IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI ORAL ARGUMENT REQUESTED

Transcription

1 E-Filed Document Mar :55: IA SCT Pages: 20 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI HARVEY WILLIAMS, JR. vs. VS. STATE OF MISSISSIPPI APPELLANT CAUSE NO IA SCT APPELLEE APPELLANT, HARVEY WILLIAMS, JR.'S REPLY BRIEF ORAL ARGUMENT REQUESTED MERRlDA (BUDDY) COXWELL (MB# 7782) CHARLES R. MULLINS (MB# 9821) COXWELL & ASSOCIATES, PLLC Post Office Box 1337 Jackson, Mississippi Telephone: (601) Facsimile: (601)

2 STATEMENT REGARDING ORAL ARGUMENT Harvey Williams, Jr., Appellant herein, respectfully submits that the authority presented herein is insufficient to resolve the issues presented in this case without the addition of oral argument. There are contradicting facts and arguments presented by both Appellant and Appellee, in brief and on record, none of which present are clearly dispositive of the issues. The Co mt' s decisional process would be greatly aided by oral argument from both Appellant and Appellee.

3 TABLE OF CONTENTS PAGE STATEMENT REGARDING ORAL ARGUMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii-iv STATEMENT OF ISSUES... v ISSUE I:... 1 DID THE CIRCUIT COURT JUDGE VIOLATE THE SEPARATION OF POWERS DOCTRINE BY APPOINTING THE MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR AFTER THE CASE WAS DISMISSED BY NOLLE PROSEQUI? IN THE ALTERNATIVE DID THE HINDS COUNTY CIRCUIT COURT JUDGE HA VE THE AUTHORITY AND/OR JURISDICITON TO APPOINT THE MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR? POINT I: THE TRIAL COURT'S ORDER APPOINTING THE ATTORNEY GENERAL AS SPECIAL PROSECUTOR WAS A VIOLATION OF SEPARATION OF POWERS. POINT II: SINCE THE CASE WAS DISMISSED BY NOLLE PROSEQUI AND THE TRIAL COURT'S APPOINTMENT OF THE ATTORNEY GENERAL WAS THUS INEFFECTIVE, THE ATTORNEY GENERAL DOES NOT HAVE AUTHORITY OR JURISDICTION TO USURP THE DISTRICT ATTORNEY'S AUTHORITY IN ORDER INSTITUTE PROSECUTION OF THIS CASE. POINT III: INTERLOCUTORY APPEAL IS NECESSARY DUE TO THE SEPARATION OF POWERS ISSUES PRESENTED HEREIN, AS WELL AS ISSUES OF GENERAL IMPORTANCE IN THE ADMINISTRATION OF JUSTICE. ISSUE I CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITES PAGE CASES Beckwith v. State, 707 So. 2d 57 (Miss. 1997) Cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153 (1998) Capitol Stages, Inc. v. State, 157 Miss. 576 (Miss. 1930) Connecticut Nat'l Bankv. Germain, 503 U.S. 249 (1992)... 7 Conwill v. State, 94 So. 3d 1173 (Miss. Ct. App. 2011)... 2 Frazier v. State, 504 So. 2d 675 (Miss. 1987)... 5, 10 Jordan v. State, 786 So. 2d 987 (Miss. 2001)... 3 State v. Adams County Circuit Court, 735 So. 2d 201 (Miss. 1999) State ex. Rel. Patterson v. Warren, 182 So. 2d 293 (Miss. 1965) Suggestion of error sustained in part, overruled in part, 182 So. 2d 234 (Miss. 1966)... 4 OTHER AUTHORITIES lvfiss. Code Ann (1972)... 4 J\1iss. Code Ann to (1972)... 8 Miss. Code Ann (1972)... 8 Miss. Code Ann (1972)... 5, 7, 8, 9, 10, 12 Miss. Code Ann (1972) , 7 Miss. Code Ann (1972) Miss. Code Ann (1972)... 5, 6, 7 Miss. Code Ann (1972)... 5, 7, 9 J\1iss. Code Ann (1972)... 5 Mississippi Rules of Appellate Procedure, Rule

