09/12/2016 MON

8:15

FAX

ORIGlRIL
FILED

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

2016-}n-1079

SEP 12 2016

AP

Ut-HCE OF THE CLERK

SUPREME COURT
COURT OF APPEALS

INRE:ROBERTSHULERSMITH

TRIAL COURT'S STATEMENT IN RESPONSE TO ROBERT SHULER SMITH'S

MOTION TO ASSIGN HINDS COUNTY CAUSE NO, 251-16-120 TO JUDGE LARRY

ROBERTS

COMES NOW, Judge Jeff Weill, Sr., Hinds County Circuit Court Judge, and files this
response to the September 9, 2016 motion of Hinds County District Attorney Robert Shuler
Smith ("Smith") to have Hinds County Cause No. 251-16-120 assigned to Special Judge Larry
Roberts, who has been appointed to preside over Smith's felony indictments and matters related
thereto. Smith continues to make allegations in the media about 251-16-120 that seem to be
unsupported by the actual documents and hearing transcript. First, the undersigned trial court
judge has absolut.ely no objection to the unsealing of the entire file and transcript, as Smith has
repeatedly sought. However, prior to any unsealing, this Court should be aware of several
important issues related to the proceedings. Accordingly, the trial court responds as follows and
attaches the sealed transcript as Exhibit A so this Court can be fully infonned as to the
proceedings:
Important Factual and Procedural Considerations
Circuit Court No. 251-16-120 is a sealed case which was randomly assigned to the docket

of the undersigned judge, Judge Jeff Weill, Sr., on February 27, 2016. When it was assigned to
the undersigned, the case file had already been placed under seal by Senior Circuit Judge Tomie
Green by way of an Order signed on February 19, 2016. Judge Green prudently ordered the file
to be sealed, as the initial filing was a motion by the Office of the Attorney General to present

certain individuals for investigation to the Hinds County Grand Jury, due to an alleged conflict of

MOTION#

2016

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interest of the Hinds County District Attorney. All grand jury issues are required to be sealed
and confidential per URCCC 7.04. Mr. Smith was a party to the sealed case file and a recipient
of all sealed filings, but he has continuously failed to include relevant detail in his numerous
motions urging the seal to be lifted. Further9 Mr. Smith has made blatant public
misrepresentations about the nature of these sealed proceedings in his public statements to the
media.
The proceedings in 251-16-120 arguably relate to the original misdemeanor charges
against Smith. However, those were dismissed, and a three (3) count indictment was issued
against Smith on September 7, 2016, related only to Smith's alleged conduct with Christopher
Butler, a criminal defendant who Smith was prosecuting until he recently agreed to disqualify
himself. Even as recently as September 8, 2016, one day following the indictment focused only
on Butler, The Clarion Ledger reported as follows: "Smith believes sealed court procedures,
including a hearing containing testimony of an FBI agent, could be fav<>rable toward his case."
The very next sentence quoted Smith: "'There's a reason why ... they've resisted the release of
the hearing, while knowing what it contains,' he said." Jimmy E. Gates, Mollie Bryant, Hinds

County district attorney and assistant DA Tndicied, THF: CLARTON I ,F.nGF..R, September 8, 2016.
Given that Smith knows what the transcript contains, but he continues to misrepresent the

content, including an ongoing mischaracteri:,.ation of the swom testimony of an FBI agent, this
co'llrt is of the opinion that the interests of justice may in fact favor lifting the seal. Despite being
in attendance at the hearing, and after even being provided with a copy of Special Agent
Culpepper's testimony, Smith continues to publicly and misleadingly infer that the circuit court
is intentionally hiding court transcripts which would exculpate him. Smith's ongoing attempt to
malign the circuit court, simply because it furthers his ovvn personal interests, should not be

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permitted, and his continued efforts to equate the lawful sealing of grand jury documents by the
Hinds County Circuit Court as evidence of some intent to bamboozle Smith could be mitigated
by lifting the seal. However, prior to any unsealing, several procedural facts should be
considered.
First. prior to any order unsealing cause no. 251-16-120, certain redactions may be
required. During the sealed hearing Smith made numerous allegations which are very similar in
nature to allegations he made in a February 12, 2016 press conference regarding conditions
imposed in certain cases for release on bond. It is this court's Wlderstanding that Smith's
statements at the press conference arc now the subject of bar disciplinary proceedings. Thus, it

may be necessary to redact those portions so as to avoid giving Smith an additional opportunity
to continue to engage in public accusations against a sitting senior circuit court judge, especially

while the disciplinary proceedings concerning the very same public accusations are ongoing.
Redaction of those portions should to be ofno consequence to Smith, since these bond issues are
entirely unrelated to the charges that Smith had an allegedly improper relationship with
Defendant Christopher Butler. If that portion of the transcript related to bond release orders is
not entirely redacted, then the widersigned judge submits that, at the very least, Senior Circuit
Judge Tomie GreenJ who granted approval for the initial sealing of251-16-120 pursuant to
applicable grand jury confidentiality rules, should be given the opportunity to review the scaled
transcript and offer her position as to the propriety of unsealing the portion of the proceedings
that relate to the corresponding disciplinary proceedings initiated on her behalf by the
Mississippi Bar against Smith. Further, and as explained in detail below, at least one redaction
to the filings and transcript would be required under Mississippi law due to several brief
references to the identity of a person under indictment which has been issued but not yet served.

