Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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Wednesday's Clarion-Ledger contained this article about the City of Jackson settling a lawsuit with Cedric Willis, who was wrongfully imprisoned for 12 years. Willis was convicted of murder and armed robbery in 1997, but was later exonerated by DNA evidence. 

Willis alleged that the City of Jackson was at fault because a police officer lied when he claimed that a confidential informant identified Willis as the perpetrator. But Willis' attorney Rob McDuff of Jackson stated that the majority of blame should go to former Hinds County District Attorney Ed Peters and his assistant D.A. Bobby DeLaughter:

Willis' attorney, Rob McDuff said the settlement was less than his client should have received, but called it a "reasonable compromise" in light of a recent U.S. Supreme Court decision that made it harder to win this sort of case.

"This settlement of Cedric's federal constitutional claims is not what he should have received, but there were certain factors that required us to compromise," McDuff said.

"We could not sue the culprits most responsible - former prosecutors Ed Peters and Bobby DeLaughter - because of the legal doctrine of prosecutorial immunity."

Ed Peters was something else. Dirty as all get-up but equally slippery. At least DeLaughter lost his job and did some time.    

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Last week the Mississippi Supreme Court issued decisions in two cases that will allow voters in the November elections to decide issues related to abortions and eminent domain.The Court basically punted on the substantive issues and decided the cases on procedural grounds.

In Hughes v. Hoseman the plaintiffs challenged Measure 26, which asks voters to decide whether life begins at conception. Cliff Johnson and Rob McDuff of North Congress Street in Jackson represented the plaintiffs.

Here is the Court's 7–2 opinion. Justice Pierce wrote the majority opinion. Here is a CNN article on the case.

The Court determined that the dispute is not ripe for adjudication, since the amendment has not passed yet. The decision contradicts a 2000 Miss. Supreme Court decision that ruled that the Court does have the authority to review the constitutionality of proposed initiatives. Neither side raised the ripeness issue.

In Speed v. Hoseman, the plaintiff challenged the State's ability to take and transfer private property through eminent domain. Here is the Court's 7–2 opinion. Justice Lamar wrote the majority opinion. As in the personhood case, the Court dismissed the case on ripeness grounds.

My Take:

I thought David Hampton's analysis in the Clarion-Ledger was good:

It is disappointing that the state Supreme Court is allowing the referendums on eminent domain and the so-called "personhood" amendments to proceed on the Nov. 8 ballot. There clearly are legal issues with both, but the court basically punted and said the election should be held before any further consideration. The court said it was not known if the amendments would be rejected, so it would be premature. News flash.  As flawed and potentially harmful as both of these amendments are, they will be overwhelmingly approved. The move to restrict eminent domain appeals, wrongly so, to property rights beliefs and the personhood amendment is a thinly veiled referendum on abortion. They have strong public support. They, along with the initiative to require voter ID, however, mostly are politically motivated efforts to appeal to voters passionate about those issues and bring voter turnout, which Republicans see as beneficial to the GOP. The Supreme Court will be seeing these again. The fact that we have an elected Supreme Court most likely played a role here. It would have been very politically unpopular for the judges to block the election. That's too bad. These initiatives should not be on the ballot.

In all likelihood, the Court's decision simply delays its having to rule on these politically sensitive issues. I prefer an appointed judiciary so that observers don't view “an elected Supreme Court” as being a factor in decisions.

Finally, these opinions are more evidence that the principle of stare decisis is not strong in Mississippi—at least not currently.

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I watched the HBO documentary Hot Coffee on Monday night. Here are a few random thoughts.

• The Mississippians in the documentary were superb. Former Miss. Supreme Court Justice Oliver Diaz, Jackson attorney Rob McDuff, former Miss. Supreme Court Justice Chuck McRae and author John Grisham all spoke eloquently and convincingly.    
• I had forgotten how bogus the government's case against Diaz appeared. For me, the fact that the government prosecuted Diaz soiled the prosecutions of Minor, Teel and Whitfield. I don't have a problem with those prosecutions. But the decision to prosecute Diaz was a mistake and, in retrospect, looks politically motivated.  
• I felt stupid to have never connected the fact that taxpayers pay for the cost of tort reform. When tort victims fully recover in the Court system, Medicaid and Medicare are reimbursed and are not saddled with the plaintiff's future medical care. Under the cap system, people wind up back on the Medicaid rolls and these entities receive less reimbursement.
• It also reminded me that the system that Mississippi nursing homes use to shield their operators from liability also shifts the burden or paying for their negligence to taxpayers who are funding Medicare and Medicaid.
• I had never seem the pictures of the burns to the legs of the victim in the McDonald's coffee case or heard the actual facts of the case. The fact that people in this country were misled by her lawsuit is sad.
• The documentary solidified what I had already figured out: the general public does not understand tort reform. They believe that caps apply to frivolous lawsuits. In fact, the opposite is true. Caps only come into play in non-frivolous cases with extensive injuries. Big business has effectively and intentionally misled the public on this issue.

The film made me sad. Sad for the victims portrayed in the film, who were under compensated due to caps or kept from the courthouse due to mandatory arbitration clauses. Sad for the American public, who were duped into supporting tort reform by those they trust.  

The film also made me sad for my profession. The legal profession has had its image tarnished by greedy ambulance chasers who advertise that they can get large sums of money for accident victims who were not really hurt. They may not come out and say that in their ads, but that is what they are selling.

Have you ever noticed that in lawyer commercials with people who got a big check, the people don't look hurt? How it's never the family of the dead guy? Or the woman who lost her leg? Or the child who suffered brain damage and will never be able to take care of herself? Think these commercials could be a factor in public support of tort reform?       