5 YULE KIM, CONG. RESEARCH SERY., RL , STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS CR-12 (2008)... 7 iv

6 STATEMENT OF ISSUES ISSUE I: DID THE CIRCUIT COURT JUDGE VIOLATE THE SEPARATION OF POWERS DOCTRINE BY APPOINTING THE MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR AFTER THE CASE WAS DISMISSED BY NOLLE PROSEQUI? IN THE ALTERNATIVE DID THE HINDS COUNTY CIRCUIT COURT JUDGE HA VE THE AUTHORITY AND/OR JURISDICTION TO APPOINT THE MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR? POINT I: POINT II: POINT III: THE TRIAL COURT'S ORDER APPOINTING THE ATTORNEY GENERAL AS SPECIAL PROSECUTOR WAS A VIOLATION OF SEPARATION OF POWERS. SINCE THE CASE WAS DISMISSED BY NOLLE PROSEQU/ AND THE TRIAL COURT'S APPOINTMENT OF THE ATTORNEY GENERAL WAS THUS INEFFECTIVE, THE ATTORNEY GENERAL DOES NOT HAVE AUTHORITY OR JURISDICTION TO USURP THE DISTRICT ATTORNEY'S AUTHORITY IN ORDER INSTITUTE PROSECUTION OF THIS CASE. INTERLOCUTORY APPEAL IS NECESSARY DUE TO THE SEPARATION OF POWERS ISSUES PRESENTED HEREIN, AS WELL AS ISSUES OF GENERAL IMPORTANCE IN THE ADMINISTRATION OF JUSTICE. v

7 ISSUE I DID THE CIRCUIT COURT JUDGE VIOLATE THE SEPARATION OF POWERS DOCTRINE BY APPOINTING THE MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR AFTER THE CASE WAS DISMISSED BY NOLLE PROSEQUI? IN THE ALTERNATIVE DID THE HINDS COUNTY CIRCUIT COURT JUDGE HAVE THE AUTHORITY AND/OR JURISDICTION TO APPOINT THE MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR? POINT I THE TRIAL COURT'S ORDER APPOINTING THE ATTORNEY GENERAL AS SPECIAL PROSECUTOR WAS A VIOLATION OF SEPARATION OF POWERS. The Hinds County Circuit Court lost jurisdiction of Mr. Williams' case after the proper entry of the nolle prosequi by Judge Hilburn, and thus any subsequent orders are null and void. Though the Attomey General argued in the court below that the trial court's actions were proper, the Attorney General now argues that the trial co mt' s order was simply a "recognition of the Attorney General's independent and constitutional authority." State Br. at 19. Reserving for later any discussion of the Attorney General's authority to initiate prosecution of a case sua ;ponte, the entry of the nolle prosequi brought the jurisdiction of the Hinds County Circuit Comt to a decisive end. Neither Judge Hilburn nor Judge Weill had any authority or jurisdiction to appoint or even "recognize" the authority of the Attorney General to prosecute a case that was no longer within the Circuit Court's jurisdiction. The only way for the Hinds County Circuit Comt to regain jurisdiction over Mr. Williams is for his case to be re-presented to the Grand Jury and for a new indictment to be issued.

8 As this Court is aware, a nolle prosequi "unconditionally dismisses a criminal indictment," although the State may seek to re-indict for the same offense or different charges. Conwill v. State, 94 So. 3d 1173, 1176 (Miss. Ct. App ), quoting Payton v. State, 41 So. 3d 713, 717 (Miss. Ct. App. 2009). While the Attorney General appears to recognize the unconditional dismissal that accompanies the entrance of a valid nolle prosequi, the Attorney General fails to acknowledge that any attempt to skirt the necessaty processes to regain jurisdiction that has been lost is a separation of powers issue. The Attorney General attempts to re-characterize the issue as the trial court's "recognition" of the Attorney General's authority, but that authority to prosecute must follow the proper Constitutional and statutory channels. Anything else-whether through action by the Attorney General or the trial comt-is a separation of powers violation. Furthermore, contrary to the Attorney General's suggestion that no conflict between the Attorney General and the district attorney exists (State Br. at 17), there is clearly an issue between the two offices when the Attorney General is seeking to undermine the authority of the district attorney in his own district. In his testimony before Judge Weill, District Attorney Robert Schuler Smith testified that he had never authorized a recusal on Mr. Williams' case, nor was he aware of any of the alleged reasons for recusal. Transcript, p. 31, In. 6-10; p. 32, In After several pages of contentious back and fotih between the Attorney General and Mr. Smith, regarding the original, ovet1urned prosecution of Mr. Williams (see Transcript, p ), Mr. Smith testified that he "object[ed] to the attorney general's office not contacting the district attorney... and getting involved in cases where [he has] jurisdiction as the elected district attorney." Transcript, p. 42, In This conflict is patticularly problematic as the Fifth Circuit and this Court have previously held that "where special prosecutors are appointed, district 2