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The indictment remains sealed pending service upon that individual, per Miss. Code Ann. 97-9~
53.

Second, the proceedings in 251-16-120 concern a motion seeking to prosecute two

individuals based on an alleged conflict of Smith. One Defendant had already been indicted, but
the indictment remains unserved. The hearing primarily involved the second individual, who is

undisputedly a former client of Smith's and the father of two children ofan employee on Smith's
office staff. During the hearing, Smith conceded that he had an ethical conflict that would
preclude him from prosecuting his former client, and he announced that he had no objection to
another prosecuting agency proceeding, since he would recuse given their prior attomey client

relationship. Accordingly, Smith should not be entitled to have any further involvement in a
matter in which he admits he is ethically prohibited from all participation. lbis is even more
significant, given the direct familial relationship between Smith's employee and his former

client, who had been arrested and charged with violent cri1ninal conduct.
Third, while the undersigned does not have any objection whatsoever to the assignment
of this cause to Judge Roberts, the trial court felt compelled to clarify that sealed file 251-16-120
does not relate to any of the charges set forth in the September 7, 2016 indictment against Smith.

While the proceedings did partially relate to the initial misdemeanor charges against Smith, those
have since been dismissed, and the current indicted charges have no relationship to the
proceedings in 251-16-120. Given that Judge Roberts is already tasked with presiding over

numerous circuit court case files related to Smith's prosecution, it would be a disservice to Judge
Roberts to task him with reviewing an unrelated matter. For this reason, the undersigned has
included a copy of the sealed transcript with Judge Roberts' copy of the subject response, in the

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event he wants to evaluate the relatedness of the sealed proceedings to the allegations in the
jndictment.
Finally, it is important to recognize that Smith was a party to each and every filing and
proceedjng in 251 16- J20. Smith received every sealed document filed in 251-16-120, and he
personally attended and participated in the only hearing held in the matter. Despite being a
participant in the hearing, Smith and his current counsel (who was not present) misleadingly
continue to publically infer that this trial court is hiding proceedings which could exonerate
Smith. This public pandering should not be permitted, in view ofURCCC 9.01, which prohibits
pre-trial publicity. Even if Smith's public comments were permissible by the pre-trial publicity
rules, they are prohibited by the rules of professional conduct, because they are misleading and
intended to malign tMs court without any basis. MRPC 8.2; MRPC 8.4.

Conclusion
The undersigned trial court. judge files this response simply to clarify that contrary to the
misperception urged by Smith in the media, this judge has absolutely no objection to the
unsealing of251-16-120, as Smith requests. In fact, the unsealing would put an end to Smith's
ongoing public misrepresentations concerning the nature and relevance of these proceedings to
his criminal prosecution, which would benefit the Hinds County Circuit Court. The continuous
misrepresentations by Smith continue to mar our criminal justice system as the circuit court

judges attempt to conduct regular court business in the wake of the criminal charges against the
county's top prosecutor. However, prior to the release of the documents, the trial court requests
that this Court afford Senior Chcuit Judge Tomie Green an opportunity to review the hearing

transcript and respond, given the related bar proceedings pending against Smith. Further,
Miississippi b1w requires the redaction of the identity of an unserved indictee from the

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proceedings, so the identity of the unserved criminal defendant should be redacted throughout
the transcript prior to its release. Finally, this circuit judge has no objection to cause no. 251-16120 being reassigned to Judge Larry Roberts. However, because nothing remains to be
detennined beyond the sealing issue, and since that issue is addressed at length herein,
reassignment may not be necessary. The undersigned, however, leaves that within the discretion
of Senior Circuit Judge Tomie Green, Judge Larry Roberts, and this Honorable Court. To aid the
analysis of Judges Green and Roberts and of this Honorable Court, the undersigned has provided
a copy of the sealed transcript to each.

Respectfully submitted, this the 12th day of September, 2016.

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FAX

CERTIFICATE OF SERVICE
I, Jeff Weill, Sr. the undersigned judge, do hereby certify that one true and correct copy
of the foregoing, along with the exhibits hereto, has been this day forwarded to the following
persons via electronic mail:

Senior Status Judge Larry Roberts

Iroberts judge@yahoo.com
(including enclosure of sealed transcript)
Senior Circuit Judge Tomie Green
tgrccnuvco.hinds,Till:i,U8
zee929@aol.com
(including enclosure of sealed transcript)
Jim Waide, Esq.
Counsel for Robert Shuler Smith
(without enclosures)
Assistant Attorney General Robert Anderson
Assistant Attorney General Larry Baker
Counsel for the State of Mississippi
ra11de@a.go.state.ms.us
lbake@ago.state.ms.us
(without enclosures)
Dennis Hom
Counsel for The Clarion Ledger, pending Motion to Intervene
hornpayne@gmail.com
(without enclosures)
This the 12th day of September, 2016.

