Jackson Free Press

See Irby Re-indictment (PDF 130K)

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..

Previous Comments

ID

157122

Comment

The way that this article was written suggests that McMillan's rebuttal of the WLBT report was spot on and correct, and that WLBT's report was, in fact, wrong. For example: "But information provided by McMillin shows Huff was not on the scene that night" Was that the intention: to suggest that WLBT's report was erroneous? Or was it merely intended to be a reporting of McMillan's side of the story? I suspect the latter but it sounds like the former.

Author

Scott Albert Johnson

Date

2010-04-07T13:12:16-06:00

ID

157124

Comment

Scott, if you read the story closely, you should see that it is McMillin's side of the story and is not presented as anything else; I simply cannot know at this point everything that is "spot-on" correct; I can report what I'm told and see. I am reporting what McMillin and others say is true, as well as documents I saw. I will report other information as it becomes available, or as other players are willing to talk. The part about Huff not being on the scene, even though WLBT reported that he was, seems pretty solid from what I saw/heard. I'm curious what the source was that says he was on the scene. I'm assuming that might have come from the D.A.'s office, and will ask him if/when he calls us back. I'm happy to report anything he has to say or any rebuttals to the sheriff and others.

Author

DonnaLadd

Date

2010-04-07T13:18:07-06:00

ID

157125

Comment

Also, I know that some parts of the above story are confusing (the interview was Monday, and I had to turn it around quickly), and I'm working on some summary bullet points to add to this later after I get out of some meetings. And we will add additional information (although no unsubstantiated conspiracy theories!) to this story as it becomes available. Stay tuned.

Author

DonnaLadd

Date

2010-04-07T13:20:11-06:00

ID

157127

Comment

BTW, new information coming in: DA Smith did re-indict Karen Irby on three counts of aggravated DUI after original charge was dropped, and it was dismissed as part of the plea bargain. If it is not clear above, each of those counts could bring up to 25 years since the law was changed (it used to be that you could get drunk and kill a carload of kids and only get charged with one count; remember?).

Author

DonnaLadd

Date

2010-04-07T13:24:45-06:00

ID

157128

Comment

That's what I thought, Donna, but that one sentence, as well as this one: "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." ... made we wonder for a moment if you were accepting his version or just reporting it. I agree that the thrust of the story comes across as reporting and not agreeing. I'm looking forward to following your coverage of this. It's a VERY interesting story, regardless of how it turns out.

Author

Scott Albert Johnson

Date

2010-04-07T13:26:23-06:00

ID

157130

Comment

I didn't have much time, but I tried to be careful to put enough "according to McMillin" and the like in there. This is his story, as well as other sources, which I say. I hadn't plan to cover the story myself, but McMillin called and offered me the exclusive interview, saying all he wanted was a media outlet that would be "fair" to him. It is simply remarkable what has been said about him by people who haven't called him to talk to him about it. That makes this a story about the dark side of blogging as much as anything else.

Author

DonnaLadd

Date

2010-04-07T13:29:18-06:00

ID

157131

Comment

It wouldn't surprise me at all to find out later on that DA Smith is somehow in cahoots with the Irbys and that's why he went for an even lesser charge of gross negligence manslaughter instead of aggravated DUI or depraved heart. Something doesn't smell right in the DA's office.

Author

LambdaRisen

Date

2010-04-07T13:30:53-06:00

ID

157132

Comment

The whole thing is, to me, an example of the gradual and inexorable dissolution of trust in the media, and how that is not always the fault of the actual media themselves. The lines between the blogosphere and conventional media keep getting blurred in the eyes of the average web surfer, even if the lines still exist once you peel behind the curtain... in other words, the JFP still conducts interviews, checks sources etc., as do most "old media" outlets, while bloggers generally do none of this. Yet they are all lumped together into one media globbygook, in the minds of the average Joe or Jane.

