Transcript of the Hickman Statement

In an earlier post regarding Sharrod Moore, I referenced a transcript that is attached to the "State's Response to Defendant's Motion to Compel" in the Sharrod Moore case. It has been discussed by at least one local media outlet as well. Seeing as it's public record, I'll pass it along.

***By posting the following PDF, I am not endorsing any of the allegations found therein, nor am I passing judgment on the credibility of what Mr. Hickman says. ***

"Ask your mayor."

The case of Sharrod Moore took a shocking turn yesterday. After having one of his assistants do the dirty work of dismissing the case against Mr. Moore, DA Robert Shuler Smith met with the media outside the courthouse and alleged that "certain officers and officials" engaged in a cover-up with respect to the killing of R.J. Washington. (WJTV story here; WLBT video here.)

This is not the first time DA Smith has alleged that a cover-up was hindering his investigation. He told the Jackson Free Press almost the same thing nearly one year ago. The key difference this time is Smith's use of the word officials when assigning blame.

I remember how odd the indictment of Sharrod Moore seemed at the time, back in January of 2008. Mayor Melton's appearance before the television cameras to announce the indictment felt weird enough, considering Melton was the mayor, not the District Attorney, police chief, sheriff, etc. Furthermore, Melton was so excited about the indictment that he held the press conference before Moore was in custody, a seeming violation of Section 99-7-9, which prohibits publicity of indictments when the indicted person is not in custody.

The bone-chilling moment came, though, when Moore was being escorted through the tunnel between the Hinds County Circuit Courthouse and the Downtown Detention Facility. When asked by one of the handful of reporters following him why he was being indicted now, Mr. Moore simply replied, "Ask your mayor."

As the case progressed, things became even more surreal. First, DA Smith met secretly on several occasions with accused capital murderer Stephan Hickman and took a sworn statement from him, all without the knowledge of Hickman's counsel. Then, DA Smith saw fit to release the transcript of the statement into the public record by attaching it to a motion. The transcript tells a wild, detailed story, in which Melton is the "Prince" of the Jackson drug trade, and Sharrod is the "Knight." Both are supposedly controlled by an unnamed figure called "the Pharoah." According to Hickman, Sharrod was to make quarterly payments to Melton. Hickman goes on to tell a version of events in which Melton, Moore, and Washington are engaged in, umm...inappropriate activities. According to Hickman, Melton ordered Moore to kill Washington so as to show Moore's loyalty to Melton.

Hickman's story has largely been proven false, at least with respect to the particulars of who was present at the time of the killing of R.J. Washington. But one has to wonder, to what extent, if any, is DA Smith now looking at the deceased Melton as a player in this ordeal? After all, the word "officials" is new, and connotes some person or persons other than JPD officers.

Weekend Zatapulse Survey

Zata 3 has released the results from its Zatapulse Survey taken on May 1, 2009:

Harvey Johnson 26%

Crisler 26%

Melton 18%

Horhn 11%

Fair 4%

Others 7%

Undecided 8%

The results from the Zata 3 and Clarion-Ledger polls are similar with respect to the order of candidate preference, and roughly speaking, the chasm between the top two "ABM" candidates and the rest. If these polls are anywhere near correct, the best chance to oust Mayor Melton in the first primary is to vote for either Harvey Johnson or Marshand Crisler on Tuesday. A vote for Horhn and Fair will decrease the results for the two leaders, and thereby give Mr. Melton a chance to catch up with one of them. In 25 years of casting votes here, I have learned that ANYTHING can happen in a second primary in Mississippi. We don't need to take that risk.

No Excuse for This Nonsense, Rep. Evans

In a post today on Y'all Politics, Alan Lange calls our attention to, and condemns, this print screed by Rep. Jim Evans regarding the upcoming Mayor's race:

Crisler and Horhn too costly for mayor

By Representative Jim Evans
April 30, 2009
Jackson Advocate

The Capitol Street Gang has decided who their new slaves will be for the May 5th Democratic primary. This gang, consisting of control-minded thugs like Leland Speed and Billy Mounger, as well as Dixie-rats (sic) like Kane Ditto and William Winter, have lined up behind the Minstrel Man, John Horhn, and that cartoon cop, better known as Marshand Crisler. The Capitol Street gang has invested over $600,000 in these two slaves to carry out the mission of turning the city over to them. . . . .