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HINDS COUNTY CIRCUIT COURT

Kelli Roberson Degnan
Court Administrator
Judge Jeff Weill, Sr.

Hinds County Courthouse

P. 0. Box 22711
Jackson. MS 39225-2711

T: (601) 968-6679
F: {601) 973-5541

weillscourtadministrator@co.hlnds.ms.us

TO:

Ms. Muriel Ellis

Mississippi Supreme Court Clerk
601-359-2407

FROM:

Kelli R. Degnan

OATH:

September 12, 2016

RE:

In re: Robert Shuler Smith

2016-M-1079

COMMENTS:

Enclosed please find the trial court's responi:ie to Mr. Smith 1 s

September 9, 2016 Motion to Assign Hinds Co. Cause No. 251-16120 to Judge Larry Roberts. The original response and the i:,ea1ed
exhibit will be hand delivered to your office today.

E-Filed Document

Sep 9 2016 15:23:17

2016-AP-01079

Pages: 4

IN THE SUPREME COURT OF MISSISSIPPI

No. 2016-AP-01079
RE: DISTRICT ATTORNEY FOR THE
SEVENTH CIRCUIT COURT DISTRICT
Hinds County Circuit Court Nos. 25CI1:16-cv-00220;
25CI1:16-cv-00355; 16-9002; 16-0-543; In the Circuit
Court of Hinds County, Mississippi, First Judicial District
ROBERT SMITHS MOTION TO ASSIGN ADDITIONAL CASE
(HINDS CIRCUIT COURT NO. 16-120) TO CIRCUIT JUDGE LARRY ROBERTS
Defendant Robert Shuler Smith moves the Court to transfer Hinds Circuit Court case number
16-120 to Circuit Judge Larry Roberts. Smith shows the Court as follows:
1.

On August 11, 2016, this Court (in 2016-AP-01079) entered the attached Corrected

Order Appointing Special Judge, Exhibit A, which transferred certain cases to Judge Roberts.
All of the cases transferred to Judge Roberts pertain to claims of wrongdoing made against District
Attorney Robert Smith. Cause No. 16-120 also involves allegations made by the Mississippi
Attorney General (through Assistant Attorney General Stanley Alexander) of wrongdoing by Robert
Smith.
2.

This Court omitted Cause No. 16-120 from its Corrected Order, Exhibit A, which

is currently assigned to Circuit Judge Jeff Weill. On motion of Assistant Attorney General
Alexander, Judge Weill ordered Cause No. 16-120 to be sealed.
3.

Smiths having a complete copy of the file and of the transcript of the hearing in

Cause No. 16-120 is necessary to his defense in a criminal case in which Smith has been indicted.
See attached Grand Jury Indictment, Exhibit B. The transcript of the hearing before Judge Weill
contains evidence that Smith has not, in fact, committed any inappropriate actions with respect to
criminal defendants, and indicates the nature of matters that Smith was lawfully investigating, to

include matters involving charges of misconduct by state officials.

4.

Judge Weills Order sealing Cause No. 16-120 prevents Smith having access to this

exculpatory evidence. Under familiar principles, a criminal defendant is entitled to all evidence that
is exculpatory. Brady v. Maryland, 373 U.S. 83, 87 (1983).
5.

This Courts should assign Cause No. 16-120 to Circuit Judge Larry Roberts, along

with all other cases in which wrongdoing by Smith is alleged.

6.

Circuit Judge Roberts has set a hearing for September 12, 2016 on a motion to unseal

files. It is in the interest of judicial efficiency for Judge Roberts to also consider whether the
proceedings in Cause No. 16-120 should be unsealed.
7.

Consistent with the due process clause of the United States Constitution, Amendment

Fourteen, and Mississippi Constitution, Section Fourteen, Circuit Judge Weill cannot act as a judge
in any case involving Robert Smith. Judge Weill is an adversarial party to Smith, since he is a
complainant in a pending bar complaint against Smith. See, Exhibit C. Additionally, Judge Weill
has entered an Order stripping Smith of his duties as District Attorney. See, Exhibit D. Because
of these adversarial proceedings, a fair minded person knowing all the facts might reasonably
question [Judge Weills] impartiality. Buchanan v. Buchanan, 587 So.2d 892, 897 (1991). A fair
trial in a fair tribunal is a basic requirement of due process . . . . [O]ur system of law has always
endeavored to prevent even the probability of unfairness. . . . [N]o man is permitted to try cases
where he has an interest in the outcome. In Re: Murchison, 349 U.S. 133, 136 (1955).
8.