9 attorneys must 'retain control of the prosecution." Jordan v. State, 786 So. 2d 987 (Miss. 2001), quoting Faulder v. Johnson, 81 F.3d 515, 517 (5th Cir. 1996). In Faulder, the Fifth Circuit found that the district attorney had retained control of the prosecution because the special prosecutor had a prior relationship with the district attorney, there was frequent communication between the two, and the special prosecutor had a "clear understanding of the district attorney's final decision-making authority." 81 F.3d at 517. This Court echoed the Fifth Circuit's findings in Jordan, where there was no evidence to suggest the special prosecutor's actions in Jordan's case "were not authorized by or under the control of the District Attorney." 786 So. 2d at Given the contention between the district attorney's office and the assistant attorney generals, it is difficult to imagine that any special prosecutor appointed in this case would have a "clear understanding of the district attorney's final decision-making authority." Faulder, 81 F.3d at 517. Additionally, Mr. Smith testified to a separation of powers issue in that Judge Hilburn had engaged in an ex parte conversation with his office regarding prosecution of the case. Transcript. at 31, In Keith Gates, who was formerly employed as an assistant district attorney in Hinds County, testified that after he entered a motion for nolle prosequi before Judge Hilburn, Judge Hilburn called him into chambers to discuss the judge's dissatisfaction with the decision to no! pros the case. Id. p. 49, In Judge Hilburn testified that he went to Mr. Smith's office to discuss re-prosecuting the case. Id. p. 77, In For the State to suggest that no separation of powers issue, or even conflict, exists between these offices is simply a refusal to see the facts as they are. The trial court's interference in the prosecution of Mr. Williams' case is a clear violation of the separation of powers doctrine, and a clear conflict exists between the Attorney General and district attorney's offices. One can hardly imagine a greater 3

10 separation of powers issue where.a Judge circumvents the prosecutorial decision of the elected District Attorney. POINT II SINCE THE CASE WAS DISMISSED BY NOLLE PROSEQUI AND THE TRIAL COURT'S APPOINTMENT OF THE ATTORNEY GENERAL WAS THUS INEFFECTIVE, THE ATTORNEY GENERAL DOES NOT HA VE AUTHORITY OR JURISDICTION TO USURP THE DISTRICT ATTORNEY'S AUTHORITY IN ORDER INSTITUTE PROSECUTION OF THIS CASE. The Attorney General's claim of authority to prosecute Mr. Williams is an attempted usurpation of the District Attorney's authority and a circumvention of statutorily proscribed requirements. The Attorney General argued below and continues to argue here that it has the authority to enter any county and prosecute any local crime by virtue of the powers granted to the office at common law. State Br. at. 6. However, there are limits on this common law power. Section of the Mississippi Code grants the Attorney General "the powers of the Attorney General at common law" and provides for the restriction or limitation of this power through the implementation ofstatutes. 1 Miss. Code. Ann (1972). The Mississippi Supreme Comt explicitly stated this ability to limit the Attorney General's power in State ex rel. Patterson v. Warren: "The attorney general is clothed with all the common law powers of the office, except insofar as they have been expressly restricted or modified by statute or the state constitution... " 254 Miss. 293, , 180 So. 2d 293, 300 (Miss. 1965), suggestion of error sustained in part, overruled in part, 254 Miss. 293, 182 So. 2d 234 (Miss. 1966). Despite the Attorney General's The phrase "except otherwise provided by law," clearly indicates the ability of the legislature to restrict the common law powers of the Attorney General. Although at the time this language was added, the phrase was aimed at civil law, there is no caveat preventing the ability of the Legislature to alter the Attorney General's criminal common law power or any language of the statute indicated the restrictions only apply to civil law. If the Legislature can alter the civil powers of the Attorney General, then it stands to reason that the Attorney General's criininal po,vers can be restricted as \Veil. 4