Author

Scott Albert Johnson

Date

2010-04-07T13:33:58-06:00

ID

157140

Comment

OK, I'm working on my bullet-point summary. First, though, I wanted to add some links to WLBT stories that McMillin mentioned. This story reports that the police found in the second report that "Irby was actually going 70 miles per hour." According to officers who do reconstructions, this means she was going a *minimum* of 70 mph, which is what those numbers indicate. If the reporter only used Huff's report without interviewing experts on it, she couldn't have know this, so I don't blame her. But it is an important point if these reconstruction reports document *minimum* speeds. Apparently, Huff could not determine that Irby was going over 100 mph based on what was available -- remember, he was *not* on the scene the night of the accident and the police photographer didn't take pics of the tire tracks -- he could only say that she was going a *minimum* of 70 mph. Oddly, on this point, the conspiracy theorists seem to suggest that the bad investigator they say that McMillin rushed there to cover for Irby reported that she was going over 100 mph to *help* her. My sources indicate McMillin sent Huff to the scene, as I say in the story, several days later to help with the computerization because JPD didn't have anyone then to do that. Apparently there were lines painted on the street then helped with that later reconstruction. However, no one asked him to re-do or factcheck the analysis then -- that didn't happen until days before trial this year and after Barnhardt got in trouble in the first-lady flap. More to come. I've also added the other WLBT link to the story above as well. This is the story that reports that Huff was on the scene the night of the accident, and that seems to follow a narrative that the investigation was intentionally mucked up.

Author

DonnaLadd

Date

2010-04-07T15:16:37-06:00

ID

157143

Comment

I'm reading back through my file now and Huff's second report says that the blood-alcohol level was .8%, not .9% as I report above. Would have to check the tape to make sure of which I was told, but there are both the numbers. One thing that is interesting about looking back on this case is talking to legal types who say that the problem seems to be the initial charge was too ambitious based on the actual evidence and state law; I'm hearing that repeatedly, especially since this story came out today. And thanks to everyone getting in touch on this one.

Author

DonnaLadd

Date

2010-04-07T15:31:34-06:00

ID

157144

Comment

Someone asked if Stuart Irby gave money to Robert Smith's campaign: It looks like he only gave $500 to his campaign (although Ed Peters gave $2,500, but we've been down that road here.). Irby gave to a lot of campaigns; was a big contributor to Melton, for instance. The fact that someone donates to campaigns is always of journalistic interest and can say a lot, especially about the donors' interests. But you have to be very careful about reading in something that isn't there. You use it as a red flag, but you can't then follow a logical fallacy to say it must mean that the elected official then did something to help the donor just because of the money connection. That's poor reasoning and bad journalism. However, if evidence is there of a connection, then report the actual evidence. But we have seen no evidence that McMillin tried to steer this investigation in any particular direction. If anyone has anything beyond conjecture by people scared to use their real names or call the sheriff to talk about it, please be in touch. As I told McMIllin Monday in his office, if I have evidence of a conspiracy, I will print it. But I will allow him a chance to respond first. I hate corruption, but I also hate smear campaigns. And it is a sport in our city.

Author

DonnaLadd

Date

2010-04-07T16:15:27-06:00

ID

157146

Comment

Lambda, I have seen no evidence that Robert Smith is "in cahoots" with the Irbys, either. He, after all, tried to throw the book at her -- regardless of whether it was too lofty a charge, his trying it indicates to me that he was serious about it. I don't tend to buy into convoluted conspiracy charges that would say, for instance, that he tried to bring a worse charge so it would be thrown out. The truth is that he did what prosecutors sometimes do: bring a more serious charge, so you can get a lesser plea. We've all seen Law & Order. (smile) You have to remember that this case has gotten immense media attention; I don't seem to remember the same attention going to every aspect of that drunk guy who killed the five kids at the reservoir. On the other hand, we all shouldn't stand by and let the Irbys get out of this because they have money; thus, watchdogging is a good thing. But it needs to be smart watchdogging, and not unsubstantiated conspiracy stuff. That's libel -- and even public officials can be libeled (even by bloggers with fake names), especially when malice is apparent. But if it's true, prove it, don't just infer it. I've got no dog in the McMillin hunt, or any other politician's hunt. Supposedly, we're all buddy-buddy with Hood, but we're the ones going after his Hayne comments (thanks, NMissCommenter for the post). I get along with McMillin, but I also got along with Melton and Robert Smith (spent a lot of hours with him on a story) and other people we've criticized. To this day, I think it was a huge mistake for McMillin to be both chief and sheriff. If we get evidence that he is guilty of something, we will report it. (Call me if you have it: 601.362.6121 ext. 15). But we will also give someone a fair chance to respond to a hurricane of innuendo if they ask us to, especially when others don't bother asking. It's the decent thing to do.