Assistant Attorney Generals Baker and Anderson have advised they do not object to

Cause No. 16-120 being transferred to Judge Roberts.

ACCORDINGLY, Smith moves this Court to assign Hinds Circuit Court Cause No. 16-120
to Circuit Judge Larry Roberts.
Respectfully submitted this the 9th day of September, 2016.
ROBERT SMITH, Defendant

By:

/s/ JIM WAIDE

Jim Waide, MS Bar No. 6857
waide@waidelaw.com

WAIDE & ASSOCIATES, P.A.

332 North Spring Street
Tupelo, MS 38802-3955
Post Office Box 1357
Tupelo, MS 38802-1357
(662) 842-7324 / Telephone
(662) 842-8056 / Facsimile
ATTORNEYS FOR ROBERT SMITH

CERTIFICATE OF SERVICE
This will certify that undersigned counsel for Defendant has this day filed the above and
foregoing with the Clerk of the Court, emailed and mailed, via United States Postal System, a true
and correct copy to the following:
Assistant Attorney General Robert Anderson
P. O. Box 220
Jackson, Mississippi 39205
rande@ago.state.ms.us
Assistant Attorney General Larry Baker
P. O. Box 220
Jackson, Mississippi 39205
lbake@ago.state.ms.us
Senior Status Judge Larry E. Roberts
P.O. Box 1002
Meridian, Mississippi 39302-1002
Honorable Jeff Weill, Sr.
Circuit Court Judge
P O Box 22711
Jackson, MS 39225
weillslawclerk@co.hinds.ms.us
Honorable Tomie T. Green
Circuit Court Judge
P. O. Box 327
Jackson, MS 39205
SO CERTIFIED, this the 9th day of September, 2016.

/s/ JIM WAIDE

JIM WAIDE

E-Filed Document

Sep 9 2016 15:23:17

2016-AP-01079

Pages: 2

Serial: 20'756'1'

FlLED::
RE:D.ISTRICTJf.'J!TORNEY FQR:TJlE

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OFFICE OF:THECLE8.K
.SUPREME COUFfr

.CdURTOFAPPE/\L$

r.1-hs:1V:1AfiER is :before the:eourt,.,en,banc,:uporttequestl;iy::itl :cfrcuitdourt-J\1dgs

for the efrc.it <.;burt of Hinct~ (Sq11n1;y:; Missfssippi, 71h Czytjit Gourt D.is.tdct, for, Jh
appointtnentofa:Spe.ciaICircuitJud~ectoptesfde.ov:edhe'P.roceedmgslhtlre;above,numbeted

:ahd isfylecr a:U$S;. Whih are J)f~s~ntly peitqip:g iI1

me ~jf1:1,it Obu1t qf J-iip;q.$: Q9\fnfy;J

Mis!iissipp1,;J?irsf.Judicfalb.istrict.AlLGitcuitJudgeshave:recusedfathesubje.ctact10ns::Sertiot)

Sta,ms.Judgpa11:y"E:: E:ob#.$~.has ~gr'ed:to ~cb.~ptfl1e~~i\s's/ati4 sh@.pt~sfg.~~h4 cqriggt .

proc:eediirgs unti:1 such:timeas.tb:ese .casesarecCclnciuded. Thi.s,r.e~uest1s,necess1fateiL~ihe

tfavini?;Ju.ll)tconsidered thematforr the Court finds thattherequest is proper andsho.rild

lT'fS''PEEIIBFOREORDEREDANPAPJUD0EDithatRonorab.'/g. Earr)',E.. B,p'f?~ds;

:$eniorSt.:1t1.HiiJ<:ige~ b~., an:dhe is, hereby specially appoirttecfSp'ecia]Judgeto pieside:,anci
conduct proceedings .i11 fu.c; . apove.,rcefore1wed. CJ:\Ses}ursajitJo and .by a,uthority

EXHIBIT

6fN1I~sjss'ipp J'Ctjdi;}Aii1:1otated,:Secti911 9:..1-1 OS; whichishit~sthat',the Chie:f Jtistice may, wj,th .

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the advfoeand,.consent of amaj odty oftheJusticesof:theMississ{ppi: Supi::eroeCourt, aJ?,pOiht

a$pecial. rJ11dgi:
I'.t 18 FURTHER ()Rl)EREb that the Honorabfo._tarcy E. Roberts shall preside.:as

and/or adn:i'inistrative dulies ,of'Robert'Shuler 'Smith) ,the<Hfods County District Aitome,y~

p;erig}n.g gtsB~.~qeritlyfilecticludJng~ny;r:elat:~d,ctfrt1Wr,~l)fc::ti9ris,ui1tiffrpibef,@td&B9,f".t~~

ioi:the0Honorabie.Larry'E .. Roberts:; . Special Cfrctiit(Jud,~e;ithe:I:fonoraole Winston L. Kidi:t;the

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.G:'o.wan,Ji\,.Judges ofancl.fotth~Circui.t Q9urt:Qfl{inds CqJ1n~,:and,t9Jhe'Clerko.fth(;}'Qir:uit

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Tec.ordfo satd case,.

ihec$pecfaLJud~e:shallpr.omptly:f'orwaro':a~qp-y1Ttl.l~.tm<\lJiJ4wentso~. qt1;ierorciefs,,9~'fi;ii~l
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E-Filed Document

Sep 9 2016 15:23:17

2016-AP-01079
F8X NO. :601 969 0304

Pages: 3
Sep. 07 2016 02:35PM

FROM :ROBERT SHULER SMITH,PLLC.