This low-down bunch of robber barrons [sic] and white supremacists cannot be given the keys to City Hall ever again. . . . .

The only thing standing in their way is a strong black person in the mayor’s office. A free person, a person that doesn’t act like a cuffe or a coon in front of the self-proclaimed elite. In order for Jackson to move ahead, we have to be in charge, not black folks that act as gatekeepers or yes-men to this evil power structure.

My two cents: I'm not sure which is worse: the racist diatribe against Sen. Horhn and Councilman Crisler, or the delusional notion that Kane Ditto or William Winter were or are "Dixie-rats" or "white supremacists." Note that this is a written, published piece that took time, effort and thought (if one can call it that), not a slip of the tongue at some heated campaign event or at a bar. Malice aforethought is presumed.

Make no mistake about it: this hit piece is part of a concerted strategy by the incumbent Mayor (Rep. Evans' wife is City Attorney) to blame Mayor Melton's problems on "The Man" and to suggest that the leading new faces for the job are "The Man's men." I have argued before that the Department of Justice's push to re-try Melton is fodder for this plan.

There is one way to repudiate this trash, and that's to throw the incumbent out.

Is the Good Ship Melton Taking on Water?

Is the Melton re-election campaign losing steam? It may be, based on recent polling results released by Brad Chism, President of Zata 3. Brad's latest surveyed 507 telephone voter households across seven wards. Here were the results:

April 24th Zatapulse Survey

Harvey Johnson 27%

Crisler 26%

Melton 19%

Hohrn 11%

Fair 3%

Other Candidates 7%

Undecided 7%

Brad reminds us about the parameters of this poll:

Why we are doing this: We have several friends in the Jackson Mayor’s race but no candidates who are clients. We are intrigued by the dynamics of this race and have decided to do some survey work for public dissemination.

About the survey. This sample of 500+ voter phone households is a rough approximation of historical voter registration and turnout. While we do track the respondents self-identification by age, race, and gender we have not weighted the survey by these demographics or by voter frequency. . . . .

Methodology We used an interactive, automated call with keypad responses to record results. The numbers are scrambled and randomly dialed with a quota of respondents by ward. As the name suggests, our ZATAPULSE takes the pulse of the electorate. It is not an “MRI”. It is a useful tool for short surveys of this nature and we have used it for more than 200 races across the country. We employ a similar methodology as Survey USA or Rasmussen. Still, the tool has limits. We caution you that this race is fluid and that each candidate is likely to have a more robust, internal poll. Nonetheless, we are confident that this is the most accurate, timely information that is publicly available.

About Zata3 Zata3 is a political consulting firm for Democratic candidates and progressive causes. Company President Brad Chism splits time between his Washington, DC and Jackson, MS offices. For each of the last three years, Zata3 had won more awards by the AAPC for its telephone voter contact programs than any other firm in America. For more information, go to www.zata3.com

My two cents: Let's see what happens when the Federal trial kicks back into gear. Will it create pro-Melton backlash?

Jackson's Groundhog Election Day? Opinion Poll By Neutral Consultant Shows H. Johnson, Crisler, and Horhn chasing Mayor Melton for Lead

My friend Brad Chism, President of the political consulting firm Zata3, has just released the results of a 500+ person poll in the Jackson mayoral race. Brad says that:

"We have several friends in the Jackson Mayor’s race but no candidates who are clients. We are intrigued by the dynamics of this race and have decided to do some survey work for public dissemination.

Wednesday night we conducted a random sample survey of 500 Jackson voter households. We asked about candidate preference and strength of support."

The main results:


Melton is in first place with 27% of total respondents. 35% of his supporters are "absolutely sure" they will vote for him.


