McMillin Talks on Irby ‘Conspiracy'

By Donna Ladd Wednesday, April 7, 2010 1:05 p.m. CDT

File Photo

Hinds County Sheriff Malcolm McMillin this week fired back at accusers who say he led a conspiracy to go easy on Karen Irby, whose intoxication and high-speed driving killed two doctors and seriously injured her husband, Stuart, and herself after leaving the Jackson Country Club the evening of Feb. 11, 2009. Police reports show that she crossed five lanes of traffic in her black 2006 Mercedes-Benz CLS 500 and hit a Chevrolet Silverado C1500 pick-up truck head-on; it burst into flames, killing Drs. Mark Pogue and Lisa Dedousis.

McMillin, who was serving both as Jackson police chief and Hinds sheriff at the time, said he knew immediately upon hearing about the tragedy that he had to stay far away to avoid the appearance of impropriety, since Stuart Irby and his brother had contributed nearly $10,000 to his last sheriff's campaign.

"I made it a point not to be involved, not to be briefed," he said in an interview in his downtown office Monday. He does not deny having a "close personal relationship" with Stuart Irby whom he calls "a friend," but emphasizes that he had held elected office long enough to know that he should not go near the investigation. "I wanted to make sure there was not any implication of impropriety on my part in the handling of this case."

However, McMillin did not deny that police officers, or at least one, made serious mistakes during the crime-scene investigation that evening, but blasted claims of local anonymous bloggers that he intentionally sent an unqualified investigator to the scene after hearing that the Irby family, friends and campaign contributors, were involved.

"With all probability, I was home in bed," McMillin said.

The sheriff contacted the Jackson Free Press last week to offer an exclusive interview about his side of the story after Hinds County District Attorney Robert S. Smith told WLBT that he was calling for an investigation of the handling of the case, which he said was the reason he had to plead Karen Irby to a lesser charge of two counts of manslaughter, rather than the "depraved heart" murder charge he had brought against her. That charge required that prosecutors prove her crime was "done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life." Smith had the burden of proving that Irby acted recklessly, a tougher standard to prove than negligence.

McMillin seemed intent on correcting unsubstantiated rumors that he had intentionally set up a bad investigation to help a campaign contributor--which he characterized as a smear campaign by someone "who sees black helicopters, conspiracy theories or is just ignorant." No one who has anonymously accused him of being in cahoots with the Irbys has contacted him for an interview or comment, he added.

McMillin seemed particularly concerned because, as he pointed out, some local media outlets seemed to be following irresponsible bloggers down a conjecture-filled rabbit hole--stomping his good name in the process. "I don't intend to get into a war of words with a fool who has a computer and a blog," he said, "but these are the facts."

The sheriff offered more than an indictment of the smears against him, however. The interview, which included access to personnel with knowledge of the case and supporting data compiled by investigators, indicated that there was more to the story than has been revealed by bloggers, the DA or other media.

WLBT reported last week that the district attorney had pled Irby to two counts of manslaughter due to mistakes by a Jackson police officer on the night of the crime, including waiting too long to reconstruct the accident and miscalculating Irby's speed, showing that it was 114 miles per hour.

Smith had asked a second investigator, who WLBT identified as Mike Huff and said had been present the night of the accident, to do another reconstruction of the accident two weeks before Irby was set for trial last month. That investigator found that Irby might only have been driving about 70 miles per hour, and he could not verify that the doctors were not wearing seatbelts, as original investigator Christopher Barnhardt had indicated.

"This was the most I've ever seen in terms of mistakes," Smith told WLBT on March 29. "We've never seen mistakes to this degree." Smith has not returned numerous calls from the Jackson Free Press.

