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Today, Judge Tomie Green filed a response (PDF, 128 KB) to attorney Dale Danks' Tuesday motion calling for emergency relief from the Mississippi Supreme Court. Danks, who is the lead attorney on Mayor Frank Melton's defense team, accused Green of larceny for withdrawing a decision on March 5 and replacing it the morning of March 6. In her response, Green calls for Danks' motion to be stricken from the record.
"Preliminarily," Green wrote, "the undersigned trial judge humbly requests that the supplemental petition filed by the attorneys representing Defendant Frank Melton on today March 6, 2007, falsely accusing the trial judge of the commission of the crime of the tampering or the stealing of court records pursuant to M.C.A. 97-9-3 be STRICKEN from the record." (Emphasis in original.)
Green goes on to explain that the March 5 decision she filed and then withdrew in response to Danks' motion asking that she recuse herself was the wrong draft of her order. It was also missing exhibits.
Green writes that the mistake was both simple and innocent: "On March 5, 2007, one of the circuit judges ask (sic) me to qualify the jury for him because he was sick. While talking with the judge I received Defendant Melton's motion to stay my arrest warrant and requesting my recusal. I gave my court administrator and law clerk instructions about drafting the order denying both and directed certain exhibits be attached. After the jury was qualified, I quickly read the order and signed it without noticing the missing exhibits. I then went to presided (sic) over two (2) criminal trial. I then directed the law clerk to retrieve the order from the clerk's office. I don't recall being aware of the Supreme Court's dismissal for lack of jurisdiction."
This last point from Green in critical, because in his motion accusing Green of larceny, Danks suggested she was trying to evade the Supreme Court's jurisdiction. "Judge Green had no authority whatsoever to remove her appealable Order from the Court file and it appears that she did so once she learned of this Court's Opinion of March 5, 2007, in an attempt to deprive this Court of jurisdiction," Danks wrote.
Green writes: "Defendant's criminal allegations are defamatory and derogatory and were even sent to the Mississippi Commission on Judicial Performance, without just cause. I have never given either the Defendant or either of his attorneys reason to publicly make such harsh claims or criminal charges against the court, with complete disregard for the truth. Accordingly, the trial judge requests sanctions for such misconduct."
Green then notes that she has submitted the substituted March 6 order. She concludes: "Moreover, I ask that this honorable court grant me the presumption of impartiality, inasmuch as the Defendant has provide (sic) no evidence to support their motion for recusal. Finally, there is absoltely nothing unusual about the alleged probation violations, supporting affidavit from the probation officer, warrant, arrest and hearings to be prosecuted by the State's Attorney General, so as to require this court's intervention."
Meanwhile, in a supplemental emergency application for extraordinary relief, Danks accuses Green (PDF, 92 KB) of further misconduct, though he uses more cautious language. "Following the filing of this second Writ," Danks writes, "public comments were purportedly made by Judge Green in the Clarion Ledger wherein she, among other things, negatively commented on the 'defense attorneys (sic) integrity.' Exhibit 'B'. These type of comments appear to be prohibited by Cannon 3B(9). The comment to this rule specifically states that 'in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly.' Furthermore, these public comments, attributed to Judge Green, if made, are further evidence in support of the pending request for her recusal as a reasonable person would conclude that Judge Green harbors at least some prejudice against defense counsel and/or Frank Melton, which would affect her ability to be fair and impartial."
The copy of Danks' motion provided to the Jackson Free Press by the Supreme Court's clerk, however, did not include the Exhibit B Danks references. However, in a March 6 story, The Clarion-Ledger wrote: "Green said the tampering accusation reflects poorly on the defense attorneys' integrity." This line was not a direct quote, however. The direct quote that follows does not make any direct reference to defense attorneys' integrity, though it does assert that they could be subject to sanctions: "'No lawyer would make that type of claim against a judge and not think that is basis for a bar complaint,' (Green) said. 'If that's what they believe, they need to file criminal charges.'"
On March 8, Danks corrected this apparant omission in a supplemental filing (PDF, 68 KB).
Finally, Attorney General Jim Hood also filed a response with the Supreme Court (PDF, 148 KB). "Because of the timing of events, the pending emergency petition seeks appellate review of the withdrawn March 5 order but not the more detailed March 6 substituted order," writes Special Assistant Attorney General Harold E. Pizzetta III on behalf of the attorney general's office. (Emphasis in original.) "Fortunately this Court need not resolve the unique jurisdictional issues raised by the pending emergency petition."
The AG's response goes on to argue that the court should reject defense attorneys' request for the Supreme Court's intervention on its face. "A mandamus rule under Rule 21 is an extraordinary remedy available only when the petitioner lacks a plain, adequate, and speedy remedy in the ordinary course of law," Pizzetta writes. "A mandamus petition is not a substitute for an available appellate prodedure."
Here, the AG's office is arguing that the court should reject Danks' request for extraordinary relief on the withdrawn order because he can appeal, through the regular process, the substituted order. Pizzetta argues that doing so will save the court the trouble of resolving whether Danks can appeal a withdrawn order. He also argues that rejecting Danks' motion "would benefit practitioners and this Court by reinforcing that recusal issues must be presented pursuant to Rule 48B and not through successive emergency mandamus petitions." In others words, rejecting Danks' motion would make it clear that defense attorneys must argue for recusal through the regular process rather than through motion after motion to the Supreme Court.
If the court decides to consider Danks' motion, the AG argues, Danks' arguments are "not well taken." Pizzetta points out that Danks' second motion refers to three incidents that occurred in November, 2006. "Because petitioner delayed asserting his recusal claim, his arguments are waived pursuant to controlling procedural rules and precedents of this Court." In other words, Danks' waited too long to demand Green's recusal.
The AG's response makes specific reference to the plea bargain negotiations that Danks accused Green of improperly influencing. "As set forth in the transcript attached to the trial court's substituted order, the petitioner did not object to the conduct of the plea procedures during the proceedings, and in fact benefitted from the complained of procedures," Pizzetta writes. "Further, during the plea colloquy the petitioner acknowledged under oath that he was waiving procedural and appeal rights by enterring his plea." This is a point that Green made also.
"The time and diligence requirements embodied in relevent precedents and Rule 1.15 are designed to prohibit the strategy employed by opposing counsel," Pizzetta continues. "Knowing of potential grounds for recusal, a party may not delay seeking recusal until such time as an adverse ruling is entered." Here, the AG is arguing that the rules and precedents governing recusal are designed to prevent attorneys from filing for recusal only when a decision breaks against them.
The AG concludes his response with sharp criticism of Danks for the tone of his motions. "Finally, the unfortunate tone of these proceedings as a whole warrants the attention of this Court," Pizzetta writes. "For example, petitioner has strayed beyond ardent advocacy by accusing the trial court judge of committing a crime. This Court has previously cautioned attorneys that theatrical comments alleging judicial corruption for the purpose of securing a procedural advantage are inappropriate. See Mississippi Bar v. Lumumba, 912 So.2d 871 (Miss. 2005). When an attorney makes a false accusation of judicial corruption, such an accusation 'adversely affects the administration of justice and adversely reflects on the attorney's judgment, and, consequently, her ability to practice law.' Id. (quoting In Re Holtzxman, 573 N.Y.S.2d 39, 43, 577 N.E.2d 30, 34 (N.Y. 1991)). It is more than regrettable that a matter of such importance to the citizens of Jackson finds itself in this posture."
As of 3 p.m., the Mississippi Supreme Court has not yet ruled on these motions.
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