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On Monday night at 8:00 p.m., the documentary Hot Coffee airs on HBO. You can watch the official trailer for the movie below. The film analyzes tort reform in the U.S.

In addition to the famed McDonald's spilled-coffee verdict, the movie covers Mississippi Supreme Court elections and the prosecution of former Mississippi Supreme Court Justice Oliver Diaz. John Grisham, Justice Diaz and Jackson lawyer Rob McDuff are all shown in the trailer.

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The Clarion-Ledger reports on the court proceeding in Hattiesburg on Thursday where two men who were in prison for thirty years were released after DNA tests proved that another man committed the rape and murder that the men “confessed” to. Phillip Bivens and Bobby Ray Dixon were released. A third man, Larry Ruffin, died in prison in 2002. Rob McDuff of Jackson represented the trio.

Jimmy Carter was the President when these men were put in prison. The Iranian Hostage Crisis (remember that?) had not begun. Hall of Fame quarterback Dan Marino had yet to play a down of college football. Brett Favre was 9 years old.

I was 12 years old and finishing up the sixth grade.

These men were in prison for a long time.

  It sounds like there was always evidence that these men were innocent:

In addition, the eyewitness in the case, Patterson's 4-year-old son, Luke, told authorities there was one assailant, not three.

The three men didn't even know each other and confessed under apparent heavy police coercion to avoid the gas chamber:

Bivens, a native of California who had briefly visited his brother in Mississippi, said he never knew Dixon until somebody pointed him out in a jail cell.

He said he decided to plead guilty to a crime he didn't commit because he didn't want to go to the gas chamber.

Incidentally, Dixon has lung cancer and a brain tumor.

The D.A. in 1979 disputed that the men were beaten:

The district attorney, who was in office in 1979, disputed statements that Dixon and Ruffin were beaten, saying he knows the authorities involved in the case.

Well, at least he can finger them—since he “knows” them. Those men deserve to be the subject of police interrogation—and possibly prison—themselves.

Mississippi law allows those who were wrongfully imprisoned to recover $50,000 per year up to a $500,000 maximum. The State should immediately pay $500,000 to Bivens, Dixon and Ruffin's estate. The men should not even have to hire lawyers. The state should pay the money and apologize.

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Jimmy Gates at the Clarion-Ledger reports on a hearing yesterday in Eaton v. Frisby on the issue of whether the Peters-DeLaughter aspect of the case will be kept under seal. The more that this story develops the weaker Eaton's arguments sound. The article summarized the party's positions as follows:

Frisby:

But Alan Perry and Robert McDuff, attorneys for Frisby, now known as Triumph Group Inc., argued sealing should be done on a document-by-document basis.

"Closing everything engenders suspicion and mistrust," McDuff said.

Eaton:

Eaton has argued to keep many court papers sealed, including Yerger's order for Peters to give a deposition. Peters' transcript, however, would be sealed until the court makes a final determination, Yerger ruled.

Yerger asked [Mike] Wallace how Eaton would be prejudiced if the documents in the Eaton vs. Frisby case weren't sealed.

"By suspicion," Wallace responded.

Frisby has the better argument by far. We're ALREADY suspicious.Eaton wanting to maintain secrecy into the investigation of Eaton makes me more suspicious. If you did nothing wrong, why do you care if everything is public?

Eaton hired Ed Peters in the biggest civil case in Mississippi-- a theft of trade secrets case involving hundreds of millions of dollars. Peters' background was as a prosecutor, not as a civil trial lawyer who had obtained a lot of big verdicts. Then Peters did not file an entry of appearance in the case and Frisby did not even know he was on the case. Eaton says that it hired Peters because he had tried a lot of cases. But Eaton's story has some obvious holes.

First, when you hire a hot-shot trial lawyer you want that lawyer to appear in the case to try to scare the other side. Having Peters lay in the weeds does not really serve a purpose. Second, it begs the question of how Peters was being paid? Lawyers getting paid by the hour have an economic incentive to formally appear in the case so that the opposing party has to mail them all their pleadings. In a case this big, a lawyer billing by the hour stands to make a lot of money just reading all the pleadings that the parties file. That was apparently not a big concern for Peters.

Third, Eaton's claim is just intellectually dishonest. Although I believe that there should be, there is no prohibition in Mississippi of hiring a lawyer because of the lawyer's perceived relationship with the judge. The lawyer can't discuss the case with the judge, but he can work on the case. And if the judge respects the lawyer because he knows him, that's just part of it. Our system trusts the judge to not let the relationship influence him and the lawyer to not contact the judge about the case. Here, Eaton could literally just have said that it hired Peters because it thought that Peters could help it with the judge. But Eaton can't say that here, since DeLaughter had no way to know that Peters was on the case, since Peters never filed an entry of appearance.

Eaton appears to be conceding that Peters had improper contact with DeLaughter. Larry Latham's testimony in a 2008 hearing before Judge Yerger pretty much proves that fact with circumstantial evidence. Eaton's defense appears to be that it did not know what Peters was doing. But that begs the question of why Peters would do it on his own? Tim Balducci did it with Judge Lackey because he was sucking up to Scruggs. Peters did it with DeLaughter in the Langston case for a million dollars. But in the Eaton case why would Peters, with Scruggs' million already in his pocket, risk his and DeLaughter's freedom on a case where he wasn't even the lead local attorney for Eaton? When he didn't even appear on the pleadings? When if he was getting paid by the hour he would get paid the same win or lose? It just doesn't make sense unless:

1.  Peters and DeLaughter were so corrupt that they did not even think about crossing ethical lines; or
2. Eaton and/ or one or more of Eaton's other lawyers knew what Peters was doing.

If there's another plausible explanation I'd like to hear it.