The media reports got several facts wrong and did not include others, according to McMillin and other personnel that he asked not be named at this point. For one, McMillin said that Smith asked Huff, who works for the sheriff's department, to look at the reconstruction again because original investigator Christopher Barnhardt became mired in controversy this spring after getting in trouble for Facebooking negative comments about first lady Michelle Obama during her visit to Jackson and while he was part of the security detail. The sheriff indicated that Huff had only days, not two weeks, to prepare a follow-up report.

WLBT reported that Huff was "an experienced investigator who was on the scene the night of the crash, but can't explain why he wasn't asked to conduct the investigation." But information provided by McMillin shows Huff was not on the scene that night, but first saw the evidence nearly a week later. McMillin also indicated that Barnhardt was on the schedule for reconstruction duties that night, contrary to the WLBT report. It is correct that Barnhardt had not passed the test to qualify him to testify as an expert witness, but that does not mean that he was not qualified to do reconstruction, McMillin said.

Regardless of Barnhardt's "certified" status that night, though, McMillin emphasized that no one has provided evidence that he had anything to do with which investigator was called to the scene. "I had no idea who was on duty," he said.

The TV station also quoted Smith saying that Barnhardt was "not certified" to do accident reconstructions. McMillin's data, however, indicated that he was certified on three different levels to do accident reconstructions; thus, his presence that night was not unusual.

Smith also told WLBT that Barnhardt "waited three hours to give Irby a blood-alcohol kit and used an expired kit to do so." The tube in the kit, Smith said, was expired.

McMillin's explanation showed truth to this assertion, but not the whole story. Irby underwent two blood tests that night: the first by University of Mississippi Medical Center when she arrived there shortly after the accident. That test showed a blood alcohol count of 1.3%. Then, three hours later after the reconstruction was complete, Barnhardt requested another blood sample. He provided a blood-sample kit that had an expired tube for the blood, which officers say means that the preservative inside the tube may no longer be good. That test found Irby's BAC to be .9%--meaning that it had fallen in the three hours since the earlier test, which McMillin said is not unusual.

In his follow-up report, Huff also found that the original investigators had photographed the scene, but had not taken photos of the tire marks left by the Mercedes--a serious error. McMillin said this meant that Huff was limited in what he could ascertain about the minimum speed Irby was traveling more than a year after the accident when investigators had used the actual tire marks to claim she was driving a minimum of 114 mph. Thus, Huff's second report said he could only say she was driving at least 70 mph, well over the speed limit on Old Canton Road, but that she might have been driving faster.

McMillin said he had sent Huff back to the scene six days after the crash, on Feb. 16, to help collect road data to computerize for future use, because JPD then had no one who could operate the equipment.

In the WLBT interview, DA Smith blamed the assignment of Barnhardt for his decision to allow Irby to plead. "[Barnhardt] should never have been called out to conduct the reconstruction," he said.

Data gathered by McMillin indicated, though, that the plea could have resulted from an overly ambitious charge of depraved heart murder. He said JPD showed that JPD had presented a strong case for indicting Irby on three counts of aggravated DUI--which can bring up to 25 years for each murder or maiming (as in her husband's injuries).

Instead, Smith re-indicted Irby for gross negligence manslaughter, which officers claim is more difficult to prove and will likely bring a lighter sentence than aggravated DUI.

Officers who spoke to the JFP about this case believe that despite mistakes the night of the investigation, the DA could have taken Irby to trial on aggravated DUI. Regardless, they say, the media should not tar an entire department for errors that night. "That's one person, not a whole department," one said.

After sharing what he calls missing details that he learned about the investigation, McMillin returned to the conspiracy allegations against him, emphasizing that the public should weigh his credibility against that of people who spread rumors without using their names. He said that since the accident, he has seen Stuart Irby twice at local restaurants and exchanged pleasantries, and that no one associated with the Irbys have attempted to contact him about the case, and that no one has presented evidence to the contrary.

"After 30-something years in public service and 20-something years holding public office, I've never had my honesty and integrity challenged," he said.

If you have information on this case, write [e-mail missing] or call 362.6121 ext. 15..

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