Author

DonnaLadd

Date

2010-04-07T16:33:09-06:00

ID

157147

Comment

Just received copy of March 25, 2010, Irby re-indictment on the three aggravated DUI counts (carried up to 25 years on each of three counts). As I understand it, the speed and BAC, even as amended, were sufficient for these charges. The plea deal for the two manslaughter counts came a week later on March 31, and can bring up to 20 years on each count. Any of you attorney types have anything to add?

Author

DonnaLadd

Date

2010-04-07T16:56:44-06:00

ID

157148

Comment

Geez, calm down ladd. I didn't say he WAS in cahoots. I said it wouldn't surprise me to find out later on down the road that he was. In other words, if 6 months from now JFP or WAPT or Clarion Ledger ran a story saying he was, I wouldn't be surprised or shocked. I did not say with any sort of factual tone that he was indeed in cahoots.

Author

LambdaRisen

Date

2010-04-07T17:07:45-06:00

ID

157151

Comment

I'm not upset, Lambda. ;-) I just want to make it clear that there is no evidence of conspiracy by Robert Smith, either. We don't want to be guilty of hawking trash as the tablogs do.

Author

DonnaLadd

Date

2010-04-07T17:20:39-06:00

ID

157156

Comment

Touching posts, RHixon and David. Thanks so much for sharing. I think praying for all the families is the best point. There has been so much posturing over this case and attempts to blame other people than Ms. Irby herself that what really matters has gotten lost. Thank you both for bringing it back to the forefront.

Author

DonnaLadd

Date

2010-04-07T22:20:29-06:00

ID

157157

Comment

I just heard from someone suggesting that right-wing bloggers are alleging a conspiracy by McMillin due to the rumor that he might run for lt. governor as a Dem, and they want to hurt his chances. Now, this may just be another conspiracy rumor, but it could be a reason that people are acting so weird, throwing out accusations without supporting evidence. I sure hope it's not true, and I'm certainly not arguing that it is. This whole thing is very strange: It's hard to follow the jump from pointing out accurately that a police officer made disturbing mistakes to alleging that McMillin sent him there to do just that. If there is evidence out there of the latter, please provide it. If it is solid, we will report it. If not, we will do as we have always done and call the smear campaigns for what they are. BTW, I have no idea whether McMillin plans to run for higher office. I'll ask him next time I talk to him.

Author

DonnaLadd

Date

2010-04-08T09:13:30-06:00

ID

157160

Comment

Thanks, Rebekah. And cheers to all of you who use your real names on your posts. It's the wave of the future. All the anonymous posting and fake names are how we get into these messes in the first place.

Author

DonnaLadd

Date

2010-04-08T10:31:57-06:00

ID

157161

Comment

I guess a good title for this article would be: WHEN GOOD PEOPLE DO BAD THINGS. This title would allow the friends, family and persons/organizations, who have benefited from this family's philanthropy, a chance to acknowledge without feelings of guilt, what what has actually happened. This is not the first case that our law enforcers have investigated; however, it is a case that does not follow usual and customary procedures. As a matter of fact, there was a young African American male who was struck and killed on his bike by a drunk driver who also left the scene of the accident. All test were done with up-to-date testing tools; the driver was arrested, properly charged and his case has already gone to court. This event happened less than two months ago. To have or not to have seems to be both the question and the answer. Just saying.

