IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO BA-250-SCT THE MISSISSIPPI BAR BRIEF OF APPELLANT

Transcription

1 E-Filed Document Nov :59: BA SCT Pages: 16 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO BA-250-SCT MICHAEL W. CROSBY APPELLANT VERSUS THE MISSISSIPPI BAR APPELLEE BRIEF OF APPELLANT (ON APPEAL FROM THE COMPLAINT TRIBUNAL MISSISSIPPI SUPREME COURT) Michael W. Crosby, pro se MS Bar No th Avenue Gulfport, MS TEL: FAX:

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO BA-250-SCT MICHAEL W. CROSBY APPELLANT VERSUS THE MISSISSIPPI BAR APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Michael W. Crosby, Appellant 2. James R. Clark, counsel for the Mississippi Bar 3. Adam B. Kilgore, counsel for the Mississippi Bar 4. Jacqueline Mask, Presiding Judge, Complaint Tribunal 5. Susan M. Guerieri, Complaint Tribunal 6. Victor I. Fleitas, Complaint Tribunal 7. Travis Brown, Complainant /s/ Michael W. Crosby MICHAEL W. CROSBY, pro se i

3 TABLE OF CONTENTS PAGE NO. 1. Certificate of Interested Persons i 2. Table of Contents ii 3. Table of Authorities iii 4. Statement of the Issues 5. Statement of Assignment 6. Statement of the Case 7. Summary of the Argument 8. Argument 9. Conclusion 10. Certificate of Service ii

4 TABLE OF AUTHORITIES PAGE NO. CASE LAW: STATUTES: CONSTITUTIONS: iii

5 STATEMENT OF THE ISSUES BECAUSE CROSBY VOLUNTEERED TO REPRESENT MR. BROWN ON APPEAL, PRO BONO, BUT AFTER BEING ORDERED REPEATEDLY BY THE SUPREME COURT TO FINALIZE THE RECORD OF APPEAL, THE COURT REPORTED TOOK 12 MONTHS TO FILE THE SAME, AND MR. CROSBY S SCHEDULE DRAMATICALLY INCREASED IN DIFFICULTY, DOES APPROXIMATELY 60 DAYS REQUESTED IN SEVERAL CONTINUANCES SEEM EXCESSIVE, AND SHOULD THAT FACT BE MENTIONED IN THE PUBLIC REPREMAND BECAUE MR. CROSBY FURNISHED MR. BROWN WITH THE PLEADINGS TO REINSTATED HIS APPEAL FOR GOOD CAUSE, UNDER RULE 2,4 OF THE APPELLATE RULES AND STATUTORY OUT OF TIME APPEAL RULES, AND HE REJECTED THE SAME, SHOULD THAT BE MENTIONED IN THE PUBLIC REPREMAND AND TAKEN IN CONSIDERATION WHEN DETERMINING THE DEGREE OF HARM CAUSED. DID MR. CROSBY HAVE GOOD CAUSE TO FILE THE APPEAL LATE, AND NOT FILE THE APPEAL UNDER THE CIRCUMSTANCES OF THE CASE DID MR. CROSBY VIOLATE RULE 8.1 OF THE PROFESSIONAL CONDUCT RULES BY AGREEING TO PROVIDE INFORMATION TO THE BAR IN CONNECTION WITH ITS REQUEST, BUT NOT IN A WRITTEN FORM THAT HAD TO BE SERVED UPON THE COMPLAIN TATE IN THE SAME JAIL THAT HOUSED THE PINE GROVE INMATES WHO WERE IN THE FACILITY WHICH MR. CROSBY ATTENDED AT THE REQUEST OF FELLOW MEMBERS OF THE BAR, AND NOT FOR ANY MISCONDUCT, OR MALPRATICE 1

6 STATEMENT OF ASSIGNMENT Pursuant to Miss. R. App. Proc. 16(b), this Court shall retain this case due to the fact that it involves attorney discipline. 2

7 STATEMENT OF THE CASE Procedural History: Facts: Michael W. Crosby, an attorney who has been practicing law for 30 years (since 1987), has been found in violation of rules of professional conduct, and is facing Public Reprimand to be read to his community and pears in the Circuit Court of Harrison County, Mississippi, in the court room where he has appeared on almost every Monday (and most all days of the week) for his 30 years of practice. A written Opinion and Final Judgment (RE ) has been prepared and is to be read at the reprimand. Mr. Crosby, I, have practiced primarily in Harrison County, Mississippi for almost his entire career, although I have tried felony cases, federal and State, in Texas, Alabama, (murder, drugs to not guilty verdicts) and many hearings in many other States. The case in question was a trial by jury in Hattiesburg, Mississippi. The complainant, Mr. Brown, was charged and convicted of several counts of aggravated assault in that he shot several U.S.M. football players, paralyzing and seriously injuring them. Mr. Brown s defense was a claim that he was wrongly accused. The trial was vigorously defended over multiple days in Hattiesburg Circuit Court. The discovery provided by the State indicated that the shooter had an unusual gait (i.e. walk). Although Mr. Brown had slightly bowed legs, he did not have a noticeable gait, except for the fact that the law enforcement used an iron bar restraint device on Mr. Brown s leg, which was designed to hide the fact that he was under arrest, but would cause difficulty in walking smoothly. Because the gait claim was not submitted until after Mr. Brown had limped in front of the jury as he was taken into court, I submitted that as misconduct and asserted it as a key 3

