Mississippi Commission on Judicial Performance v. Carver

107 So. 3d 964, 2013 WL 540431, 2013 Miss. LEXIS 55
CourtMississippi Supreme Court
DecidedFebruary 14, 2013
DocketNo. 2012-JP-00683-SCT
StatusPublished
Cited by7 cases

This text of 107 So. 3d 964 (Mississippi Commission on Judicial Performance v. Carver) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mississippi Commission on Judicial Performance v. Carver, 107 So. 3d 964, 2013 WL 540431, 2013 Miss. LEXIS 55 (Mich. 2013).

Opinions

WALLER, Chief Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance filed a formal complaint against Hancock County Justice Court Judge Tommy Carver. It alleged that Judge Carver had ex parte communication with Steven K. Roche about his pending criminal case; failed to disclose such ex parte communication to the prosecutor; dismissed the charges against Roche without a hearing and without any motion to dismiss by the prosecutor; and falsified court records by noting on the file that two witnesses, Officers Bryce Gex and John Grimsley of the Mississippi Department of Marine Resources Marine Patrol, were absent when Roche’s case was called for trial. A three-member committee appointed by the Commission heard the testimony, reviewed the evidence, and recommended that Judge Carver be suspended thirty days from office without pay, publicly reprimanded, and assessed costs. The Commission adopted the committee’s findings. After conducting an independent inquiry of the record and giving careful consideration to the findings of fact and recommendations of the Commission and its three-member committee, we order that Judge Carver be publicly reprimanded and assessed $2,022.75 in costs.

FACTS

¶ 2. On December 23, 2010, Officers Bryce Gex and John Grimsley of the Mississippi Department of Marine Resources Marine Patrol ticketed Stephen K. Roche for five oyster-harvesting violations. Each ticket instructed Roche to appear before or contact the justice court clerk of Hancock County on or before March 22, 2011, at 9:00 a.m. Each ticket listed a phone number, as well. Four tickets included a mailing address, and one had a physical address.

¶ 3. Roche, who has a limited education and is dyslexic, said that he asked his brother-in-law, Frank Klein, to “look at the tickets and tell [him] when and where [he] had to be in court.” Klein said that he did not look at the tickets; instead, based on his father’s suggestion, he and Roche decided to visit Hancock County [967]*967Justice Court Judge Tommy Carver at his home. Klein had known Judge Carver his entire life; the two of them had played sports together.

¶4. So, one Saturday morning in late March or early April 2011, Roche and Klein went to Judge Carver’s home unannounced. Their only purpose, they said, was to learn the location of the temporary courtroom. The courtroom had moved several times after Hurricane Katrina.

¶ 5. Roche, Klein, and Judge Carver all said that Roche’s case was not discussed that Saturday morning: They spoke only about administrative matters and the court’s location. According to Judge Carver, Roche tried to show him one of the tickets, and he immediately told Roche and Klein that he could not discuss the case. Roche, however, did tell Judge Carver that his arraignment date was April 12, 2011— a fact that Roche could have known only if he or Klein already had contacted the court, according to Judge Carver. Based on the April 12 arraignment date, Judge Carver told them, “Well, that’s me. I definitely can’t talk to you about it.” When Roche said that he could not attend court on April 12, Judge Carver informed him that the case automatically would be reset for trial May 10. “I [gave] him the date and wrote the clerk’s ... phone number to [the] court,” Judge Carver said. Judge Carver denied that he told Roche not to attend court on May 10.

¶ 6. Roche and Klein said that Judge Carver told them the court’s location, advised Roche that he did not have to attend court on April 12 if he wished to contest the charges, and instructed Roche to contact the court clerk for a trial date. Yet, contrary to Judge Carver’s testimony, both claimed that they did not know that the case would be his.

¶ 7. The meeting between Roche, Klein, and Judge Carver was never disclosed to Hancock County Prosecutor Olen Anderson.

¶8. Roche did not attend his April 12 arraignment. On that day, Judge Carver claimed that he had an informal discussion with Officers Gex and Grimsley about Roche’s case. Judge Carver said that he, Gex, and Grimsley stood near the clerk’s office and joked about how Roche had been trying to collect oysters to make a po-boy sandwich. Officers Gex and Grims-ley asked Judge Carver if he had Roche’s case on the docket, and Judge Carver said that he did. Officer Gex then asked if Roche was related to former Justice Court Judge Lee Klein and if Judge Carver needed some “help” with the tickets. Judge Carver declined. “... I’m not sticking my butt on the line[] because I don’t know the guy,” Judge Carver replied. Officer Gex denied that such a conversation occurred.

¶ 9. The Hancock County Justice Court was busier than normal on Roche’s May 10, 2011, trial date due to the initial appearance a local celebrity on a drug charge. Several media members were there, including local reporter Dwayne Bremer. Officers Gex’s and Grimsley’s account of that day conflicts with Roche’s and Judge Carver’s. Also, Prosecutor Anderson’s testimony differs from Judge Carver’s in several key respects.

1110. Officers Gex and Grimsley testified that they were subpoenaed and arrived at the courthouse at approximately 9:30 a.m. for the 10:00 a.m. docket call. The Marine Patrol Official Radio Log shows that Officer Gex went “10-6” (off the patrol radio) in the Hancock County Justice Court at 9:27 a.m. and that Officer Grimsley did likewise at 9:34 a.m. The log showed that Officers Gex and Grimsley went back on at 11:51 a.m. and 12:51 p.m., respectively.

[968]*968¶ 11. Officer Gex stated that he sat inside the courtroom next to Bremer, his old college dorm-mate. Bremer left before the 10:00 a.m. docket but recalled seeing Officer Gex that morning. Meanwhile, Officer Grimsley moved back and forth between the courtroom and the clerk’s office throughout the morning. Officer Grimsley said that he saw Roche’s name on the copy of the of the 10:00 a.m. docket that Prosecutor Anderson kept on his desk.

¶ 12. Officer Gex testified that he did not hear Roche respond when his name was called during the 10:00 a.m. docket call. Further, neither Officer Gex nor Officer Grimsley saw Roche in the courtroom that morning.

¶ 13. After the docket call, Officer Gex went to Prosecutor Anderson’s desk and saw that Prosecutor Anderson had marked “NS” for “no show” beside Roche’s name. Later, Judge Carver asked the two officers why they were in court. When the officers told him they were in court for the Roche case, Judge Carver said that that case had to be reset for trial because Roche was related to a former justice court judge. Officer Gex testified that Judge Carver had reset trial for July 12, 2011. So Officer Gex wrote “July 12th” on the back of one of the tickets.

¶ 14. Roche, on the other hand, said that he arrived in court at 8:30 a.m. on May 10. Roche said that he “just hollered not guilty when [Judge Carver] called his name and that was it.” It is unclear from Roche’s testimony whether he responded both when his name was called at the 10:00 a.m. docket and when his case was called for trial. In a signed statement, however, Roche said he responded in both instances.

¶ 15. Judge Carver testified that Roche was present when his case was called for trial but that Officers Gex and Grimsley were not. He said that Prosecutor Anderson was not in the courtroom at that time either. Thus, once the clerk confirmed that the officers had been subpoenaed, Judge Carver dismissed the tickets.

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107 So. 3d 964, 2013 WL 540431, 2013 Miss. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-commission-on-judicial-performance-v-carver-miss-2013.