Attorneys for Mayor Frank Melton filed motions this morning calling for Melton's arrest warrant to be vacated or stayed.
In a motion dated March 5 (PDF, 3.56 MB), Melton attorney Dale Danks asks for emergency relief from the Mississippi Supreme Court. (A second, much shorter motion (PDF, 484 KB) makes substantially the same arguments but in a filing with Judge Tomie Green herself.) The motion asks that Judge Green, who issued an arrest warrant for Melton for probation violations last Thursday, be recused from any further matters relating to Melton's probation. It asks that the arrest warrant be vacated or stayed until a new judge is appointed to oversee Melton's probation.
The motion argues that Green should "immediatly" be recused based on her earlier decision to recuse herself from Melton's approaching felony trial for his alleged involvement in the Ridgeway incident. "On November 20, 2006, (Green) transferred all pending matters against Mr. Melton to the Hinds County Circuit Senior Judge explaining in her Order the existence of ex parte contact and communications with persons outside the judicial system and outside the presence of counsel; further Judge Green stated she might be a witness in the future cases. In the Order (Exhibit "3"), Judge Green retained jurisdiction over plea negotiations that she participated in with Mr. Melton. These reasons alone require Judge Green's recusal."
Danks' motion makes much of the fact that Green rejected an earlier plea bargain between Melton's attorneys and prosecutors, insisting on stricter conditions for Melton's probation. For instance, the motion states that it was Green who insisted that Melton wear an ankle bracelet, though only for the first three months of Melton's year-long probation. The motion contends that Melton should have had that bracelet removed Feb. 16. As part of the agreement, "the trial judge also agreed to keep certain conditions of the plea deal confidential and directed that the record of the plea negotiations be sealed."
Danks argues that this intervention by Green violates Rule 8.04 B.4 of the Uniform Circuit and County Court Rules, which "expressly states that '[t]he trial judge shall not participate in any plea discussion.'"
Danks' motion also claims that Melton's curfew was set by his probation officer rather than Judge Green. "Mr. Melton's counsel was advised by the probation officer that he had nothing in writing from the Court establishing a curfew, but that it was 'an unwritten policy.' Furthermore, and irrespective of whether or not an enforceable curfew existed, Mr. Melton advised the probation officer of his activities and was not instructed by the probation officer to cease any of his activities."
Danks also expresses concern about a statement Green made to The Clarion-Ledger, in which she states, "I can't imagine Jim Hood getting together what he needs to get together in that type time by early next week." Green indicated that Melton might spend as long as two weeks in jail awaiting his probation recovation hearing, according to the motion.
Danks' final point regarding Green is that "previous actions of the trial judge would cause a reasonable persion knowing all the circumstances to harbor doubts about her impartiality to preside over any probation recovation hearing." Danks mentions the temporary restraining order and preliminary injunction Green issued to city employees, forbidding them to refer to the Ridgeway duplex as a "drug house," an order that was later overturned by the Mississippi Supreme Court.
"Judge Green's treatment of the civil/injunctive component of the Ridgeway Street incident was unprecedented," Danks writes. "Judge Green reportedly made numerous procedural and substantive errors, belittled counsel for the City and improperly shifted the burden of proof. ... As a direct result of Judge Green's conduct towards the City of Jackson arising from an incident involving Mayor Frank Melton, the city filed a Writ of Mandamus seeking Recusal of Trial Judge. ... Apparently, instead of defending against the City's attempt to have Judge Green recuse herself, Judge Green transferred 'all pending cases' involving the City of Jackson to the Senior Judge."
This alone indicates that Green is not impartial and should be recused, Danks contends.
Danks concludes by arguing that none of the probation violations listed in Green's arrest warrant for Melton were actually probation violations. Danks argues that the curfew violation is not a probation violation because curfew was never part of Melton's plea agreement or subsequent Sentencing Order."
Danks acknowledges that Melton was "present" during police activities on Feb. 10, when Melton participated in a raid on the Upper Level nightclub. "However, the presence of Mr. Melton as Mayor during activities of the Jackson Police Department is not a violation of any condition of his probation," Danks writes.
Danks also argues that Melton did not violate his probation when he spent the night in the presence of minors Jan. 3 because this was not a term of his probation, either.
Danks speculates that the Jan. 9 letter (PDF, 284 KB) Dennis Grant of Probation Services Company sent Melton, warning him not to violate his probation, originated with Green. "It is obvious from this letter that the probation officer met with Judge Green regarding the clarifications of probation conditions. For the first time, Mr. Melton and his counsel were informed of probation conditions that heretofore did not exist."
In that letter, Grant writes Melton: "The conditions of your bond are also conditions of probation and any violation of either can lead to revocation of your suspended sentence."
Watch for updates.
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