8 issue for appeal. Additionally, I argued that the circumstantial evidence instruction should have been given, which would have substantially increased our chances of a favorable verdict. Mr. Brown could not afford to retain counsel for his appeal, and because of the strong feelings regarding what I thought was an unfair trial, I volunteered to do the appeal without pay. After the conviction, I travelled back to Hattiesburg and argued in person, the JNOV and New Trial motions, and purchased legal research on Westlaw all at my own expense, to prepare the case for appeal. The issues raised during the post-trial motions, formed the basis for the issues for appeal. The record reflects the extensive argument on behalf of Mr. Brown, and there should be no genuine dispute as to the quality of the representation at Circuit Court. The problem arose due to the appeal and the fact that I did not file an appellate brief. The Jury verdict of guilty was entered on June 28, 2012, however, the record for appeal was not filed until June 6, months after I offered and agreed to represent Mr. Brown pro bono. The court reporter herself requested several extensions of time and the Supreme Court actually issues several demands for her to product the record. By the time that the record was prepared, as reflected in my motions for continuance, I had become involved in a huge number of actual felony jury trials, appellate briefs and argument, and just a large number of responsibilities. Although I agreed to represent Mr. Brown for free, and while I very much felt that I would be the one most likely to help him the most (since I understood the unique twists and turns of the case), I asked the Court for some extensions of time to represent Mr. Brown while balancing my other responsibilities. The motions for extension of time set forth in detail most of the jury trials and my schedule. 4

9 Part of the complaint of the Bar, is that I asked for several motions for time, however, the total time requested in the extensions of time was approximately 60 days (30, 20, 6, & 4 respectively) not a lengthy amount of time under the circumstances. It was not possible to predict my schedule a year after I volunteered to represent Mr. Brown, but I wanted to finish what I stated. The Bar hearing was conducted in North Mississippi, because the prosecutor convinced me that the complainant, Mr. Brown, as well as the judges, were located there, and it would be more continent for the parties for the hearing to take place there. (RE ) However, Mr. Brown was not present at the hearing, and my testimony was thus, undisputed. Before I represented Mr. Brown, something happened to me, which had a big impact upon this case. My marriage was breaking up, and my divorce caused me tremendous emotional distress. My fellow attorneys became concerned for me, and a group on judges, Chancery and Circuit, along with numerous friends and members of the bar, asked me to meet and out of concern for my wellbeing, recommended that I get counseling at Pine Grove. I was honored at their concern, and I decided to do as they recommended. It had nothing to do with and problems with any representation or cases. It has nothing to do with substance abuse, alcohol or otherwise. However, what I did not know or expect, probably because of my mental distress and inability to realize what I was waling into, Pine Grove, which is in Hattiesburg, is full of substance abusing individuals and is not full of doctors and lawyers as I expected. Nevertheless, I was sitting shoulder to shoulder with the drug people who were incarcerated in the Hattiesburg County Jail, right where Mr. Brown was. Because it took a year to get the record for the appeal, because I was very busy and not able to baby sit Brown, because I was representing him for free (which made him paranoid and 5

10 suspicious rather than appreciative), somehow rumors associated with my attending Ping Grove cause me problems with Mr. Brown and in the community. A rash of rumors spread, causing me much difficulty, despite my success with favorable verdicts in my jury trials. This is very embarrassing to me, and my children and family had to experience these bad rumors. Nevertheless, when trying to file Mr. Brown s brief, which was based upon the JNOV/New Trial legal research and argument which I made post-trial, which was set forth in my proposed 50 page brief (RE ; ) In my motions for continuance consisting of about 60 days, I did not disclose that Mr. Brown was having issues with suspecting my to have issues associated with the Pine Grove rumors, and he had jail house lawyers and family members who decided that I needed to file a change of venue issue with the brief. Before the trial, because of the publicity, I discussed this issue with Mr. Brown. It was a judgment call, but he agreed to not change the venue. Furthermore, if it were to be raised in the brief, he would have to asset that we never discussed the issue and never agreed to not assert it at the trial level. This would not be true, and it would put us in conflict. While trying to finalize the brief, although I never said anything negative about Mr. Brown (or any client) in my motions for continuance, although, he was putting me in a terrible situation. He continued to waiver on the issue, all the way until the final day when we gave him until the end of the workday to make his decision. We had prepared two things: the appellate brief, and the notice responding to the deficiency filing. The brief had to be filed by midnight, but at closing time for my office, at 5:00, he had not called, and we began to file the notice of compliance, which was transmitted at 4:55 p.m., saying that we mailed the brief. But, just before 5:00, either Mr. Brown or his family called and said that they were going to use another attorney. Please note at this time, the electronic filing has just started, and it was actually optional, and our form stated, mail when it should have stated ECF. This 6

