your teeth, have a mint, and I’m counting on you to tell me if my breath stinks as well.
• Some rules – Most bailiffs in Mississippi will make you tuck your shirttail in, and remove your hat.  Leave your cell phone in the car, as most courts will only allow lawyers in with their phones, and some don’t even allow that.  If you do make it in with your phone, CUT IT OFF.  I have witnessed more than one judge instruct the bailiff to take up a phone and give it back only after a $200.00 fine is paid.

As most of my clients can attest, when you come to see me in my office I will probably be in blue jeans, if I don’t have court that day.  I would practice law in shorts and a sweatshirt if I could get away with it.  But it is game time when we get to court, and like Philip’s post recommends you will see me dressed up when we get to the courthouse.  You don’t necessarily have to wear your Sunday best, but I highly recommend that you pay attention to your appearance when we get to court.  Respect the process, and the process will respect you.

Technically, there is no such thing as a “hate crime,” by definition, in Mississippi.  Instead, Mississippi treats all crimes, felonies or misdemeanors, as ”hate crimes,” if the prosecution can prove that the crime was committed “because of the actual or perceived race, color, ancestry, ethnicity, religion, national origin or gender of the victim.”  Miss. Code. Ann § 99-19-301.  In other words, the “hate crime” label is applied during the sentencing phase of the criminal process.  In fact, the portion of the Mississippi Code that covers Mississippi’s Hate Crimes laws is entitled “Enhanced Penalties for Offenses Committed for Discriminatory Reasons.”

Notice Requirements

In order to inflict this enhanced penalty on you, the prosecutor must provide you with written notice that he or she intends to seek the penalty, by actually including this notice of intent as a separate part of your Indictment paperwork.  Because this is a sentencing enhancement, the fact that these additional penalties are being sought cannot even be mentioned in the guilt or innocence phase of the trial in front of the jury, to prevent the “hate crime” issue from influencing the jury’s consideration of the facts of whether you did it or not.

The Required Proceedings

If you are found guilty of the underlying offense, and the state has provided the proper notice of its intent to enhance (increase) your sentence under the hate crimes laws, the court must have a separate hearing to determine your sentence.  Unless you have pleaded guilty and waived your right to a jury, a jury (either the same one from your trial or a new one) must hear evidence from the state and be convinced beyond a reasonable doubt that:

1. the defendant perceived, knew, or reasonably should have known that the victim was within the class delineated; (race, color, ancestry, ethnicity, religion, national origin or gender)
2. the defendant maliciously and with specific intent committed the offense because the victim was within the class.

By statute, both you (your lawyer) and the state are allowed to present arguments for or against the enhancement.

Hate Crimes Penalties

If the state proves the above elements beyond a reasonable doubt, then the penalty for any given offense may be doubled.  Double jail.  Double fine.  Double stinks.

As a practical matter, the hate crime enhancement is used very rarely.  Obviously, even the connotation of a “hate crime” evokes emotion, passion, and politics, and usually both sides of a criminal matter want to avoid these factors if possible.  If you get caught up in a prosecution and receive notice of a sentencing enhancement under these laws, make sure your lawyer knows what to do.

The Clarion Ledger is reporting that a former Jackson Police Department burglary detective, who was out on bail for bank robbery, was arrested today for robbing five local Jackson businesses in the past 24 hours.  The detective was ten years removed from the department, as he was fired in 1999 for testing positive for cocaine use.  And he has been very busy since then.

Last year, when this person was arrested for robbing a local credit union, Assistant Police Chief Lee Vance attributed the problems to drug use and abuse.  “It’s actually a testament to the scourge of of crack cocaine in our society, and it is very sad,” said Jackson police spokesman Lee Vance. “Police officers are held to a higher standard with higher expectations, and he betrayed that. But even more than that he betrayed himself, and he betrayed his family.”

All good police officers, like Marines, hold themselves to higher standards than the general public.  They are aware that their special role in society puts higher expectations on them for honesty, ethics, morals, competency in their profession, and even courtesy.  In order to enforce the law, police officers must necessarily be more conversant and observant of it than average citizens.  This is a source of pride to all good police officers, and it is difficult to witness this source of pride break down.  It reminds me of an argument I used to make all the time when I defended Marines at courts-martial: “Marines have very high standards.  Lance Corporal [insert name of accused here] simply can’t live up to these high standards.  But that doesn’t necessarily make him a bad person.”  Sometimes that argument worked, sometimes it didn’t.    

Finally, another sad thing about this story, other than the fact that this person appears to be rapidly ruining his life, is that every time he gets into trouble the headlines read “Former Police Officer . . . ,” “Ex-officer arrested . . . .”  The police are saddled with this man’s sinking reputation, and are forced with having to accept it as their own.  I work with law enforcement officers virtually every day, mostly going head-to-head with them, but they deserve respect for the very difficult job they have to do.  This “former detective,” just like anyone else, is presumed innocent until proven guilty beyond a reasonable doubt, so all we can do is hope that justice will be served.

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.