H. Johnson is the lead challenger, with 20% of the total. 21% of his supporters are "absolutely sure."


Crisler is in a close third with 18% of total. 13% of his supporters are "absolutely sure."

Horhn is at a surprising 6%, with only 5% of his supporters saying they are "absolutely sure" they will vote for him.

Fair is right behind Horhn with 5% of the total; 6% of his supporters are "absolutely sure."

All Others split 11% of the total; 12% were undecided.


Brad gives us some brief observations:


"The race is very fluid. Based on this work and other surveys we have seen, at least four people are seriously in contention for the runoff."

"As Jere Nash observed recently, Frank Melton’s trial and the flap over his residency may have boosted his numbers considerably. (This survey occurred on Wednesday-- Melton hired a new police chief that day) ." Note: this is a point that several of us have already made. See http://jimcraigsworld.blogspot.com/2009/03/return-to-never-neverland.html


Brad continues:


"If the election were today, Melton would almost certainly be in the runoff. A rematch from 4 years ago is not implausible.


This will all change a lot when the candidates go up on TV and radio and hit the streets with canvassers.


Again, this is all fluid. For example, a few minutes ago Crisler got McMillan’s endorsement and we understand that fundraising is beginning to pick up for Crisler, Hohrn and Johnson.


About the survey. This sample of 500 voter phone households includes 70 completed surveys in Ward 1 and 65 in each of the other wards. This is a rough approximation of historical voter registration and turnout. We have not weighted the survey by voter frequency, gender or age. The pivot tables in the attached chart may be manipulated to see ward-by-ward results. We caution you not to draw too many conclusions by ward as these sample sizes are small. You can also adjust the pivot tables to see survey results by race.

Methodology. We used an interactive, automated call with keypad responses to record results. As the name suggests, our ZATAPULSE takes the pulse of the electorate. It is not an “MRI”. It is a useful tool for short surveys of this nature and has been used in more than 200 races across the country. We employ the same methodology as Survey USA or Rasmussen. Still, the tool has limits. We caution you that this race is very fluid and that each candidate is likely to have a more robust, internal poll. Nonetheless, we are confident that this is the most accurate, timely information that is publicly available.

About Zata3. Zata3 is a political consulting firm for Democratic candidates and progressive causes. Company President Brad Chism splits time between his Washington, DC and Jackson, MS offices. For each of the last three years, Zata3 had won more awards by the AAPC for its telephone voter contact programs than any other firm in America.

For more information, go to www.zata3.com"


The Takeaway Point From the Survey: So if the election were held today, the Democratic runoff would be between Mayor Melton and former Mayor Johnson. A "Groundhog Day" election . . . which Jackson may be doomed to repeat again and again?

Return to Never-Neverland

Just back from a weekend in Berkeley, and the Bold New City aka City of Hospitality is abuzz with the news that Mayor Frank Melt-down does NOT live here! Wow. Maybe I dreamed the last four years??

This being the topic du jour, it gives me the opportunity to connect my World to the new home of NMC (former folo blogger), which is, appropriately, http://nmisscommentor.com.

NMC REALLY does NOT live in Jack-in-the-Box-Town. He has, nevertheless, collected a group of stories on the latest Melt-down drama here: http://nmisscommentor.com/?p=205

My two cents on the Case of the Non-Resident Mayor: If we don't watch out, there's going to be a backlash against the actions of the Feckless Federales and the "See No Melton, Hear No Melton, Speak No Melton" Democratic Committee. The crime-beleaguered citizens of West Jackson may decide that His Frankness is trying his best, and that they won't let The Man take their choices away from them.

Why not just let the Mayor run for re-election, make every effort to defeat him, and take care of business that way? The Federal trial can always be scheduled for after the election.

