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DA, judge feud over trial ‘deal’

After his office was accused of misconduct in the prosecution ofa recent murder trial, District Attorney Dee Bates is asking JudgeMike Taylor to reconsider a ruling granting a new trial and is alsorequesting the judge recuse himself from the case altogether.

The March 31 prosecutorial misconduct charge came on the sameday Taylor overturned the conviction of accused murderer MichaelLeggett on a motion from Leggett’s defense attorneys Joe Fernaldand Jason Tate.

Leggett, 33, was found guilty in the murder of Jewel DuaneDouglas after a four-day trial. The next week co-defendant MarkCulbertson, who had testified in Leggett’s trial, pleaded guilty tomanslaughter and was sentenced to 17 years for his role in thecrime.

Taylor based his order to overturn the verdict on the premisethat Leggett was not given a fair trial because in his opinion, thejury was misled, the opposing council was not given all theinformation they needed, and numerous other charges that amountedto miscarriage of justice.

“Constitutions, rules of professional conduct, uniform rules ofcircuit and county court practice, oaths, and even the most basicrules of decency and fair play were trampled by the state,” thejudge wrote on March 31.

Bates filed a motion April 3 to reconsider the court’s ruling onthe defendant’s motion for a new trial, and one on April 4 askingTaylor to recuse himself from the case.

In his motion, Bates described Taylor’s demeanor during ahearing on a defense motion for a new trial, saying the judge’smanner of delivery implied he never believed numerous claims by thestate and other witnesses that a deal was never made withCulbertson in return for his testimony.

Bates also pointed to the fact that Taylor’s 14-page order wasproduced in around 30 minutes, writing in his motion that it”lead(s) the state to the conclusion that the court’s decision inthis matter was determined prior to the hearing on March 31, 2008and was not based upon the evidence produced at said hearing or atthe previous trial of the defendant.”

One major premise stated by Taylor for his ruling overturningLeggett’s conviction was that the prosecution was not forthcomingon what the court believed was a deal made with Culbertson based onhis testimony.

Bates and members of his office said a deal was never made withCulbertson. Bates said the decision to amend his indictment tomanslaughter was made the Sunday after Leggett’s trial upon hearingcomplete testimony and speaking to members of the Douglasfamily.

“This is not a case about a deal not being revealed,” Bateswrote. “As set forth in the court’s order, the evidence was thatthere was no explicit or implicit deal; no tacit understanding.There was no deal. There was never any showing of any deal offeredin exchange for Culbertson’s testimony.”

Bates admitted there were questions about why Culbertson wouldpotentially incriminate himself by testifying.

“Another consideration is repentance, can a witness be motivatedby a desire to mitigate his wrongs by doing the right thing?” Bateswrote. “But the ultimate question was whether there was a deal, andclearly there was not.

“Simply put, the prosecutor could not reveal a deal that did notexist, and likewise she (Assistant District Attorney Diane Jones)could not have committed prosecutorial misconduct for not revealingsaid non-existent deal.”

Citing case law stating the prosecutor has leeway on whatcharges are given against someone accused of a crime, Bates saidthe decision to amend Culbertson’s indictment was in fact Jones’prerogative.

“The area between probable cause and proof beyond a reasonabledoubt is what is called prosecutorial discretion … When courtsattempt to usurp the discretion granted prosecutors they end upwith situations such as the one now before this court,” Bateswrote. “Where one defendant who was willing to acknowledge his rolein a horrible crime and aid the State of Mississippi in prosecutinga co-defendant is sentenced to serve 20 years in the custody of theDepartment of Corrections, and the other defendant is no longer aconvicted murderer.”

In the motion for Taylor’s recusal, Bates asserts that “Taylor’simpartiality in this case could clearly be questioned by areasonable person knowing all the circumstances.”

Included was an affidavit from Jones saying Taylor did not seemto believe the prosecution was not guilty of hiding a deal and thatit had lied to the court and defense counsel when saying there wasno deal.

“Although the transcript cannot possibly reflect it, JudgeTaylor’s tone was condescending and vicious,” Jones said in heraffidavit.

Taylor’s finding of prosecutorial misconduct will go to theMississippi Bar’s Committee on Professional Responsibility, whichwill meet for its next quarterly meeting on June 20.

Leggett is scheduled to face a new trial Sept. 32.