Judge John Price Announces Retirement

From the Mississippi Bar weekly email:

Judicial Appointments Advisory Committee Seeks Candidates for County Court Judge in Warren County 
Judge John Price, County Court Judge in Warren County, has announced his resignation effective June 30. Persons interested in this position should send their resume to the Governor’s Judicial Appointments Advisory Committee C/O William L. Smith PO Box 22587 Jackson, Ms. 39225.  The resume can be sent electronically to bsmith@balch.com. The deadline for applying is June 16, 2017.

Congratulations Judge Price.  Thank you very much for your dedication to justice and service.

2017 Judicial Resignation Tracker:

  1. Circuit Judge Vernon Cotten – 8th Circuit District – Replacement: Yet to be named
  2. County Judge John Price – Warren County – Replacement: Yet to be named
  3. County Judge Gaylon Harper – Jones County – Replacement: Yet to be named

(My estimate is that 15 judges will announce their intention to resign or not run for reelection in 2018.)


What happens when a Judge is to be the 13th Juror.

Appellate judges focus on the standard of review.  The review of a motion for new trial in a criminal case presents a difficult question.  This seems to come up over and over again.

Not long ago, the COA handed down Little v. StateThe majority stated that the standard of review is as follows:

The sole argument Little makes on direct appeal is that the evidence against him was so minimal and contradictory that his conviction was against the weight of the evidence, requiring reversal.  “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). The Court sits as a “thirteenth juror,” and if it “disagrees with the jury’s resolution of the conflicting testimony,” the proper remedy is to grant a new trial. Id. “[T]he evidence should be weighed in the light most favorable to the verdict.” Id.

(Emphasis added).  What does it mean for a judge, especially an appellate judge, to sit as the “thirteenth juror.”  It is interesting to me that in the review of a trial court’s decision to deny a motion for new trial in a civil case, we don’t talk about the proverbial “thirteenth juror.”

In my dissent, I quoted at lengthy the discussion of Judge Larry Roberts.

¶14. The majority, sitting as a “thirteenth juror,” has determined that an eyewitness’s testimony is not sufficient evidence to sustain the jury’s verdict to convict Little. The decision to remand  could present a unique dilemma for the trial judge. Suppose that on remand, just before a new trial  is held, the prosecutor and the defense attorney meet with the trial judge and say: “Your Honor, we  have the exact same evidence to offer at this trial as the last. Based on the Court of Appeals’  ruling, if the same evidence results in a guilty verdict, you will be obligated to grant a new  trial.” They would be right. This case could be retried until a jury acquits the defendant. Thus, I am puzzled by the majority’s decision to remand the case for a new trial.

¶15. Nevertheless, I disagree with the majority’s decision to reverse Little’s conviction. First, I  address the standard of review. Second, I address my analysis.

¶16. I disagree with using the “thirteenth juror” rationale in the standard of review. In Hughes v. State, 43 So. 3d 526 (Miss. Ct. App. 2010), I joined Judge Larry Roberts’s specially concurring opinion. Judge Roberts, who was a very experienced circuit judge, addressed his concern with “the often-used characterization of an appellate court’s role when reviewing the weight of the evidence — namely our self-assigned role of the ‘thirteenth juror.’ It is a moniker I could not disagree with more.” Id. at 530 (¶16) (Roberts, J., specially concurring). Judge Roberts reasoned:

My review of this state’s jurisprudence on the matter shows that the first  appearance of  “thirteenth juror” used by a Mississippi appellate court in the context of an appellate court’s role in a review of the weight of the evidence was in McQueen v. State, 423 So. 2d 800 (Miss. 1982). In McQueen, the Mississippi Supreme Court quoted a lengthy passage from Tibbs v. Florida, 457 U.S. 31 (1982), in which the United States Supreme Court discussed the procedural consequences and differences between reversing a conviction based upon insufficiency of the evidence and the weight of the evidence. McQueen, 423 So. 2d at 803-04 (quoting Tibbs, 457 U.S. at 41-45). In so doing, the Supreme Court stated that “a reversal based upon the weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.Instead, the appellate court sits as a ‘thirteenth juror’ and disagrees with the jury’s resolution of the conflicting testimony.” Tibbs, 457 U.S. at 42. Post McQueen, the phrase was bounced around in the opinions of the supreme court, and later, this Court, before ultimately settling as a favorable description of an appellate court’s role. But the Supreme Court never used the phrase “thirteenth juror” again.