11 implication that the Legislature has no authority to modify or restrict the powers of the Attorney General (State Br. at 9, n. 2), it is evident through this Comi and other courts' decisions, as well as actions taken by the legislature, that the Attorney General does not wield unbridled power to institute prosecutions and civil action as he sees fit and whenever he chooses. See Frazier v. State, 504 So. 2d 675, 690 (Miss. 1987) ("all public officers, including the Attorney General, are subordinate to the laws of this State."). The Legislature has specifically provided for the prosecution of crimes against the state by the Attorney General's office in at least three sections of the Mississippi Code. Section allows the Gaming Commission to recommend prosecution of a crime to either the district attorney or the Attorney General. Section 4 goes even further and allows the Attorney General to prosecute where the district attorney has declined to do so, offering the Attorney General "all powers of a district attorney." 2 In , the Legislature granted tiie Attorney General the specific power to prosecute crimes of official corruption or other "white collar" crimes. 3 Section gives the Attorney General the power to investigate or prosecute any 2 In pe1tinent part, states: (I) The commission or the executive director shall initiate proceedings or actions appropriate to enforce the provisions of this chapter and may recommend that a district attorney or the Attorney General prosecute any public offense committed in violation of any provision of this chapter, or in violation of Section when the offense involves the use of a casino marker issued to a licensed gaming establishment. (4) If the con1mission or the executive director, after reviei.ving a district attorne)1's declination to prosecute, disagrees lvifh the decision of such district attorney, the co111n1ission or the e.tecutive director 111<1)' then refer the request for crilninal prosecution to the AttorneJ' General. In conducting any such prosecution, the Attorney General shall have all powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process, and the right to enter the grand jury room while the grand jury is in session and to perform services with reference to the work of the grand jury. Miss. Code. Ann (1972) (emphasis supplied). Section reads: (4) In addition to the authority granted in Section , Mississippi Code of I972, the Attorney General shall prosecute, in person or by his designated staff attorney, criminal matters and cases investigated by him pursuant to the provisions of Section and he may request the 5

12 possible Medicaid fraud and provides that the Attorney General will have all the powers of a district attorney when conducting such investigation or prosecutions. 4 The Attorney General argues in its brief that these grants of prosecutorial authority are "a grant of additional prosecutorial authority," not a restriction of authority. (State Br. p. 11, note 4). While these statutes may not contain an explicit restriction of authority, if the Attorney General's expansive common law power already grants it the authority to prosecute any suit in which the state has an interest, an additional grant would be unnecessary. If the Attorney General has broad discretion to prosecute any crime, a power that stems from the nebulous reaches of the common law, then the enactment of the above-mentioned statutes would be superfluous. If the Attorney General may call a circuit court grand jury for the prosecution of any crime in the name of the state, then the Legislature need not have granted the power to prosecute gaming offenses, white collar crimes, or Medicaid fraud. If the common law services or assistance of any district attorney in and about such matters or suits. When requested by a district attorney and in the public interest, the Attorney General may, in person or by his designated staff attorney, assist the district attorney in the discharge of his duties. The Attorney General or his designated staff attorney shall have the same right as the district attorney to enter the grand jury room while the grand jury is in session and to perform such services with reference to the work of the grand jmy as the district attorney is authorized by law to perform. (2) The powers of the Attorney General under this section shall not diminish the powers of local authorities to investigate or prosecute any type of white-collar crime violation or any other criminal conduct within their respective jurisdictions, and the provisions of this section shall be in addition to the powers and authority previously granted the Attorney General by connnon, constitutional, statutoiy or case la,v. Miss. Code Ann (1972). Section states: The Attorney General, acting through the Director of the Fraud Control Unit, may, in any case involving alleged violations of this article, conduct an investigation or prosecution. In conducting such actions, the Attorney General, acting through the director, shall have all the powers of a district attorney, including the powers to issue or cause to be issued subpoenas or other process. Miss. CodeAn11. (1972). 6