----~----

ER *SEALED*

oocument #: 1

Filed: 09/07/2016

.-

SEP -7 2016

~ICTMENT

:.

CONSPIRACY

MCA

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FILED

- 25C\1 16-cr00836-L

case-

1-1aye

97 l 1 Counts I and U
- - 2 (C mmu11 Plnn o"!." SC;he:mi.e)

MULTI-COUNT MCA 99...7o

DISTRICT ATTORNEYL~O~CA 97-11-3 .. Count III
TO ADVISE CRlMINA

ZACKWAAC~~

B~~
zrl

-STATE OF MISSISS1PPI .

CJRCUlT COURT
FIRST JUDICIAL DISTRICT

HINDS COUNTY

Cause Number:

/6-.(336

September Term. A.D.12016

The Grand Jurors f~r the State of Mississippi, taken from the body of good and lawful

impaneledj
. ds county., p1rst Judicial District, in the State of Mississippi, elected,
persons of Hm
.

sworn and cbarged. .to .inquire in and for said Courity and State aforesaid, in the name and by the
authority of the State of Mississippi, upon their oaths present:

COUNT!
that. ROBERT SHULER SMITH nnd JAMIE K. MeRRIDE,

in the First Judicial District of

Hinds County, Missi~sippi on or about and between the dates of December 1, 2015, and June 22,
2016, did then and there knowingly, unlawfully and folonioualy, without authority of law,

conspire with Ivon Johnson and with others known and unknown to the Grand Jury to commit
,,,

the crime of Hindering Prosecution in the First Degree in violation of 97~9-IOS of the

Miss~ssippi Code, 1972, as amended, by conspiring to hinder the prosecution) conviction and
punishment of Cbristonher Butler fo Hinn~ Connty CaU$e Nutllberc 12 ~52 ond 12-83

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violation of 97.. 1.. 1 and 97-9-105 of the MississippiCode, 1972, as amen

de.d an.d. .
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- FROM

FRX NO.

:ROBERT SHULER SMITH,PLLC.

.

Sep. 07 2016 02:35PM

:601 969 0304

Filed: 09/07/~Ulb

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pocurnent #: 1

LED*
c.:i~e: 2sc11:16-cr-00836-LER *SEA

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d Ian in the First Judicial District offlinds County,

that as part of a common scheme an P '

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.b t d b~tween the dates of December 1. 2015, and June 22, 2016,
Miss1ss1pp1 on or a ou an
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known and uoknown to the Grand JutY to commi

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.r ., ._ 97-9-- lO..( .-.f'th.e M,~!"lis~hmi Code. 1972, as run.ended, by conspiring to
Degre~ 111

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ction and punishment of Christopher Butler in Hinds County Cause

hinder the prosecution. conv1

Numbers lo-:SO and 16Z75. ln. violatio~ of. 97-l.-1 m-id 97-9-l~'i nfthe Mississippi Code.

1972,asam.ended,and

COUNTID
as pa.rt of a common scheme and plan, in Hinds Cbunty, Mississippi on or about and between
Ts;nms:irv 1 ~ ?01 t. Ann .TnnP. ?.?. ?.01 n. ROR'F.RT SHI TT .F.R

SMT"rH. whTlP- ~u~tlnc:r 1n hi ..:: rutn.A~ftv

as District
Attomey for the Seventh Circuit Court District, Hinds Cowity, Mississippi,
did
.
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wilfully and unlawfully consult, advise and counsel defendant Christopher Butler, who was then
and there a defendant charged with a crime in the Seventh Circuit Conrt District, Hinds County,

Mississippi, by meeting with Christopher Butler at the Hinds County Jail outside the presence of
Butler's attorney, by later advising Butler's attorney in various ways to attack the State's pe.ing
case against Butler~ and by other means seeking the release of Butler from jail in violation of-
97-11~3 ofthe Mississirr Code] as

rulftirii

oontrru'y to the orn".l o-tthe :o.1-... t-i,rr:e lu such c2Ses ni:ade and pi:ovidcd, and Q.gaiu:it. thv pi:::we.and .,
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dignity of the State. of Mississippi.

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E-Filed Document

Sep 9 2016 15:23:17

2016-AP-01079

Pages: 2

JEFF WEILL, SR.