Nine years after McQueen was handed down, the supreme court again used the phrase. However, this time it was much less favorable and tended to disagree with Tibbs. The supreme court stated: “The appellate court’s role is to see that there is a fair trial given to both sides. We are not result oriented. The supreme court will not be the thirteenth juror.” Walker v. Graham, 582 So. 2d 431, 433 (Miss. 1991). This sentiment was continued over the next several years as “thirteenth juror” was singularly used in a number of dissents in a negative connotation describing the role the dissenting author believed the majority was incorrectly filling. See Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So. 2d 1186, 1193 (Miss. 1994) (McRae, J., dissenting); Lloyd Wood Constr. Co., Inc. v. Little, 623 So. 2d 968, 974 (Miss. 1993) (McRae, J., dissenting); Stonecipher v. Kornhaus, 623 So. 2d 955, 967-68 (Miss. 1993) (McRae, J., dissenting); New Hampshire Ins. Co. v. Sid Smith & Assocs., Inc., 610 So. 2d 340, 348 (Miss. 1992) (McRae, J., dissenting); State Highway Comm’n of Miss. v. Hyman, 592 So. 2d 952, 958 (Miss. 1991) (McRae, J., dissenting).

Then, in Allen v. State, 749 So. 2d 1152, 1159 (¶19) (Miss. Ct. App. 1999), this Court, reciting the standard of review utilized when reviewing a denial of a motion for a new
trial, stated that: “It has been said that on a motion for new trial the trial court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the trial court.” This language and standard, implying that the trial court is the theoretical “thirteenth juror,” was echoed time and time again.

This all led us to the current use of the term as first penned in Bush v. State, 895 So. 2d 836 (Miss. 2005). There the supreme court quoted Amiker v. Drugs For Less, Inc., 796 So. 2d 942 (Miss. 2000) and stated: “On a motion for a new trial the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So. 2d at 844 (¶18). This passage was interpreted for the proposition that “when the trial court (and subsequently the appellate court) reviews a verdict that is alleged to be against the overwhelming weight of the evidence, this presents a distinctive situation which necessitates the court sitting as a “thirteenth juror.” Id. at 844 n.2. The Bush court, labeling itself as a “thirteenth juror,” then resolved the issue of whether Kanynne Jamol Bush’s conviction was supported by the weight of the evidence by beginning its conclusion with “sitting as a limited ‘thirteenth juror’ in this case.” Id. at (¶19). But Amiker simply does not mandate or otherwise suggest that it is proper for an appellate court to sit, review the evidence, and make a judgment call of credibility and other matters germane to the role of a juror.

In Amiker, the central issue was whether a successor judge could vacate his predecessor’s order granting a new trial. Amiker, 796 So. 2d at 946 (¶8). In arriving at the conclusion, the supreme court in Amiker stated:

It has long been recognized that the trial judge is in the best position to view the trial. “The trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that we need and desire.” Gavin v. State, 473 So. 2d 952, 955 (Miss. 1985). Using a cold, printed record of a case, if that, a successor judge sits in an inferior position to the judge who presided over the trial of the case.

Id. at 947 (¶16). Further, it was identified that:

If we allowed a successor judge to change a decision granting a new trial, we would  invest power in one in no better position than this Court to do what this Court does not do. This Court justifiably refuses to review grants of a new trial based in part on the superior position of the trial court to decide such matters. Dorr v. Watson, 28 Miss. 383, 395 (1854) (“The granting [of] a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to settled legal rules as well as the justice of the particular case. If a new trial be refused, a strong case must be shown to authorize the appellate court to say that it was error; and so, if it be granted, it must be manifest that it was improperly granted.”). See also Rayner v. Lindsey, 243 Miss. 824, 832-33, 138 So. 2d 902, 905-06 (1962). Surely, a
successor trial judge is in no better position than this Court.

Id. at 948 (¶21). I do not find these pronouncements can form the basis for the establishment of an appellate court as a “thirteenth juror” when reviewing the denials of motions for a new trial as surmised in Bush and utilized in the litany of cases following it (including cases from this Court—some even authored by myself). In fact, Amiker successfully pleads the case for the alternative and only reestablishes that it is the trial court alone that can fill the role of “thirteenth juror.”