Post Traumatic Stress Disorder is a viable legal defense that should be examined in the case of any military active duty servicemember or veteran who has returned home and committed a crime.  “PTSD” is the given name for a variety of symptoms that follow combat veterans long after the event that triggered them.  Some of these symptoms include:

• trouble concentrating
• paranoia or “super-alertness” and hyper-vigilance
• flashbacks
• nightmares
• blackouts and memory loss
• issues with temper
• insomnia
• unusual aloofness

Many states – although not Mississippi as of yet – have enacted laws establishing special veteran’s courts, and recognizing the special treatment needs of our nation’s combat veterans.  Until Mississippi recognizes this problem formally, the need for an advocate that understands the plight of servicemembers and veterans is paramount.  I served 22 years in the Marine Corps, and I will make it my mission to represent you in any PTSD-related problem, including:

• Helping establish proof of PTSD
• Getting you the medical attention you need
• Defending you against criminal charges resulting from symptoms or onset of PTSD

If you or a family member have been diagnosed with post traumatic stress disorder and have been charged with a crime, 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.

Law professor Alexandra Natapoff is perhaps the nation’s number one authority on the law of “snitching,” which she defines as “when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation.”  Now she has turned this expertise into a blog that I plan on following with interest - the “Snitching Blog.”   According to the welcome page:

Snitching Blog is about a part of our criminal system that most people know little or nothing about: criminal informants, or snitches.  At any given moment, thousands of informants are trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace.  Police and prosecutors often rely heavily on information obtained from snitches — especially in drug enforcement but also in white collar crime, organized crime, and terrorism investigations.  In fact, it is impossible to fully understand the U.S. legal system without understanding snitching.  Nevertheless, there is very little public information available about this important public policy.  That’s where Snitching Blog comes in.

Snitching is an inevitable, if not sometimes distasteful, part of the practice of criminal law.  If you practice criminal law long enough, either as a prosecutor or defense lawyer, you will have a case involving an informant.  As I have previously said on this blog, there are dozens of ways to work out a criminal case, and helping yourself by helping the government is but one of them.  It may be that becoming an informant may be the best route for you, or you may be the type of person that would rather die than to inform on someone else.  Or you may be the target of a government informant, and you need a lawyer to expose them and minimize the effect on your case. 

The tone of this new blog is geared towards the legal community, but if you are involved in a case that involves informants it should be required reading.

No.

A ”plea bargain” is an agreement between you and the government where you agree to plead guilty to all or some of the charges against you, and the government agrees to drop some charges, reduce some charges, or recommend a reduced sentence to the judge.  There are dozens of different ways to work out a criminal case, all the way from your lawyer talking the prosecutor into dropping your case, to your case going to trial in front of a jury to be decided.  Statistics show that over 90% of criminal convictions come from negotiated pleas, so less than 10% result in trials.  Your lawyer is under an obligation to explain all of your options to you so you can understand them, and to advise you as to the best course of action.

In Mississippi specifically, plea bargaining is government by Rule 8.04(B) of the Uniform Circuit and County Court Rules.  This rule encourages plea bargaining, stating:

“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.”

But understand this:  No one can force you to accept a plea bargain.  Not the judge, not the prosecutor, not your lawyer, and certainly not Clarence Guthrie.  Rule 8.04 goes on to state:

“Defense attorneys shall not conclude any plea bargaining on behalf of the defendant without the defendant’s full and complete consent, being certain that the decision to plead is made by defendant. Defense attorneys must advise defendant of all pertinent matters bearing on the choice of plea, including likely results or alternatives.”

Your lawyer is also under an ethical obligation to let you make the decision on the most important aspects of your case, including the decision on whether to accept a plea bargain.  Mississippi Rule of Professional Conduct 1.4 states “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

So the ultimate decision on whether to accept a plea bargain, pleading guilty in exchange for reduced charges or a reduced sentence, is yours and yours alone.  A good lawyer is going to size up the evidence in the case, advise you to as to any defenses you may have, make a recommendation, answer any questions you have, and then let you make the call.  Once you have made the call, the lawyer has their marching orders.  

Here is my take on it:  In my opinion the worst reputation that a criminal defense lawyer can have is to be known as a “plea machine” – a lawyer who takes money from his clients and then encourages them to accept a plea at the earliest opportunity.  This type of lawyer will breeze over the evidence, and will not try your case if it needs to be tried. 

When analyzing a case with a client, I can’t help but fall back on the things I learned in the Marine Corps, and I wind up referencing the teachings of Sun Tzu:

• He will win who knows when to fight and when not to fight.
• If equally matched, we can offer battle; if slightly inferior in numbers, we can avoid the enemy; if quite unequal in every way, we can flee from him.
• If you know the enemy and know yourself, you need not fear the result of a hundred battles.  If you know yourself but not the enemy, for every victory gained you will also suffer a defeat.  If you know neither the enemy nor yourself, you will succumb in every battle.

If you come to me with your criminal issue, after we investigate the case, analyze the evidence until you understand it, and I make a recommendation, then if you ultimately want the case to be tried, it will be tried.  It is a fact that most cases, civil and criminal, settle short of trial.  But I have found myself in court a pretty good bit lately, and that is fine with me.