HINDS COUNTY COURTHOUSE
P.O. BOX 22711
JACKSON, MISSISSIPPI 39225-2711

601 -968-6661
601-973-554 I FAX

CIRCUIT JUDGE
7TH CIRCUIT COURT DISTRICT
COUNTY. OF HINDS

JWEILL@CO.HlNDS.MS.us

June 16, 2016

The Mississippi Bar
Attn: Honorable Adam Kilgore
Post Office Box 2168
Jackson, Mississippi 39225-2168
Re:.Attomey Robert Shuler Smith
Dear Mr. Kilgore:
Pursuant to our phone conv'ersation a fow weeks ago, enclosed please find supporting
documentation concerning violations of Mississippi law and the Mississippi Rules of
Professional Conduct by Hinds County District Attorney Robert Shuler Smith. Pursuant to Miss.
Code Ann. 97-11-3, a district attorney who "shall, in any manner, consult, advise, counsel, or
defend, within this state, a person charged with a crime or misdemeanor or the breach of a penal
statute, he shall, on conviction, be fined in a sum not exceeding five hundred dollars, be removed
from office, and rendered incapable thereafter of filling any office of profit or honor in this
state." Id. One of Mr. Smith's former clients from his private practice, Donald Turner, was
recently indicted by the Mississippi Office of the Attorney General. During a sealed hearing,
Smith admitted to a conflict of interest and stated no objection to the case being investigated by
the Attorney General. Thereafter, the Hinds County Grand Jury returned two separate
indictments against Turner, which remain pending as Hinds County cause numbers 16-0-238 and
16-0-239. Recently, on June 10, 2016, Turner's counsel, Mr. Dennis Sweet, filed two motions
on Turner's behalf, which attached confidential e-mails regarding issues of grand jury secrecy,
which were printed from Mr. Smith's county email account, as is evident from the header of the
e-mails, a clear violation of Miss. Code Ann. 97~11-3. The motions and exhibits are attached
hereto as "Exhibit A."

In another matter, on May 11, 2016, Mr. Smith appeared in my chambers area at the
courthouse, where access is restricted to my staff members and the staff of Judge Winston Kidd.
Mr. Smith was not authorized to be in the restricted area, and after my clerk answered a loud
banging on her door, she opened the door to Mr. Smith, several DA staff members, an armed DA
investigator, and a WJTV news crew. He was seeking the immediate return the cell phone of his
administrative assistant which was taken up earlier that day by my bailiff after it rang during the
closing argument of a capital murder trial. Mr. Smith was instructed to leave the area several
times by my clerk, and then by me, but he continued to refuse. W JTV did not air the footage of
the incident and declined to provide a copy upon request. However, they agreed to preserve the
footage, and I urge you to request the same to aid your investigation.

EXHIBIT

Subsequently on May 11, 2016, Mr. Smith sent two threatening text messages to my
personal cell phone regarding the actions taken by my bailiff earlier that day. Copies of those.
text messages are attached hereto as "Exhibit B."
"A judge who receives information indicating a substantial likelihood that a lawyer has
committed a violation of the Rules of Professional Conduct should take appropriate action. A
judge having knowledge that a lawyer has committed a violation of the R11les of Professional
Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as
a lawyer in other respects shall inform the appropriate authority." Canon 3(D)(2), Mississippi
Code of Judicial Conduct. Please take whatever steps on behalf of the
you feel are necessary
for these rule violations. Again, I felt compelled, pursuant to Canon 3(D)K2), to bring this to your
attention, particularly due to the ongoing nature of the conduct. Please feel free to contact me
should further information be required. Thank you.

bar

Very truly yours,

~tJffJ
Jeff Weill, Sr.
Enclosures

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Sep 9 2016 15:23:17

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IN THE CIRCUIT COURT OF THE FI~T JUDICIAL DISTRICT

HINDS COUNTY, MISSISSIPPI

IN RE: HlNDS COUNTY DISTRIF

I L E D

ATTORNEY

JUN 23a.AliLACTIONNO.

14- root/-

ZACK WALLACE, ORCULTCLERK

.C.

ADMINISTRATIVE ORDER OF IMMEDIATE TEMPORARY DISQUALIFICATION

OF THE B.INI)S COUNTY DISTRICT ATTORNEY1

BEFORE THE COURT is the unfortunate fact that the Hinds County District Attorney
has been arrested for criminal charges. Given the fact that the charges allege serious incidents of
improper, unlawful and unethical use of the Office of the Hinds County District Attorney by the
district attorney himself and considering that the charges relate to pending cases and to actions
before the Hinds County Grand Jury including improperly "using the power of the grand jury to
_pressure" judicial action the Court finds that the interests of justice require as follows:
While the district attorney, and all citizens> are eotit~ed to the presumption of innocence,
the district attorney's status as a public official and the undersigned's duty to uphold the
independence and integrity of the judicial system requir~s the administrative action ordered

herein. The district attorney faces at least six separate cfimtnai-charges-alleging"iliipfoper use of
his office. Thus, the undersigned finds that pending final resolution of those charges, temporary

administrative actions are necessary in light of the specific nature of the allegations against the
district attorney and based upon the documentation filed in support thereof. See June 22, 2016

Affidavit and Warrant, 25C01:16-cr-624. Pursuant to Miss. Code Ann. 97-11-3, Mississippi
'

law provides,that a district attorney shall not Hin any manner, consult, advise, counsel, or defend,
~,..