The role of an appellate court when reviewing the denial of a motion for a new trial is, simply stated, to determine whether the trial court abused its discretion in doing so. Sheffield v. State, 749 So. 2d 123, 127 (¶16) (Miss. 1999). This is so for the exact reasons expounded in Amiker. It is the trial judge who sits and observes the evidence and witnesses’ demeanor throughout the trial; who hears the witnesses’ testimonies; and who, ultimately, is the closest thing a trial has to a “thirteenth juror.” That title and point of view are simply inappropriate for an appellate court armed only with “a cold, printed record of a case.”

My last point goes to the realistic ramifications of a reversal by an appellate court of a trial court’s denial of a motion for a new trial. As touched upon in Justice White’s dissent in Tibbs, given an appellate court’s reversal on the weight of the evidence, “the defendant has already demonstrated that a conviction based on the State’s case, as so far developed, is ‘against the weight of the evidence.’” Tibbs, 457 U.S. at 50 (White, J., dissenting). Therefore, the State and trial court are put in a precarious situation on remand. Assuming the State chooses  to prosecute again, with no better or worse evidence at its disposal, and the defense does not make any substantive changes in its presentation of evidence or trial strategy, and the same result occurs, by the “rule of the case,” the trial court is all but required to grant a second new trial. If not, when the defendant appeals his conviction arguing that the weight of the evidence is not sufficient and, of course, cites the reversal of his previous conviction as authority, an appellate court would similarly have no choice but to reverse and remand once more or be guilty of intellectual dishonesty.

The majority in Tibbs argues otherwise stating in response to Justice White’s dissent that:

Although reversal of a first conviction based on sharply conflicting testimony may serve the interests of justice, reversal of a second conviction based on the same evidence may not. While the interests of justice may require an appellate court to sit once as a thirteenth juror, that standard does not compel the court to repeat the role.

Tibbs, 457 U.S. at 43 n.18. However, in my opinion, this line of reasoning does nothing more than muddle and dilute the standard of review that an appellate court must apply. If there have been no substantive changes from one trial to the next and the same outcome is reached by a second jury, a failure on an appellate court’s part to, once again, remand the case for a new trial can be viewed as nothing more than arbitrary and capricious. Quite clearly, all other things equal, if the weight of the evidence would not support a finding of guilt after the first conviction, the same evidence, when presented during subsequent trials, must still be deemed inadequate to support a conviction. Contrary to the statement quoted from Tibbs above, our role as an appellate court does not change.

Therefore, I respectfully suggest to the members of our appellate judiciary that we are not, and can never be, the hypothetical “thirteenth juror.” The closest judicial entity identifiable as a possible “thirteenth juror” must be the trial judge. When we review a claim on appeal that the verdict is contrary to the weight of the evidence, we simply determine based upon the cold record whether the trial judge abused his discretion. Nothing more, nothing less.

Hughes, 43 So. 3d at 530-33 (¶¶17-25) (Roberts, J., specially concurring).

¶17. If these are the correct criteria to review a motion for a new trial, we should ask why the “thirteenth juror” analysis is not also part of the standard of review in civil cases. For example, in White v. Yellow Freight System, Inc., 905 So. 2d 506, 510-11 (¶7) (Miss. 2004), the supreme court considered a motion for a new trial and did not include a “thirteenth juror” discussion:

A motion for a new trial falls within a lower standard of review than does that of a judgment notwithstanding the verdict or a directed verdict. [Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 55 (Miss. 2004)]. Rule 59 of the Mississippi Rules of Civil Procedure authorizes the trial judge to set aside a jury verdict as to any or all parts of the issues tried and to grant a new trial whenever . . . justice requires. M.R.C.P. 59 cmt. The grant or denial of a motion for a new trial is a matter within the trial court’s sound discretion. Green v. Grant, 641 So. 2d 1203, 1207 (Miss. 1994). A new trial may be granted in a number of circumstances, such as when the verdict is against the substantial or overwhelming weight of the evidence. Shields v. Easterling, 676 So. 2d 293, 298 (Miss. 1996); see also URCCC 10.05(2)[.] On appeal, this Court may reverse the granting of a new trial only when the trial court has abused its discretion. Green, 641 So. 2d at 1207. The existence of trial court discretion, as a matter of law and logic, necessarily implies that there are at least two differing actions, neither of which if taken by the trial judge will result in reversal. Shields, 676 So. 2d at 298. In reviewing the trial court’s decision, an appellate court must consider the credible evidence in the light most favorable to the non-moving party and generally take the credible evidence supporting the claims or defenses of the non-moving party as true. Green, 641 So. 2d at 1207. When the evidence is so viewed, this Court will reverse only when, upon review of the entire record, we are left with a firm and definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice. Id. at 1207-08.

