The Inadvertent Empowerment of the Accused

Sir Alexander Fleming was awarded a Nobel Prize for his discovery of penicillin – by accident. While he may not be worthy of such notoriety, the Honorable Judge Jeff Weill, Sr. of the Hinds County Circuit Court in Jackson, Mississippi, may have unintentionally given a large handful of indigent defendants power over their cases that few have ever enjoyed. Judge Weill made quite a few assumptions when he sua sponte “reassigned” cases from our office to local, private attorneys based on what he determined to be “good cause.” I can say that confidently, because no hearing was ever held to establish or merely articulate Judge Weill’s reasoning. He literally took clients away from an office with which they already had a relationship and forced them to start again with private counsel – many of whom had zero criminal experience, let alone trial experience.

Some of you may have already heard about this story. If so, you can skip right ahead, but for those who have not, get your popcorn ready because this story is entertaining. Judge Weill was elected (yes, we elect everything in Mississippi – from coroner to members of our Supreme Court) and began his tenure in 2010. Since then the appellate courts in Mississippi have said the following:
 

1.  Judge Weill, you cannot pick the attorneys who prosecute cases before your court – even when that prosecutor makes the crazy decision to not prosecute a particular case based on lack of evidence (Williams v. State, 2014 WL 7085959, also found in 2013-IA-00402-SCT).
2. Stop thinking for us, Judge Weill. The United States Supreme Court cases are quite clear; you must provide transcripts to indigent defendants who are being retried after a mistrial.

“…the State may not have an objection, but apparently the State doesn’t share my concern about the cost to the taxpayer. I just – I just don’t think it’s called for in this instance, nor do I think the Supreme Court would require that burden, so I’m going to deny the request for a transcript…” Transcript pp 20-21 from (Washington v. State, 2013-M-00819).
 

Judge Weill wrote in his response to this Petition (and I honestly cannot make this up; it’s just that good)
 

“…there were three defense attorneys who actively participated in the trial of the co-defendants, therefore at all times during the trial, there were at least two attorneys at the defense table who were capable of taking notes of witness testimony and general proceedings.” 
 

Because we all know that impeaching a witness with an attorney’s handwritten notes works almost…never. Please humor me and just imagine that playing out in trial.

1. Judge Weill, stop granting summary judgment all the time, please? (2012-CA-01629-COA, 2012-CA-00497-COA, 2012-CA-01567-COA)
2. When a person’s conviction is expunged, that person is not required to register as a sex offender anymore because…well, it’s all been expunged. (Stallworth v. State, 2013-CA-01643-SCT)

5.     If the Office of the Hinds County Public Defender believes they have a conflict when it comes to representing someone who is about to go to trial, the prosecutor does not have the power to provide an opinion of whether they think it’s a real conflict, and Judge Weill, you cannot require the accused to go to trial with an attorney who cannot ethically (and zealously) represent their client. (In re: Timothy Russell, 2013-M-00840) We know you feel that having another attorney represent Mr. Russell would just be another burden on the taxpayers of Hinds County, but I mean, you have read the rules at some point, right? 

In November of 2013 Judge Weill makes what he thinks is a simple request to the Hinds County Public Defender, Michele Purvis Harris: Remove Assistant Public Defender Alison Kelly from my courtroom and put somebody else in here. That same month Purvis Harris denies the request. Nothing else is said about the matter. In the meantime, Alison Kelly continues to represent clients, obtain not guilty verdicts, and successfully appeal decisions for her clients to the Supreme Court of Mississippi like the ones cited above. 

In January of 2015 we discover that Judge Weill has been sua sponte appointing private counsel to cases in which we previously had been appointed at the municipal court level and in which we had no conflict. Our office then files “Motions for Clarification on Representation” for each of those cases because…what just happened? And why should the good taxpayers of Hinds County – all of whom Judge Weill apparently really likes a whole, whole lot – have to pay for private attorneys when we have a fully funded public defender office that is already working on these cases?

Judge Weill quickly responds to our pleadings by writing a letter to the Board of Supervisors – you know, the people who would be paying the bill to all these private attorneys – and attempts to explain his reasoning. Weill has found “good cause” to remove all these cases from Alison Kelly because Kelly is simply unfit to practice law before his court. Never mind the fact that Judge Weill is without the authority to do any of this because he is not the Mississippi Bar Association nor is he the Mississippi Supreme Court. Weill does have the power to hold a hearing on this issue, but why do that?  Alison Kelly is unfit because well, Judge Weill just thinks she is too unprofessional in his courtroom, and look at all this free work she is doing for people outside of her capacity of public defender! If her boss, Michele Purvis Harris, is not going to reassign her to another courtroom, Judge Weill is just going to take all of her cases and assign them to private attorneys. Never mind the fact that NONE of the clients were asked by Judge Weill what they wanted; NONE of our clients have asked to be reassigned; and NONE of our clients seemingly have any problem with our office representing them. Judge Weill has made a decision, and that’s that.

What follows is the most exciting few months any public defender could ever have in the realm of criminal litigation. (Look at it for yourself. Case No. 2015-M-00397) Motions are written. Attorneys are held in contempt of court for trying to represent clients in open court but are not given the opportunity to be heard. Amicus briefs are filed. Judge Weill responds with a 600-page indictment of what he believes to be Alison Kelly’s unprofessional behavior, filed under seal, that the public later finds out is a bar complaint. Stakes are higher than anyone really wants to admit. The Miss. Supreme Court is about to decide whether a Circuit Court judge has the power to interrupt the continuing representation of an accused and his public defender by reassigning the case away to a private attorney (when no one has asked him to do so), who may not have the experience necessary to navigate the rough waters that are Judge Weill’s courtroom.

A month and a half after the dust settled, a decision comes down. The Miss. Supreme Court states: “…absent a finding through the bar complaint process that Kelly is incompetent to practice, Judge Weill is without authority to deny Kelly the right to practice before him, based on his belief that she generally is incompetent.” Because there are 55 cases where Judge Weill assigned private counsel, the Supreme Court advises our office to inform each of our previous clients in each of those 55 cases, and give them the opportunity to choose to “continue with the private counsel Judge Weill has appointed to represent them, or they may choose to have the HCPDO reassume their representation.”

To date, the overwhelming majority of clients who we have been able to contact have come back to our office. Less than five former clients have ultimately decided to stay with their private counsel. Requests for payment by those private attorneys have been denied by the Hinds County Board of Supervisors because, in their opinion and the opinion of the County Attorney, the appointments were not legal from the onset, and hey, it’s all about costs to the taxpayer, right?

Judge Weill inadvertently provided these people more power than he ever envisioned – the authority to choose their appointed counsel. And if that is the end to this long, seemingly unending saga, the fight was absolutely, without question, worth every minute of it.