Holmes County Circuit Court Judge Jannie Lewis has dismissed an extortion case against a Mississippi Highway Patrol Trooper.
According to this article in Sunday’s Clarion-Ledger,
A Holmes County judge has thrown out an extortion indictment against a Mississippi state trooper, saying the state never got an arrest warrant or held the required evidentiary hearing.
When a veteran state trooper was arrested on an extortion charge in 2008, he had not had a hearing to determine if there was enough evidence to charge him, as state law requires for sworn law enforcement officers.
Or, the state could have sought an arrest warrant in Holmes County Circuit Court for Sgt. Johnny Delaney of Cruger, said Holmes County Circuit Judge Jannie Lewis.
Because the state did neither, Lewis last week threw out the indictment against DeLaney and ruled he can’t be re-indicted.
“That the government’s failure to follow the requirements … deprived the defendant Johnny Delaney of his constitutionally protected rights under the Fifth and 14th Amendment of the United States Constitution,” the ruling states.
Delaney…had been on leave without pay pending the outcome of the legal case.
Lewis ruled he “suffered loss of liberty and property without due process in violation (of) the double jeopardy clause” of the state and federal constitutions.
Prosecutors, however, disagree with Lewis’ ruling.
“The ruling is being appealed,” Assistant District Attorney Steven Waldrup said.
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A Holmes County grand jury indicted Delaney in December for allegedly accepting money on Sept. 30, 2008, in exchange for dismissing a traffic citation.
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The normal procedure to charge someone with a crime goes like this: First, someone, either a law enforcement officer or civilian, will sign a sworn affidavit that alleges the individual committed a crime. Then, a judge will review the affidavit and, if the affidavit is sufficient, the judge will issue an arrest warrant. From there, the defendant will be arrested and the criminal process begins.
Under a relatively new Mississippi law, however, defendants in certain occupations have certain special procedural protections that the State must comply with before an arrest warrant may be issued.
Pursuant to Mississippi Code Annotated Section 99-3-28,
(1)(a) …[b]efore an arrest warrant may be issued against a teacher…jail officer…counselor at an adolescent offender program…or a sworn law enforcement officer…for a criminal act, whether misdemeanor or felony, which is alleged to have occurred while the teacher, jail officer, counselor at an adolescent offender program or law enforcement officer was in the performance of official duties, a probable cause hearing shall be held before a circuit court judge. The purpose of the hearing shall be to determine if adequate probable cause exists for the issuance of a warrant. All parties testifying in these proceedings shall do so under oath. The accused shall have the right to enter an appearance at the hearing, represented by legal counsel at his own expense, to hear the accusations and evidence against him; he may present evidence or testify in his own behalf.
(b) The authority receiving any such charge or complaint against a teacher, jail officer, counselor at an adolescent offender program or law enforcement officer shall immediately present same to the county prosecuting attorney having jurisdiction who shall immediately present the charge or complaint to a circuit judge in the judicial district where the action arose for disposition pursuant to this section.
(2) Nothing in this section shall prohibit the issuance of an arrest warrant by a circuit court judge upon presentation of probable cause, without the holding of a probable cause hearing, if adequate evidence is presented to satisfy the court that there is a significant risk that the accused will flee the court’s jurisdiction or that the accused poses a threat to the safety or well-being of the public.
The purpose of this law is to protect police/corrections officers, teachers and counselors from being arrested for baseless, and often retaliatory, criminal charges leveled against them for acts allegedly committed while on-the-job. Folks in these occupations are particularly vulnerable to false allegations. The law requires a probable cause hearing before a circuit judge, so the Court can prevent arrest warrants from being issued based upon unsupported (and often perjured) allegations of criminal conduct.
The law on this issue is crystal clear. The County Prosecutor was required to present the case to the Court for a probable cause hearing before an arrest warrant was issued. He didn’t. Judge Lewis followed the law and dismissed the case.
If you have been accused of a crime relating to your employment, or have been falsely accused of any crime, please call me immediately.
Mississippi Criminal Defense Lawyer 