¶18. When we review this case on an abuse-of-discretion standard, I find that the eyewitness’s testimony was sufficient. I do not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush, 895 So. 2d at 844 (¶18). I would affirm Little’s conviction.
For these reasons, I dissent.


Appellate court schedule for oral arguments in May

Supreme Court

2015-DP-01818-SCT Terry Pitchford v. State of Mississippi
Tuesday, May 30, 2017
1:30 p.m.

2016-CA-00079-SCT Jackson Residential Associates One, LLC d/b/a Van Mark Apartments v. City of Ridgeland, Mississippi
Wednesday, May 31, 2017
1:30 p.m.

Court of Appeals

2016-CA-00732-COA Holly S. Morgan v. MML Investors Services, Inc., Massachusetts Mutual Life Insurance Company and Stephen Collins, Individually and d/b/a Collins Financial Network
Wednesday, May 24, 2017
10:00 a.m.

2015-CA-01875-COA John William Mayton, J.A. McNeil and Michael Maranto, Jr. v. Jane Oliver
Thursday, May 25, 2017
10:00 a.m.

2016-CA-00687-COA Jerrard T. Cook a/k/a Jerrad T. Cook a/k/a Jerrard Cook a/k/a Jerrard Tramaine Cook a/k/a J-Fat v. State of Mississippi
Wednesday, May 31, 2017
10:00 a.m.

Thanks to CABA and JYL

I just want to thank CABA and JYL for the Evening Honoring the Judiciary, held last night at the Country Club of Jackson.  The reception and the dinner were excellent.  Chief Justice Bill Waller gave an excellent overview of the Mississippi judiciary, and 5th Circuit Chief Judge Carl Stewart was the keynote speaker.  Chief Judge Stewart is an exceptional speaker and he is always interesting.  We should also thank him for his decisions to allow the Mississippi federal judges to participate in the CLE at the Mississippi Bar.

Thank you to all of the members and staff of CABA and JYL.  We need more evenings where we come together as lawyers and celebrate our profession.

Class Actions in Mississippi

Posted on the Mississippi Supreme Court Website – a Class Action rule may be coming in the near future.

Motion to Amend Rule 23 of the Mississippi Rules of Civil Procedure

The Supreme Court’s Rules Committee on Civil Practice and Procedure seeks comments to the Motion to Amend Rule 23 of the Mississippi Rules of Civil Procedure, filed by Richard T. Phillips.

Comments must be filed with the Clerk of Appellate Courts at Post Office Box 249, Jackson, Mississippi 39205. The filing deadline is June 15, 2017.

School Funding and Future Governors

Yesterday, the Mississippi Supreme Court heard argument from former Governor Ronnie Musgrove and an Assistant Attorney General about school funding.

According to the Clarion Ledger article, Governor Musgrove argued that MAEP must be funded – “There are all kinds of statutory provisions that the Legislature must comply with, unless they change the law.”  It continues, “Musgrove also argues the funding formula is legally strengthened by the state constitution, which says ‘The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe.’”

General Hood’s representative apparently argued that the Legislature does not have to fully fund MAEP.  He said “the law is only an ‘aspirational goal’ and that each year’s Legislature ‘can ignore’ the formula’s mandates, even without changing the law. ‘The MAEP budget formula does not reduce legislators’ fiscal discretion to a rubber stamp,'”

Am I the only person who thinks that a potential gubernatorial candidate will see this argument again in political ads that say he agrees with the approach to school funding taken by our elected officials and Legislature?

Has school funding just been taken off the board as a political “hot potato?”