Jackson Free Press

On April 26, a Hinds County jury acquitted Mayor Frank Melton and Dets. Michael Recio and Marcus Wright of all 11 charges they collectively faced for demolishing a duplex at 1305 Ridgeway last year.

The defense won by convincing Judge Joe Webster to allow defense lawyers to frame the trial. Defense lawyers employed a two-part strategy in order to win acquittal while admitting that the defendants had, in fact, demolished the duplex. First, they used an archaic definition of "malice" to argue that the jury had to find that the defendants had evil in their hearts in order to convict. Second, they convinced the jury that the Ridgeway duplex was a crack house.

With the trial framed in these terms, the prosecution stood little chance.

In opening statements, defense lawyers argued that jurors would have to find that the defendants had "evil intent" in order to convict because of the word "malicious" in the charge of felony malicious mischief. In closing statements, Wright attorney Robert Smith said the defendants were "brave men with good hearts," and Melton attorney Merrida Coxwell said that "one thread" ran through all the charges, which was whether the defendants had acted with "evil intent."

Defense lawyers relied on outdated language to make this argument, specifically the instruction to jurors that "malice" was "ill will, wickedness of intent, cruelty, recklessness or a mind disregardful of social duty," according to Mississippi College of Law professor Matt Steffey.

"That is old, archaic language," Steffey said. "That definition comes from the old common law—and I mean hundreds-of-years-old common law—definition of murder as a killing done maliciously. … I think in this case, the defense was able to use this rather outdated, statutory term to put the idea in the jury's mind that there had to be something 'evil' afoot with the mayor somehow, not just that he did it intentionally."

Steffey said that the purpose of the word "malice" in the statute was to distinguish deliberate acts from accidental ones, and he said that a modern code would have "foreclosed" any argument by the defense about "evil intent" through a clearer definition. Steffey implied that presenting the burden of proof this way allowed defense lawyers to open the door to jury nullification without violating court rules against such a defense.

"If you're on the jury, it allowed Mr. Danks to say you can't convict (Melton) unless he had evilness of disposition, whatever that means. I know that it means it wasn't an accident, but I think it plants the idea in the jury's mind, 'Do you really want to convict him for this?'" Steffey said.

"All they could argue was jury nullification, and it worked," District Attorney Faye Peterson told the Jackson Free Press. She argued that the judge allowed the defense to argue that the case was about "evil intent," but he did not allow the state to present evidence that would prove such intent, through testimony about Melton's alleged intoxication or his threat to destroy a car parked on the street. "I think jurors wanted to give (Melton) a second chance," Peterson said.

Prosecutors tried to demonstrate that Melton et al. had, in fact, had "evil intent." In closing statements, Assistant DA Dewey Arthur argued that the fact that defendants poured paint over Evans Welch's stove showed evil intent. Both he and Senior Assistant DA Stanley Alexander argued that jurors could see the defendants had evil intent because much of the demolition was done by self-proclaimed "Wood Street Players," one of whom said: "Look at what Frank has us doing. We're Wood Street tearin' up Virden. We're tearin' sh*t up." Alexander emphasized that point to jurors, remarking, "How are you espousing good will when you have one neighborhood set against another?" Alexander also pointed out that the jury instructions did not include the words "evil intent," but to little effect.

The prosecution lost a potent weapon in arguing about Melton's intent when the judge excluded evidence that Melton was drunk the night of the incident. In proposed jury instructions filed before the trial began, prosecutors included an instruction that "voluntary intoxication is not a defense," but the judge never allowed the jury to hear evidence about intoxication.

Still, once defense lawyers succeeded in arguing that prosecutors had to demonstrate "evil intent" rather than "deliberate action," they made the case a question of whether the defendants meant well, whether they were "brave men with good hearts." Convincing jurors otherwise was a losing proposition.

Once defense lawyers convinced the jury that the case revolved around the defendants "hearts," all they had to do was convince the jury that the Ridgeway duplex was a "crack house" to win.

