Archive for January, 2011

Court of Appeals 1/11/11

Posted in Uncategorized on January 13, 2011 by tobywelchlaw

AMY MARIE LENARD v. STATE OF MISSISSIPPI

A very strange case.  Lenard was convicted of felony child deprivation.  It sounds horrible.  The facts are confusing as to what, if any, crime she committed.  On October 26, 2007 Lenard served as a fill-in for Stephanie Havens at David Walker’s law office in Batesville.  She asked Shannon Caine, her friend and former boyfriend, to babysit her son Aaron while she was at work.  Late in the day, Caine called Lenard to tell her that Aaron had been burned by hot water.  He said he had been running a bath for Aaron when the phone rang and he got distracted and Aaron had gotten in the tub and burned himself.  Caine brought the baby to Lenard where she comforted him.  Shannon’s mother testified that she saw the baby’s neck and it was red and he was fussy.  The next day, Oct. 28, Mrs. Caine saw the child and he was playing normally with his brother.  An investigator at Walker’s law firm testified that he saw the child and during the time period and he appeared to be playful and not in real pain.

Other witnesses then testified that they say the boy and between Oct. 27 and Oct 29 and his back appeared sunburned but the boy appeared to be ok.  Ms. Havens testified that she saw Aaron’s back and it appeared to be sunburned and she suggested that some salve be put on the boy’s back.  Lenard put something called Burn Gel Plus on Aaron’s back on Oct. 30 and the following morning Lenard said that the baby’s back appeared different.  Lenard brought the child to work and there others examined him and his back appeared to be severely burned, it had blistered, and then Lenard took Aaron to Tri-Lakes Medical Center in Oxford.  There the police were called and the child was taken to the burn center at Le Bonheur Children’s hospital in Memphis.  Lenard and Caine were subsequently indicted for felony child deprivation.  During the trial three experts testified, a child abuse specialist, a treating doctor and a pharmacist.  The doctor stated that the skin would begin to blister in one to three days.  The pharmacist testified that the gel caused a chemical burn that aggravated the injury and contributed to the damage in the photographs.  The jury convicted her.

The Court of Appeals reversed the conviction based on the trial court’s refusal to grant the defense’s proposed instructions as to culpable negligence and “mistake-of-fact”. I can’t seem to understand what crime was committed.  If the testimony showed that the child was ok with a sunburned back, and after applying the gel three days later the blisters appeared, again after the gel is applied,  and Lenard took the child to the hospital the same day, what deprivation was there?  If a child is taken to the doctor when a problem appears, how can that be deprivation?

NATHAN SELLERS V. STATE OF MISSISSIPPI

I don’t usually write about PCR’s but this one contains some scary facts.  For lawyers.  Sellers was convicted of aggravated assault.  He hired Kevin Camp to defend him in the trial.  In the contract between Sellers and Camp, Camp clearly points out that the fee does not include any appeal to a higher court.  The Court of Appeals held that a criminal trial lawyer’s obligation to file a client’s appeal is part of their obligation as trial counsel.  It remains viable until the court gives the trial counsel leave to withdraw.  I don’t know if that means it is the trial counsel’s duty to perfect an appeal, should the client wish one, or if that means that a trial counsel has to perfect an appeal and then file the briefs and carry the appeal to its conclusion.  I hope it is not the latter.  To basically interfere with a contract, and have the appellate courts mandate that regardless of the agreement between two parties, a lawyer must do work for free, if necessary, seems to be unjust.  If a lawyer’s duty is to handle an appeal through completion, does it terminate when the Court of Appeals rules?  Does a lawyer then have to file a motion for reconsideration?  A petition for writ of certiorari to the Mississippi Supreme Court?  The U.S. Supreme Court?  Where does the duty end?  If the Court of Appeals means that a lawyer must perfect an appeal, that I agree with.  I will be curious to see what, if anything, is written further about this.

Advertisements

Supreme Court 1/6/11

Posted in Uncategorized on January 13, 2011 by tobywelchlaw

EMERSON OSBORNE a/k/a EMMERSON OSBORNEv.STATE OF MISSISSIPPI

Osborne was convicted of capital murder and was sentenced to life without parole.  The Court affirmed his conviction.  The major issue raised, and the reason Justices Kitchens Graves and Dickinson dissented, was the failure of the trial court to declare a mistrial based on a sitting juror making inappropriate comments during voir dire. During jury selection, Juror Hull testified that he wanted to  know if he was going to sit on the jury rather than just sit around and wait.  Another potential jury member, Pitts, remarked that “I wish we would just hang him and get it over with and get out of here.”  Pitts was subsequently sat on the jury.  When brought to the trial court’s attention, Pitts was questioned and didn’t remember making the statement and she confirmed her impartiality.  The trial court deemed her remark ambivalent and merely a poor choice of words indicating a desire to avoid jury duty, like many others.  The trial court denied the motion for mistrial and the majority held that the trial court was in best position to determine if the jury was impartial and as such found the issue without merit.   I don’t know how her comment could be considered ambivalent.  In any trial, but a capital murder trial especially, jurors being impartial is crucial.  I wonder if the court would have reached a different decision if the jury had sentenced Osborne to death.