.ili~fj
Per Miss. Code Ann. 25-31-21: "It: at the time of impaneling the grand jury in any circuit cburt, the district
attorney be absent or unable to perform his duties or, if after impaneling of the grand jury, the district attorney be .
absent or unable to perform his duties or be disquallfied, the court shall forthwith appoint some attorney at law to act
for the state in the place of the district attorney during his absence or inability or disqualification, and the person
appointed shall have the power to discharge all the duties of the office during the absence or inability or
disqualification of the district attorney "
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EXHIBIT

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within I.his state, a person charged with a crime or misden;ieanor or the breach of a penal statute."

Miss. Code Ann. 97-11-3. If convicted of consulting with a criminal defendant, a district
attorney shall be filed and "removed from office." Id. (emphasis added). In Mississippi, district
attorneys are elected officials who serveas the chief criminal prosecutor and public officer of
their respective judicial districts. Mississippi law prescribes the duties of the district attorney to

"represent the state in all matters coming before the grand juries of the counties within his
disttict and to appear in the circuit courts and prosecute for the state in his district all criminal

prosecutions and all civil cases in which the state or any county within hls district may be
interested," :tvfiss. Code. Ann. 25-31-11.
District attorneys, as public officers, are also su];,ject to the Section 175 of the Mississippi
Constitution, which provides: "All public officers, for willful neglect of duty or misdemeanor in

office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall
be removed from office, and otherwise punished as may be prescribed by law.'' Miss. Const
175. Just as the district attorney is liable for any willful neglect of a duty ofhis office: so are
circuit judges who willfully neglect the judicial office, including difficult judicial administrative
responsibilities. See Canon 3(C), Mississippi Code ofJudicial Conduct (A judge shall diligently

discharge adn1iI1i.strative responsibilities <'without bias or prejudice and maintain professional

competence in judicial administration .. ~"). Based upon the nature of the criminal charges
against the Hinds County District Attorney, which involve alleged abuses and neglect of duties

of the public office of district attorney such as consulting and aiding criminal defendants with
current pending indictments in Hinds County, the Court finds it necessary to issue a finding that
Hinds County District Attorney Robert Shuler Smith is hereby disqualified from participating in
the prosecution of any criminal case oi: proceeding on the undersigned's docket. 2 Given the
serious implications that ~e charges have upon the office of the Hinds County District Attorney
2

The undersigned does not intend, in any manner, to extend this ruling to the dockets of any other Hinds County

Circuit Judge.

2,

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as a whole, this Court finds that temporary r~medial actiop. is necessary in order to ensure that
the integrity of the undersigned's extensiye criminal docket is not co~promised. This order of
disqualification is issued pursuant to

Ci:!):l.Oll

3 of the Code ofJudicial Conduct governing judicial

administrative responsibilities, an~ it is a temporary finding of disqualification, pending the

outcome of the criminal charges pending against the district attorney.
Grand juries co~duct lawful .criminal investigations and issue felony indictments upon
finding a true bill. When the indictment js returned to and received by the circuit court, the court
acquires jurisdiction of the particular case, and the "functions and powers of the grand jury as to
the indictment so returned are ended . , ." Fields v. Staie, 25 So. 726, 727 (Ala. ~899). The
indictment then becomes a pending case on the court's docket, and the court has the inherent
power and duty to control, manage, and dispose of the case. Mitchell v. Parker, 804 So.2d I 066,
1072 (Miss.App.2001) ("A trial court has inherent power to manage its docket and protect the

integrity ofthejudicialprocess."; Harrington v. State, 336 So.2d 721,724 (Miss. 1976) ("The
trial judge, not the district attorney, has control of the docket."). In a sincere effort to ''protect

the integrity of the judicial process" from any additional perceived impropriety, in concert with
the aforementioned finding related to criminal proceedings before the undersigned, this Court
further fmds that the Hinds County District Attorney Robert Shuler Smith shall be temporarily
disqualified from any and all participation, either directly or indirectly, in any grand jury
proceedings in Hinds County.
This additional temporary disqualification is made necessary by two central facts. First,

the state constitutional provision cited herein provides tha! the District Attorney may be
presented to the grand jury concerning his actions and inactions in office, creating an
unavoidable conflict of interest between the District Attorney and the grand jury. Second and
even more significantly, sealed proceedings in Cause Nos. 251-16-26 and more recently in 25116-355 and 251- 16-543) support this finding disqualifying the district attorney from all
3