Webster made some decisions to restrict that defense. In a pre-trial hearing, he threw out the more inflammatory material defense lawyers hoped to use, such as testimony about children buying and using drugs at the duplex. He also warned the defense that while he would allow them to argue that the crack house had a "reputation of being a crack house," he would not let them "hammer and hammer on it."

The problem was that Melton et al. had no defense but the argument that they were innocent because the duplex was guilty, and so they did hammer and hammer. Webster threw out most defense witnesses by excluding all testimony about drugs from before July 2005, and he insisted that witnesses had to have conveyed that information to the defendants. That restriction hardly slowed down defense lawyers, however.

Once Webster allowed defense lawyers to "hammer and hammer" about the duplex being a crack house, he lost control of the trial. By closing statements, Coxwell and Danks had turned Melton's criminal case into a political campaign about crime. Coxwell said that it takes only the small amount of cocaine police seized from the duplex to "start a flame that will destroy … an entire neighborhood."

"(Melton) finds himself on trial for trying to rid this community of drugs," Danks said. "That's an injustice ... the wrong people have been brought to trial in this case."

Melton supporters burst into applause at the conclusion of Danks' remarks, thus completing the transformation of the courtroom into political theater.

Prosecutors had tried to push back. In closing statements, Alexander said: "I keep hearing the words 'crack house,' 'crack house,' 'crack house.' If you look at these instructions you will not find the words 'crack house' in there." But considering the testimony the jury heard, prosecutors would have been better off if the words "crack house" had appeared in jury instructions, as in "you shall disregard all talk of the property being a crack house." Such an instruction might have made little difference—the damage was done.

Peterson told the JFP that by allowing the defense to submit police reports through a records clerk, Webster admitted "double-hearsay" as evidence, which she called a "first-year law school" error. However, prosecutors may have made a mistake in questioning police officers so aggressively. Once the judge admitted the police reports into evidence, and police detective Brendon Bell testified about making drug arrests at the duplex, the question was settled in jurors' minds. Prosecutors had good reasons, legally, for challenging arrest and lab reports, but by attacking police officers' credibility, they may have alienated the jury. If police officers testify that they found crack, jurors will believe it unless they are presented with compelling evidence to the contrary. Missing signatures, discrepancies in addresses and delays in filing reports were simply not enough to make jurors doubt that police had seized cocaine.

Once prosecutors lost the fight on admitting evidence that the duplex was a crack house, they likely would have been better off conceding the point. By questioning police officers' integrity with relatively weak evidence, prosecutors played into defense lawyers' hands by inviting jurors to decide that because the duplex was a crack house, the defendants were not guilty.

Certainly, the "crack house" argument shows how vital it was for the defense to remove Judge Tomie Green from the case, as Green gave every indication that she would not allow the defense to talk about the house being a crack house at all.

Webster was far more permissive with defense lawyers, and he allowed them to present a defense with little basis in the law, Peterson said. "We knew what we were up against. You have to respect the court's rulings when you're in the courtroom, even if the law says something different. For whatever reasons, this judge made rulings that were not reflected in the law or the case law. … I think that the judge allowed the defense to make the state appear as if we were protecting drug dealers, but I have never protected a criminal in my life."

In closing arguments, Alexander tried to argue that all citizens, including alleged drug dealers, have the right to protection from vigilante justice. He asked jurors to close their eyes and imagine that the defendants were not government officials but ordinary citizens. He asked jurors to remember that "people marched, people fought, people died for their rights" to equal protection under the law. He alluded to Mississippi's long journey from a state where mobs dispensed "justice" to one where all citizens are protected by due process and the rule of law.

By then, however, it was too late. The trial was no longer about the crimes of Melton, Wright and Recio, those men with "good hearts." It had become, instead, a trial about crime in general and drugs in particular, the "evil" that "destroys neighborhoods." The law invites us to set aside our passions and our politics to focus on the facts alone. Defense lawyers won their case by convincing jurors that passion is all.