13 power grants the Attorney General the authority to usurp the position of the duly elected district attorney, then any grant of"all the powers of a district attorney" would be unnecessary. 5 Fmthermore, the principles of statutory interpretation prevent such redundant results. "Statutes should be construed 'so as to avoid rendering superfh1ous' any statutory language." YULE KIM, CONG. RESEARCH SERV., RL , STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS (2008), quoting Astoria Federal Savings & Loan Ass 'n v. Solimino, 501 U.S. 104, 112 (1991). This principle of statutory interpretation seeks to avoid redundant language not only in a single statute but also throughout a statutory code. Id. at n. 62. See also Connecticut Nat'! Bank v. Germain, 503 U.S. 249, 253 (1992) ("[C]ourts should disfavor interpretations of statutes that render language superfluous.... ") Reading the Mississippi Code as the State suggests would create just the s01t of redundancies statutory interpretation principles seek to avoid. Additionally, in , the Legislature has specifically delineated the parameters of the Attorney General's right to prosecute other criminal acts with the same authority as a district attorney: The Attorney General shall, when required by the public service or when directed by the Governor, in writing, repair in person, or by any regular or specially designated assistant, to any county or district in the state and assist the district attorney there in the discharge of his duties and in any prosecution against a state officer, and shall have the same right as the district attorney to enter the grand jury room while the grand jury is in session and to perform such services with reference to the work of the grand jury as the district attorney is authorized by law to perform. 5 Section grants the Attorney General "all powers ofa district attorney[.]"; grants "[t]he Attorney General or his designated staff attorney... the same right as the district attorney... " allows the Attorney General to 11 have all po\vers of a district attorney" \Vhen "conducting any such prosecution" as allo\ved by that title. Miss. Code Ann. (1972). 7

14 Miss. Code Ann (1972). Although the Attorney General would have this Court interpret this statute as outlining the Attorney General's role when assisting a district attorney, this interpretation is clearly incorrect. A glance at the titles found before and after reveal an outline of the Attorney General's duties, including keeping a docket, keeping an opinion-book, approving accounts against the state, attending the Supreme Comt, enforcing judgments, representing the state and state officers in suits, and many more. 6 See Miss. Code Ann to (1972). Thus, clearly creates a duty upon the Attorney General to assist the district attorney when requested or commanded by the Governor. Contrary to the Attorney General's understanding 7, Mr. Williams relies on this statute as a determination of the Attorney General's allowed involvement with the prosecution of crimes in circuit comts only when required by the public service or when required by the Governor. Neither requirement for the Attorney General's involvement was met here. Governor Bryant has not directed the Attorney General to step in as prosecutor, and there is no issue of public service. Public service would indicate that the district attorney was unable to prosecute or had validly recused itself from prosecution. Yet, by the State's own admission, the entrance of the nolle prosequi ended the case as to Mr. Williams and the Hinds County Circuit Comt unless and until he is re-indicted. See Order; State Br. at 19. Incredibly, the State also argues that the insertion of the Attorney General into the 6 Found amongst these duties is , "To prosecute suits," but that section provides for the prosecution of suits "on any official bond, or any contract in which the state is interested... and prosecute or defense for the state all actions, civil or criminal, relating to any matter connected with either of the state offices." Miss. Code Ann (1972). Put plainly, this statute explicitly allows for the Attorney General to prosecute suits that relate to official bonds, breaches of contract, or other civil or criminal matters connected with the state offices. That phraseconnected with either of the state offices--<jualifies the Attorney General's power to prosecute suits generally, and Mr. William's alleged criminal offense is not a criminal matter connected with the state offices. 7 The State mistakenly believes that Mr. Williams' reliance on is a protest of forcible assistance. State Br. at 14. In reality, Mr. Williams' reliance on is an insistence that the Attorney General recognize the boundaries of his authority and relegate himself to the position of assistant-when it is required of him. 8