I received a very interesting call about a month ago.  It seems that the National Rifle Association needed a lawyer in Mississippi experienced with firearms and familiar with gun laws to refer litigation to on an “as needed” basis.  The NRA’s Office of Legislative Counsel ran across my website, and we quickly formed a great relationship.

The NRA has since named me its “referral counsel” in Mississippi for NRA members that need help with gun issues, etc.  I’m not a “gun nut,” but I’ve been around firearms my entire life.  I can still field strip an M16A2 service rifle with the best of them, and so I gladly accepted the honor and responsibility of helping people with legal issues regarding firearms in the state of Mississippi.

Firearms are a part of our culture in this state.  You don’t have to be in Mississippi long to know that it embraces the hunting/sporting ethos with great enthusiasm.    And so the U.S. Supreme Court’s decision last year in District of Columbia et al. v. Heller met with little dissent in these parts.

After decades of speculation by analysts and court-watchers, the U.S. Supreme Court finally held that the Second Amendment to the Constitution protects an individual’s right to possess a firearm that is unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

The Second Amendment reads “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”  Gun control advocates have maintained forever that the second clause of the sentence is dependent on the first, so that the individual right to possess firearms is dependent on the existence of, or participation in, a militia.

The Court finally put an end to this long debate, holding that the Amendment’s first clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.  See District of Columbia et al. v. Heller, 128 S.Ct 2783 (2008).

So, for now, it looks as if it will quite literally take an amendment to the Constitution in order to “pry [a Mississippian’s] cold dead fingers” from their favorite beloved firearm.  Praise the lord and pass the ammunition.  With that issue somewhat resolved, what kinds of trouble can you still get into with a firearm?

This is a partial list of crimes that have to do with possessing a firearm or explosive device:

• Carrying a concealed weapon
• Assault with a deadly weapon
• Possession of an unregistered gun
• Brandishing a firearm
• Unlicensed firearms
• Felon in possession
• Possession by a minor
• Unlawful discharge of a weapon
• Unlawful sale of firearms
• Carrying a concealed and loaded firearm in a vehicle
• Federal firearms violations, including possession of a machine gun or silencer
• Possession of assault weapons

These crimes can generally be pursued in both federal and state court.  Some of these crimes are stand-alone offenses, and some are “enhancements” to other offenses.  The penalties tacked on in the federal system for using a firearm in the commission of certain crimes are especially brutal.

A lawyer that knows about firearms can also help you with the loss and restoration of firearms possession rights, which can be forfeited as the result of a felony conviction, a domestic violence conviction, or other crimes.  Your firearm itself may also be forfeited as the result of criminal charges, and a knowledgable firearms lawyer can help you with forfeiture issues as well.

So in summary I am proud that the NRA found me and has expressed their confidence in me to litigate firearms issues in this state.   This will certainly irritate some of my more liberal friends, but I know they can get past it.  If you find yourself in trouble, and there is a firearms issue with your case, call me and we’ll work the problem together.

If you or a family member have been arrested, or are under investigation  in the state of Mississippi and you need help,  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.

I am in the middle of a jury trial in federal court this week, and I obviously can’t say anything about it, other than to say it is one of the biggest I’ve ever tried.

I am writing this post as a “note to self” more than anything else, because every time I get to trial I realize how important the competing motivations of the prosecution, the court (i.e., the judge), and the defense are to the eventual outcome of the case.  In summary, the prosecution wants to present the evidence flawlessly, the defense wants to defend the client’s interests, and the court wants to protect the record.

A successful prosecution involves marshalling all of the available evidence together, and coordinating with law enforcement, victims, and (unfortunately) political influences to present the evidence in a manner that will be coherent and believable to the jury.  This can be a large and expensive logistical burden, and the nitnoid details of putting the case together can sometimes interfere with a prosecutor’s strategic legal thinking.

Because the burden of proof is always on the prosecution to prove the case beyond a reasonable doubt, the defense is oftentimes afforded the opportunity for more strategy.  One strategy may be to scatter the seeds of doubt throughout the prosecution’s case by going after every witness, attacking all of the forensics, and generally wreaking havoc.  Another strategy may be to pinpoint one weak area and concentrate defense efforts to ensure one element can’t be shown (the stop was without probable cause, they had sex, but it was consentual, etc.). 

Finally, in trial one of the judge’s main concerns is to ensure that an adequate “record” of the proceedings is produced.  After the trial, physically the record is a big stack of paper consisting of the pleadings, the exhibits, and the trial transcript.  This record is all that history will have to reconstruct the trial, but more importantly the record is all the appellate court will have if any issues are taken up on appeal.  Judges do not like to be overturned for making incorrect legal decisions.  This is not necessarily because of their ego, but because when a case is returned from the appellate court it must be retried or reconsidered, and therefore for the reasons of judicial economy it is much better to do it right the first time.  This is why most good judges move at a deliberate pace once a trial is finally underway, slowly making sure that counsel have an opportunity to raise any legitimate issues, and stopping the trial if necessary to explore the latest law on said issues.

These three goals, although different, do not necessarily “compete,” as the title of this post suggests.  But understanding these goals helps to define the “box” that a defense counsel is working in, so that it may be easier to think outside of it to zealously represent the client.