Author

justjess

Date

2010-04-08T10:46:31-06:00

ID

157164

Comment

What looks fishy is the fact that no one has asked the proper question? Why did the reconstruction officer NOT take pics of the accused tire marks? He had enough training to know that pics of braking marks is essential. I'm not an investigator and I have no police training but it would occur to me that it might be useful to do so just from the common sense angle. Another question: If Huff knew pics of the brake or tire marks were NOT in the file(he apparently did some computer work on the case so its reasonable to think that he examined the case file)...why didn't he ask the original investigator about the absence of brake mark photos or bring it to the attention of JPD superiors? Looks to be a JPD problem of proper police work not being done in a timely and methodical fashion.

Author

Aeroscout

Date

2010-04-08T13:31:56-06:00

ID

157165

Comment

Looks to be a JPD problem of proper police work not being done in a timely and methodical fashion No doubt, Aeroscout. I don't think anyone is contesting that.

Author

DonnaLadd

Date

2010-04-08T14:23:21-06:00

ID

157169

Comment

@Justjess: Did the accident you are alluding to happen in Jackson or one of its suburbs? Not disagreeing with your overall point; I think I know the case you are talking about but I want to be sure.

Author

Jeff Lucas

Date

2010-04-09T07:50:02-06:00

ID

157171

Comment

the media should not tar an entire department for errors that night. "That's one person, not a whole department," Barnhardt had a supervisor. She/he might be a good person to pose the question "Why did Barnhardt not take the pictures of the tire marks?" Also "Why did you as supervisor not see to it that your officers performed properly on such an important public interest case?" If Barnhardt's supervisor was made available for the exclusive interview the important question could have been posed then or perhaps the Sheriff could explain it. The other important question revolves around the use of the expired blood test by the principal when again he should have known it would be tainted evidence. Why did he make a second mistake? Sounds like on purpose policing and depriving the people of 'honest services'.

Author

Aeroscout

Date

2010-04-09T10:45:02-06:00

ID

157175

Comment

The 'serious error' appears to have been intentional to me. My name is Charlie Brenner and I was a civil servant for 24 years. I expect better of police officers especially those gathering evidence and with special investigatory responsibilities. Almost half of all traffic fatalities are associated with drinking and that represents a very real public hazard for which all sworn officers are our first line of protection.

Author

Aeroscout

Date

2010-04-09T12:47:59-06:00

ID

157176

Comment

I did not talk to Barnhardt's immediate supervisor, Aeroscout (Charlie? If so, thx for having the class to use your real name). This case is still technically ongoing; thus, the reason that some folks cannot identify themselves, yet. The sentencing hasn't happened, yet. And totally agree that this is a very serious error. If the allegations against him are true, Mr. Barnhardt certainly seems unfit for his job.

Author

DonnaLadd

Date

2010-04-09T13:44:46-06:00

ID

157192

Comment

Yes, Jeff Lucas. The case I referenced did happen in the 'burbs. My intention was to show the correlation, in my opinion, of the outcomes of these cases depending on who and where you are.

Author

justjess

Date

2010-04-12T09:23:56-06:00

ID

157236

Comment

I am not one who thinks in terms of conspiracy, I am not one who makes a judgment about the Irbys, I am one who questions Sheriff McMillin's defense. He is someone who holds two positions in law enforcement, one elected, one appointed, both to represent all citizens. Hopefully, he is not saying that because of friendship or a campaign contribution he picks and chooses who he does his job for. Although, that is his defense. This was a terrible accident involving prominent members of the community, I believe in equality under the law. At best, Sheriff McMillan should have being doing everything possible to have a fair, accurate, intense investigation to protect and defend all four people involved in this tragedy. That is his job! To not want to be involved or briefed to protect himself from implications is unbelievable, not only because I imagine he was briefed but also because it is insulting as a citizen that this is acceptable behavior for such an important law enforcement official.

Author

cbdeleo

Date

2010-04-14T10:47:44-06:00

ID

157248

Comment

I see your point, cbdeleo. We're on record that McMillin should not have taken the chief's job in the first place. We maintain that both jobs were too much for one person, as much as we get that people wanted to get Melton's choice out of the office. And I'm not sure I agree with his tactics in this case. However, none of that indicates evidence of conspiracy, which is a very serious charge without evidence.

Author

DonnaLadd

Date

2010-04-14T17:04:13-06:00