15 prosecution of Mr. Williams is in compliance with any statutory requirements of because the Hinds County District Attorney's office recused itself from prosecution of Mr. Williams, and thus the public service requirement is satisfied. 8 State Br. at 14-15, n. 8. The State seems to want two bites at the apple: first, it notes that all parties agree the entrance of the nolle prosequi ended the case against Mr. Williams as to Cause No Then, it wants to give validity to the recusal order for the same cause number, an order that was entered nearly a year after the conclusion of the case per the no/le prosequi. The Attorney General cannot have its proverbial cake and eat it, too. The Attorney General further asserts that he may choose to prosecute in any situation where the district attorney, in his or her discretion, declines to do so, not just in the situations allowed by statute. The Attorney General's brief refers to this power as the "concurrent authority" shared between the Attorney General and the district attorneys of the state, but the only statute in the Mississippi Code that contemplates this sharing of authority is , discussed above. Section explicitly allows the Attorney General to prosecute crimes arising from the Gaming Control Act where the district attorney has declined to prosecute. Afiss. Code Ann (1972). The Attorney General can point to no authority, statutory or otherwise, that would allow this expansive "concurrent authority" to prosecute any crime. The most compelling authority the Attorney General's brief supplies are references to the historical, common-law powers of the Attorney General as the chief legal officer of the "Crown" and statements that the district attorney cannot encroach on the powers of the Attorney General. Mr. Williams is not seeking any encroachment upon the powers of the g State's blatant refusal to accept the invalidity of the recusal flies in the face of the District Attorney's sworn statements that he had no reason to be recused from the case and his filed a response to this motion stating his opposition to the Attorney General's interference. See Transcript, p. 31, In. 3-10; Response of the Office of the District Attorney to Petition for Interlocutory Appeal. 9

16 Attorney General; he seeks only for the bounds of the Attorney General's powers to be recognized. Furthennore, it is the discretion and authority of the district attorney that is being ignored, not that of the Attorney General. The Hinds County District Attorney entered a valid nolle prosequi, dismissing the original indictment against Mr. Williams. Neither Mr. Williams nor his attorneys assert that the no/le prosequi is a permanent bar on a later indictment, but do assert that only through a subsequent and proper indictment should again he be faced with these charges. A proper indictment from a Hinds County grand jury can come only at the direction of the office of the district attorney 9 or at the direction of the Attorney General who has been properly authorized to prosecute the crime as provided in The Attorney General's attempt to circumvent the requirements of prosecutorial procedure is an usurpation of the district attorney's power. As the Attorney General recognized in its brief, neither the district attorney nor the Attorney General are subservient to the other. State Br. at 16. The powers of the district attorney "cannot encroach on the powers of the attorney-general," and "the powers of the district attorneys can neither be increased nor diminished by the attorney-general." Capitol Stages, Inc. v. State, 157 Miss. 576 (Miss. 1930). 10 However, all public offices of the state, "including the Attorney General, are subordinate to the laws of this State." Frazier v. State, 504 So. 2d 675 (Miss. 1987). 9 Whether the current district attorney or a future-elected attorney brings the indictment is irrelevant, so long as it is "commenced in the comi where the case originated." De la Beckwith v. Stale, 707 So. 2d 57 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153 (1998). 10 "The attorney-general may advise the district attorneys, as he does other officers in his capacity as chief law officer of the state. Nevertheless the two offices are separate and distinct. The powers of the district attorneys can neither be increased nor diminished by the attorney-general. Their powers are statutmy, not common law, and they cannot encroach on the powers of the attorney-general." Capitol Stages, 157 Miss. at (emphasis supplied). IO