Not Rocket Science: the Intent Element in US v. Melton

As I write this, the jury in the case of United States of America v. Frank Melton et al. is in its third day of deliberations. This morning, the Clarion-Ledger ran a front-page analysis of the lengthy deliberations. In that story by Chris Joyner, the oft-quoted legal source Professor Matt Steffey of the Mississippi College School of Law opined that the delay may be due to the complexity of the intent element of the charges against Mayor Frank Melton and Officer Ricio. The Clarion-Ledger story is here:

http://www.clarionledger.com/article/20090220/NEWS/902200357

As Joyner writes:

Even if jurors agree Melton and his former police bodyguard Michael Recio violated the Constitution when they conducted a warrantless raid on a Virden Addition duplex in August 2006, Steffey said the jury has a complicated task in determining whether they did it criminally.
"It requires a complex judgment. There is more than one way to look at the defendants' conduct," he said. "The question of criminal intent is deeply complex."

Professor Steffey is a friend who has provided valuable assistance in several public interest cases I've handled over the years. But this time I think he's off the mark. Title 18, Section 241 of the U.S. Code prohibits:

[T]wo or more persons conspir[ing] to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment or any right or privilege so secured . . . .

I have emphasized the sentence about intent. In the post-Watergate era, the U.S. Court of Appeals for the District of Columbia Circuit discussed what that sentence means. The case was significant: the conviction of former Nixon White House aide John Ehrlichman for conspiring to burglarize the office of Daniel Ellsberg's psychiatrist, after Ellsberg published the "Pentagon Papers."

Listen to Ehrlichman's argument: "Ehrlichman contends that he acted without the requisite “specific intent” to invade Dr. Fielding's Fourth Amendment rights, since he agreed to a search of the doctor's office in the good faith belief that it would involve no violation of the law, constitutional or otherwise."

Sound familiar?? That comes straight from the part of "Frost v. Nixon" where the former President, pressed by David Frost about whether the President can authorize illegal acts, blurts in response, "I'm saying that if the President authorized the act, it's not illegal!"

Here's how the Court of Appeals answered the question.

(t)he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. Here, defendants are alleged to have intended to search Dr. Fielding's office without a warrant, and their mistaken belief that such conduct did not offend the Constitution would not protect them from prosecution.

United States v. Ehrlichman, 546 F.2d 910, 918 (D.C. Cir. 1976).

The years may dull the memory, but as I recall President Nixon and his Administration believed that Ellsberg's publication of the "Pentagon Papers" put the American troops in Vietnam in jeopardy and was therefore treasonous. Unlike Watergate itself, there was certainly a potential argument that the President, as commander-in-chief, did have the power to authorize the break-in of Ellsberg's psychiatrist's office to discredit the source of the leak and thereby cause the Viet Cong and their supporters not to rely on the published Papers. (I'm sure Dick Cheney would have agreed with that analysis).

It's certainly more weighty than the Mayor's stated purpose for demolishing the house on Ridgeway.

But it wasn't enough, said the Court of Appeals.

As applied to today's case, the only question is: was the Mayor's aim "not to enforce local law but to deprive a citizen of a right protected by the Constitution,"

or, put a slightly different way in the Ehrlichman case,

Did the Mayor engage in the "knowing performance of acts which, like the unauthorized entry and search at issue here, are malum in se." (that is, "bad" by definition).

That's NOT a very complex question.

A Startling Admission in the Melton Trial

Have we endured so many public integrity trials in Mississippi that we've lost our perspective? Consider John Reeves' opening statement, given at the beginning of the defense case in United States v. Melton. According to the Clarion-Ledger's story, Reeves said:

"A violation of the constitution, by itself, is not a crime."

The Clarion-Ledger story is here: http://www.clarionledger.com/article/20090218/NEWS/902180353/1002/news01

Is that really such a great argument? It's a head-spinner for me to hear the spokesman for a public official admitting that the official violated the Constitution but without "bad purpose." An intent to violate the Constitution IS "bad purpose." The ends, however expedient or worthy, don't justify the means. And in this case, it's not at all clear that the ends were either. Looks like a public official on a power trip to me.

