Criminal defense bar – my favorite issue

I’ve been doing criminal appeals for 26 years and lately I realized that my favorite issue is that the defendant was denied his opportunity to present a defense whether because he was refused an instruction, not allowed to adduce certain evidence, or denied appropriate cross-examination. I see this happening all too often in the courts of this state and I’m mesmerized by televised trials from other states where this never seems to be a problem.  So, anyway, if this is happening to your client, here are some cites you can use to,  if nothing else, preserve the error:  

Mississippi law  has emphatically upheld the right of a defendant to present his theory of the case to the jury.  Murphy v. State, 566 So.2d 1201, 1206 (Miss. 1990).  Similarly, the right to present a defense is a right guaranteed by the federal constitution.   Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973).  The United States Supreme Court has long held that an accused’s right to “establish a defense” is a “fundamental element of due process.”  Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

right to present a defense via instructions: Lanier v. State, 684 So.2d 93, 95-97 (Miss. 1996) (error to refuse defendant a lesser included instruction reflecting his theory of the case).

right to present theory of defense via evidence: Williams v. State, 54 So.3d 212, 214 (Miss. 2011) (error to exclude witness for discovery violation who would have corroborated defendant’s theory that victim had a gun just before he was shot).

right to cross-examine to establish theory of defense: Shaffer v. State, 740 So. 2d 273, 281-282 (Miss. 1998) (error to refuse to allow defendant to cross-examine pathologist about his statements during autopsy that contradicted his opinion that killing was an intentonal murder).

And then this case decided by the Ct. of App. on Jan. 14, 2014 involving hearsay that supported the defendant’s case:
Hartfield v. State; – three people, Hartfield, Dixon and Graham, were indicted for the murder of Hartfield’s wife, Tabitha. Dixon testified against Hartfield and Graham in separate trials. It is difficult to know why Graham didn’t plead guilty since she’s the one who called the police and confessed to killing Tabitha, her cousin, and took police to her body. Graham was called to testify at Hartfield’s trial and she invoked her 5th right to remain silent. Hartfield attempted to introduce letters that Graham had sent to Hartfield and Graham’s boyfriend and mother – letters that inculpated Graham and exculpated Hartfield. The prosecution objected that the letters were hearsay. The Miss. S.Ct. reversed on the basis of its decision in Lacy v. State, 700 So.2d 602, 607 (Miss. 1997). The statement should have been admitted pursuant to MRE 804(h)(3) a statement against interest where there were corroborating circumstances that indicating trustworthiness. Since Graham had admitted guilt and had made statements that she and Dixon murdered Tabitha, the letters should have been admitted. Indeed, it was an abuse of discretion to exclude them.

One thought on “Criminal defense bar – my favorite issue

  1. This may be case for you;it’s another Judge Kitchens trial down in Lowndes county involving the Heritage Academy pubescent male student allegedly having been “rubbed through his pants” during private voice-instruction by the school’s music director. The student was the son of a local law enforcement officer and it took him six-months of molestation/voice instruction before he made his claims. The defendant, Julian Mingo, warned the student before the beginning of his instructions that “weird techniques” would be involved in voice projection instructions…placing the instructor’s hand on the body’s diaphram.(right above the “naughty parts). Judge Kitchens refused to allow Mingo’s voice instruction expert to testify, citing Judge Hilburn’s decision in Beckwith’s triple jeopardy trial to not allow the exculpatory testimony of the Memphis truck driver, because Beckwith “delayed the introduction of the witness so as to gain a strategic and tactical advantage.” The Memphis truck driver claimed that the white Plymouth Valiant parked at Joe’s Drive- In near Evers’ home during the night of the assassination was his (truck driver) and not Beckwith’s. The truck driver had previously testified to that effect in Beckwith’s second trial.

    There was “disorder in the court” during Judge Kitchens court during the conduct of proceedings at Mingo’s trial. That trial should never have been conducted in the 4-county area(Lowndes, Oktibbeha, Clay, Noxubee). Kitchens imposed upon Mingo three, ten-year prison terms to run consecutively.

    Are there familial connections between MSSCA Judge Kitchens(Beckwith’s court-appointed attorney at the third trial) and the Circuit Judge Jim Kitchens? If Circuit Judge Jim Kitchens did write the dissenting opinion for CJ Judge Dan M. Lee in Beckwith’s Batesville trial, he nailed it! But a mistrial was certainly in order after that circus-like altercations between Miller and Judge Kitchens that played out before the jury in Mingo’s case.

    As a follow-up to that case, two- years later a local Columbus businessman, Gill Dishongh, pled guilty to the molestation of the young child of a family friend that took place over a period of years. The guilty plea resulted in Judge Kitchens sentencing Dishongh to two-years of prison time.

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