17 Honorable Robert Smith made a decision to not prosecute this case after a remand. This decision was based on evidence that the deceased had a gun right before the shooting and on other evidence that the deceased has a long history of shooting at people, including his own family. This was a proper, discretionary decision made by the elected District Attorney, and agreed with by his assistant, who also testified that he had seen or participate in similar dismissal. Jn fact, during his testimony Judge Hilburn testified that he had granted many dismissals in his career. There was nothing done which was improper in this case. The nolle pros was presented in open court with representatives for both the State and Mr. Williams present. POINT III INTERLOCUTORY APPEAL IS NECESSARY DUE TO THE SEPARATION OF POWERS ISSUES PRESENTED HEREIN, AS WELL AS ISSUES OF GENERAL IMPORTANCE IN THE ADMINISTRATION OF JUSTICE. The matter before the Court presents serious issues of separation of powers between and among the branches of government and issues of vital importance to any defendant who finds himself facing the unsure future of an indictment. The Mississippi Rules of Appellate Procedure allows an interlocutory appeal to be sought "if a substantial basis exists for a. difference of opinion on a question of law as to which appellate resolution may... resolve an issue of general importance in the administration of justice." MR.A.P. Rule 5. Furthermore, this Court has granted interlocutory appeals in cases with similar questions of law. See State v. Adams County Circuit Court, 735 So. 2d 201 (Miss. 1999) (where the Court granted the interlocutory appeal to consider the authority of a trial judge to interfere with the granting of a no/le proseqza). Although the Attorney General states the interlocutory appeal was "improvidently granted" because "all parties agree" that the indictment was dismissed with the no/le prosequi (State Br. at 11

18 19), earlier portions of the State's brief suggest that the nolle prosequi did not end Mr. Williams' case, at least insofar as it was necessary for the trial court to improperly appoint the Attorney General as a special prosecutor. Apparently the Attorney General wants to contend the nolle prosequi ended Mr. Williams' right, but none of the rights of the Attorney General. That sounds more akin to 3rd world rights than rights afforded in America. Additionally, the case before the Court presents substantial questions regarding the separation of powers between the judiciary, the Attorney General, and the district attorneys of the state. Neither Judge Hilburn nor Judge Weill had the power to appoint the Attorney General as special prosecutor because the case had already been dismissed by a valid nolle prosequi. Furthermore, even if the case had not been validly dismissed by the District Attorney, there was no need for the appointment of a special prosecutor because the district attorney's office was not disqualified from prosecution of the case and the governor had not requested the Attorney General to step in. See Miss. Code Ann (1972). Allowing this conflict of power and the attempted usurpation of authority by the Attorney General would have serious effect on the administration of justice, and thus, the grant of interlocutory appeal was not in error. CONCLUSION Once the nolle prosequi was properly granted and entered by the trial court, neither Judge Hilburn nor Judge Weill had authority to appoint the Attorney General as special prosecutor. These appointments ignore well-founded statutory and case law, and are a violation of the separation of powers doctrine. Additionally, the Attorney General has overstepped his bounds of authority by seeking to re-indict and re-prosecute Mr. Williams where it has no jurisdiction to do so. The Hinds County District Attorney's decision to enter a nolle prosequi cannot be secondguessed, usurped, or interfered with by Judge Hilburn, Judge Weill, or the Office of the Attorney 12

19 General. A duly elected District Attorney is free to exercise prosecutorial discretion, and free from control by the Mississippi Attorney General. RESPECTFULLY SUBMITTED, THIS the 28 1 h day of March, 20I4. HARVEY WILLIAMS, JR., APPELLANT BY: Isl Charles R. J.1ullins CHARLES R. MULLINS OF COUNSEL: MERRIDA (BUDDY) COXWELL (MB# 7782) CHARLES R. MULLINS (MB# 9821) COXWELL & ASSOCIATES, PLLC Post Office Box 1337 Jackson, MS 392I Telephone: (601) Facsimile: (601) Attonteys for Appellant 13

20 CERTIFICATE OF SERVICE This is to cetiify that I, Charles R. Mullins, attorney of record for the Defendant, Harvey Williams, Jr., in the above-styled and referenced matter have this day caused to be served, via U.S. Mail, postage prepaid, a true and correct copy of the above and foregoing Appe/laut, Harvey Williams, Jr. 's Reply Brief to the following: Harold E. Pizzetta, III, Esquire Marvin Sanders, Esquire Stanley Alexander, Esquire Mississippi Attorney General's Office Post Office Box 220 Jackson, Mississippi Robett S. Smith Office of the Hinds County District Attorney Post Office Box Jackson, Mississippi Hon. Jeffrey A. Weill, Sr. Hinds County Circuit Court Judge Post Office Box Jackson, Mississippi THIS, the 28 1 " day of March, Isl Charles R. lvfullins CHARLES R. MULLINS 14