Mississippi high court orders judge and PD to 'make nice'
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A Mississippi judge who surmised an assistant public defender was incompetent and kicked her office off of 55 cases exceeded his legal authority, the Mississippi Supreme Court has ruled.
The en banc court cited state statute, which provides for the appointment of public defenders to represent indigent defendants and allows for removal when there is a conflict or “good cause shown.” Absent a finding of incompetence through the bar complaint process, Judge Jeff Weill Sr. of Hinds County has no authority to deny assistant public defender Alison Kelly the right to practice law before him, the court said.
The Clarion-Ledger covered the May 20 order (PDF), which also denied a bid by the public defender’s office for Weill’s recusal in the 55 cases, though it noted individual recusal motions may be made. The court also said defendants in the 55 cases should be given the choice of continuing with appointed lawyers assigned by Weill or being represented by the public defender’s office.
Though most of Weill’s allegations centered on competence, he also alleged that Kelly had engaged in several instances of sanctionable conduct, entitling him to remove her from all cases before him. Those instances are not sufficient to merit Kelly’s removal, the state supreme court concluded.
Though some of the incidents may have justified a sanction if properly developed, Weill did not hold any hearings and did not make any findings of contempt. And the incidents, if proven, did not justify Weill from removing Kelly from all future cases before him, the court said.
The court said it was making no finding on which party was more at fault. “While we find that the animosity and vitriol that exists between Judge Weill and Kelly currently to be at a fairly high level, we also not that the stress, pressure and aggressive atmosphere associated with criminal litigation often results in lawyers and judges skirting the line of appropriate conduct,” the court said.
Weill and Kelly have filed disciplinary complaints against each other, according to statements by three justices who would have unsealed documents in the case, with the exception of the bar complaints.
Justice James Kitchens argued that the court’s order was unrealistic and he would have ordered Weill’s recusal in all of Kelly’s cases.
“Today, a majority of the Mississippi Supreme Court tells a lawyer and a judge who have filed competing complaints against each other to return to the courtroom, together, and ‘make nice,’ ” Kitchens wrote. “Given the level of animus between the judge and the lawyer, which is evident from the filings before us, the majority’s approach to the dysfunctionality that this tempestuous clash has produced may amount to little more than wishful thinking on the court’s part.”
The lawyer who represented Kelly and the public defender’s office told the Clarion-Ledger he is pleased with the ruling. “Alison is a well-respected lawyer, who is dedicated to her job and to the constitution,” McDuff said. “Hopefully, the Supreme Court’s ruling will end this dispute and everyone can move on in a constructive manner.”
Related articles:
ABAJournal.com: “Judge holds 2 public defenders in contempt in dispute over representation of client”
ABAJournal.com: “PD’s office asks state’s top court to tell judge not to transfer cases to private counsel”