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proceedings and decisions regarding the grand jury. Based upon the extensive findings of a
sealed report by Special Master Amy Vlhitten and a Sealed Order of Senior Circuit Judge Tomie
Green, the district attorney has been engaged in improper use and abuse of the sacred grand jury

process. 3 Despite a clear ruling requiring regularity in the grand jury process, 4the improprieties
have continued very r.ecently, according to sealed filings submitted.earlier this week. The
undersigned simply cannot ignore the fact that the district attorney is taking actions consistently
contrary to the sacrosanct legal purpose of the grand jury. Accordingly, the undersigned finds

it necessary, under these unusually exigent circumstances, to disqualify the district

attorney from all participation and lmowledge in the grand jury process. This includes a
prohibition from participation by proxy through directing any district attorney staff

members. Due to the very confidential nature of the grand jury process, participation by the
district attorney while facing charges of consulting with indicted defendants, would further erode
the public's confidence in the system of justice and would protect the district attorney from any
additional accusations related to grand jury improprieties. The district attorney's participation in
the grand.jury while this conflict of interest exists would risk taint and invalidation of any proper
a;t made by the grand jury and further jeopiclize the secrecy of the proceedings.5
Importantly, district attorney staff members are not disqualified by this Order~ either

concerning pending cases on the undersigned>s docket or concerning grand jury matters, unless
3

"(P]ublic disclosure of matters presented to the grand jury is an issue of great concern and actions contrary to the
strict secrecy requirements [raise] serious ethical questions." Ex Parte Jones County Grand Jury, First Judicial
Dist. v. Pacific, 705 So.2d 1308, 1315 (Miss. 1997); See also URCCC 7.04; Miss. Code Ann. 97-9~53.
4

The district attorney elected not to seek appellate review of the sealed order, which clearly defined and upheld the
proper function and role of the grandjury. Accordingly, he has continued to act affirmatively and inconsistently
with that fint:11 order despite being legally bound by the ruling.

On June 22, 2016, just hours bis arrest, the di;trict attorney issued a press release wherein he improperly divulged
the identity ofa witness whom he clalms was subpoenaed to testify before the grandjUI)'. This unlawful public
disclosure further supports the temporary action taken by the court herein. Finally, the court notes that statutory
authority exists for the grand jury to be discharged at any time, in the court's discretion. Rather than ordering a
discharge (which would prevent the grand jury for conducting legitimate business related to the Hinds County
criminal justice system), the undersigned found It less disruptive to the defendants who have been bound over to the
grMdjury for presentation of indictment to simply enter this temporary disqualification of the district attorney to
protect the integrity ofthe pr9cess.

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their actions are taken in concert or at the behest of the district attorney. However, the assistant
district attorneys are specifically cautioned that any grand jury action or proceeding must relate
to a lawful grand jury investigation and not made to serve in retaliation, in any manner, for the
district attorney's recent criminal charges and arrest. "Grand juries are not licensed t-0 engage in
arbitrary fishing expeditions, nor ~ay they select targets of investigation out of malice or an
intent to harass." U.S. v. R. Enterprises, Inc., 111 S.Ct.122, 727 (1991).

IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED that the.Hinds

County District Attorney is hereby disqualified per Miss Code Ann. 25-31-25, as ordered herein.
Though the disqualification does not extend to district attorney staff members, the undersigned

wiU defer to Senior Circuit Judge Tomie Green as to whether the appointment of a temporaxy
acting district attorney per 25-31-25 is necessary.

IT IS FURTHER, HEREBY ORDERED AND ADJUDGED that the circuit clerk shall
publish. a copy of this Order to the District Attomey, all Assistant District Attorneys and staff
members via personal service and via email and a copy shall be placed on the door of the grand

jury room inunediately upon filing. The circuit clerk shall also provide a copy of the order to
each currently empaneled grand juror, either in person if in session or via mail if discharged, and
file a certification con:funting the personal service of the district attorney and all district attorney
staff members and confirming service of each grand juror. Finally, the circuit clerk ~hall provide
a copy of this Order to the other circuit court judges and to the Hinds County Sheriff for
enforcement, particularly to the Court Bailiff currently attending the grand jury and to any other
Bailiff who the Sheriff designates. The circuit clerk may request assistance from the Hinds

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County Sheriff to safely and eff~ctively accomplish the personai ~erviqe_ ~equ-f}n;ients qrclered

herein. 6

@.
SO ORDERED AND ADJUDGED this the _zzday of June, 2016.

~cJ,tft/L
~

IRGUIT

GE

--

If the district attorney or any :stiiffmemb'er attempts to violate.this order of-the Court, the.Sheriff'shall take
imrrieaiate action to enforce.this order and the securityofthe courthouse including removing the district attorney
from the grand jury meeting room, if necessary,