11 issue was a point of contention with the Bar and me, although it was never mentioned in any pleading, letter or comment, and was brought up for the first time at the Bar hearing. Mr. Brown had told us he was consulting with another attorney, but never would tell us who it was. The brief was not filed, and the case was dismissed. It was the undersigned s desire, to go to discuss the matter with the new attorney, because I believe that he/she would have agreed with me that filing the change of venue objection would be detrimental to the appeal. I offered to file to reinstate the appeal, but he rejected my offer. Jane Tucker, another attorney did file a Motion to Reinstate the appeal, but in her motion, she stated only that I asked for numerous continuances and had deficiencies, and absolutely no good cause. She did not contact me to find out what happened, she did not contact the prosecutor to determine if he objected, and stated no good cause whatsoever. At the time of the filing of hearing, Mr. Brown was within the three years for the Post conviction time limit to file for an out of time appeal, but he rejected my attempt to help him file the same. I prepared and mailed him proposed pleadings to reinstate the appeal, but he rejected the offer yet again. Before representing Mr. Brown, I personally reinstated an appeal my a Rule 2,4 Motion pursuant to the Mississippi Rules of Appellant Procedure and another appeal via an out of time post conviction relief statutory filing, on behalf of other defendants/appellants whose attorneys did not file the briefs that they expected to be filed, and I had no problem helping them; and they did not have anything like the difficulties and good cause that I could have articulated, but for the fact that Ms. Tucker, without substituting counsel or with my consent, filed a motion, without consulting with me, and destroying the Rule 2,4 right to appeal. Nevertheless, we still had the statutory grounds, which was rejected by Mr. Brown. 7

12 Mr. Brown filed a letter with the Bar, stating that I m not doubting that Mr. Crosby is a good attorney but I feel like he has a lot going on in his life personally that s affecting his work as an attorney, so this is why I am filing the complaint with the Mississippi Bar. (RE 571 p. 2) The complaint was later filed in RE 555. The Bar sent the letters to me, in RE 554, and in its letter dated July 10, 2015, it specifically stated: The Committee on Professional Responsibility will consider the complaint and your response prior to determining whether an investigatory hearing will be conducted. I filed several letters stating that I did not agree with the complaint, but needed more time to respond. However, I struggled with the fact that I would be publically humiliated with the further discussion of the Pine Grove admission, which has caused me much difficulty. The letter stated that the failure to file a written response would cause the investigation to be conducted. Since I was specifically required to send a copy of my response to Mr. Brown, in the jail, in Hattiesburg, with all the Pine Grove fellows and ladies, I decided that I would prefer to discuss the matter in the investigation hearing, rather than contribute the more slander. The first paragraph stated: A certificate of Service showing that a full and complete copy of the response has been served upon the Complainant must be attached to your response and if a Certificate of Service is not incorporate in said Response or attached thereto, your response will not be accepted for filing because it is incomplete. Furthermore, I was willing and able, and did in fact, speak to the Bar on several occasions, and I never refused to provide information or cooperate with there investigation, but I did not provide a written response. The only written response began when I had to answer the complaint, the interrogatories, and answer question under oath during the hearing. Now, the Public Reprimand is a public record, and my personal Pine Grove matter will be made more 8

13 public than ever. Again, my visit to Pine Grove had nothing to do with anything unfortunate in connection with any of my work as an attorney, but only had to do with the concern of fellow attorneys and judges for m wellbeing. The primary focus of the appeal is based upon the failure of the Public Remand to mention the difficulties associated with the appeal, the extensive efforts to help Mr. Brown, before and after the dismissal of the appeal, before and after the dismissal, my providing him with the post conviction out of time appeal documents, which he rejected, the difficulties associated with another attorney entering into the case without consulting with me to determine any good cause which was necessary to reinstate the appeal under the Mississippi Rules of Appellate Procedure, the fact that I was willing to cooperate with any investigation, the fact that there was actually no investigation, but instead the Bar rejected my last communication and went directly to the complaint process without an investigating (which the Bar stated during the hearing that it was not required to do). Regrettably, I found myself in the middle of a difficult situation, and I deeply regret any and all problems I have caused. If I had simply filed a short brief with less effort than I set forth in my motions for time setting forth my jury trials, I would not be here. I truly wanted to represent Mr. Brown, I honestly wanted to work things out with him and win this case as I believe that the trial was not fair. Notice of Appeal was filed on 8/31/12, however, the trial transcript was not SUMMARY OF THE ARGUMENT 9

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15 ARGUMENT 11

16 CONCLUSION Respectfully submitted on this the 17 th day of November, BY: /s/ Michael W. Crosby MICHAEL W. CROSBY, pro se CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the BRIEF OF APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to all counsel of record, including: James Russell Clark, Esq., and Adam Bradley Kilgore. So certified on this the 17 th day of November, /s/ Michael W. Crosby MICHAEL W. CROSBY Michael W. Crosby (MSB# 7888) th Avenue Gulfport, MS TEL: FAX: michaelwcrosby@bellsouth.net 12