The Question NOT Asked in Yesterday's Session of US v Melton

The Clarion-Ledger reports that the Federal prosecutors called various witnesses yesterday to establish that Defendants Frank Melton and Michael Recio knew that the Constitution and State law required court authorization before a house could be demolished. The full story is here: http://www.clarionledger.com/article/20090212/NEWS/902120343/-1/frontpagetabmodule-1V

With respect to Officer Recio, the C-L describes this testimony:

Federal prosecutors called on Recio's former police academy instructor, John Kelley, to explain to jurors the depth of constitutional law he taught Recio during a 1992 class. Kelley is a retired FBI agent and was a guest instructor at the Mississippi Law Enforcement Officers' Training Academy in Pearl.

Kelley looked directly at the jury as he explained that his class put a special emphasis on Fourth Amendment rights and the need for search warrants. At times, images of his course syllabus were projected on a large screen for support.

* * * *
Recio's attorney, Cynthia Stewart, asked Kelley if he would be proud to know that Recio listened to his teachings and did not enter the duplex that night. Prosecutors objected, and Kelley did not have to answer the question.

With all due respect (as we say in the law biz), I think if I were Recio's attorney, I would have asked Kelley: "What grade did Mr. Recio get in your class?" To be blunt, the impression I have is that if this guy is a rocket scientist, he's working on deep undercover.

The Difference a Choice of Words Makes

The Jackson Free Press, the ever-vigilant watchdog during the Melton Administration, tells us about a critical issue raised toward the end of jury selection today in United States District Court. The story is here: http://www.jacksonfreepress.com/index.php/site/comments/jordan_expected_to_select_jury_today_in_melton_trial/

As the JFP relates:

In today’s proceedings, defense attorneys and prosecutors questioned the final potential jurors and clashed over the use of the term “bad purpose.” Cynthia Stewart, Recio’s attorney, used the term during her line of questioning, in describing to potential jurors what constitutes a “willful” act. Jurors must decide whether or not Melton and Recio acted “willfully” in depriving Ridgeway duplex resident Evans Welch and owner Jennifer Sutton of their Constitutional rights. Federal prosecutor Mark Blumberg objected to the term “bad purpose.”

“My ruling said that the instructions on this law will have to define the term ‘willful’ as a conscious intent to do wrong and deprive a right protected by the Constitution,” Jordan said. “What I am hearing is that the two sides have a different concept as to what a conscious purpose to do wrong means.”

The Clarion-Ledger story is here:
http://www.clarionledger.com/apps/pbcs.dll/article?AID=200990206017

The C-L adds this point:

Quoting 5th U.S. Circuit Court of Appeals precedent, Blumberg said jurors must decide whether Melton and his former bodyguard, Michael Recio, acted "voluntarily and purposefully" in violating the law. Defense attorney Cynthia Stewart said the language should be limited to whether the defendants acted with "bad purpose."

Stewart said she would ask for a mistrial or a delay if Jordan changed his ruling at such a late date. Jordan said he believed his ruling was broadly worded enough to proceed with jury selection, but both sides indicated the precise wording to jurors in how to define the actions of the mayor and his bodyguard is central to their cases.

This is no small matter. Recall that in the State Court trial over the same incident, the jury was instructed that it had to find that Mayor Melton acted "with evil intent" in order to be convicted. Those words gave attorneys Dale Danks, Jr., and Merrida Coxwell the chance to defend the case on the basis of the Mayor's desire to stop crime in Jackson.

Cynthia Stewart and John Reeves obviously want to use the same defense in the Federal case, and the comments made by prospective jurors indicate they would be sympathetic to it.

But if the jury only has to find that the Mayor acted "wilfully," with a "conscious purpose to do wrong and deprive a right protected by the Constitution," evidence that "Melton wants to do right, he just got carried away" might not even be admissible.

The ultimate question, though, is why "conscious purpose to do wrong" would be in the instruction. If the Federal agents doing post-9/11 surveillance had no "purpose to do wrong," (because, like Vice President Cheney, they thought extra-legal measures were needed to stop terrorism), but knew they were depriving Constitutional rights, isn't that enough to convict?

The instruction should allow the jury to convict if they find the Mayor acted "willfully, with a conscious purpose to deprive a right protected by the Constitution."