Criminal Appeals Clinic
The Criminal Appeals Program offers advanced appellate training in the highly specialized area of appellate advocacy skills and provides third-year students with practical experience in criminal law and procedure. The students represent indigent persons as counsel of record in Mississippi appellate courts. The clinic also provides students with classroom instruction on the essential components of criminal appellate practice, including the review of trial documents, exhibits, and transcripts; development of the facts of the case; evaluation of the issues and research of legal arguments; instruction in the “fact-centered” method of brief-writing; and the presentation of oral arguments.
Many of the students who pass through the Criminal Appeals Clinic compare their experience to an apprenticeship, although they never use that word. They regard the Clinic as a professional, rather than a traditional professor/student, relationship that is intuitively more collaborative than competitive. This view of the course of study transforms their focus to problem-solving in real cases through working within with the case teams under the supervision of a clinical professor. The opportunity to teach, collaborate with, and mentor these students has lead me to believe the clinical dynamic guides them to a shorter transition time from being a law student to becoming a lawyer.
SymposiumWhen the Criminal Appeals Program (CAP) was established by the NCJRL at The University of Mississippi School of Law in 2002, one of the primary goals established by the Center for the CAP was to publish a symposium edition of the Mississippi Law Journal to demonstrate to other law schools across the country the all-around educational value of offering a criminal appeals clinic within their general curriculum. The symposium issue was published in a Spring 2006 special edition of the Journal (75 Miss. L.J. 645-915) and concentrates on the “nuts and bolts” of creating and maintaining an appellate clinic at other law schools, strives to provide insights from the bench to appraise the advantages of this highly specialized training to law students, and outlines specific programs, techniques, and examples that have been successfully employed in other law school’s appellate clinics throughout the country.
Criminal Appeals Symposium Articles
The CAP Symposium Issue articles were published in a 2006 Special Edition of the Mississippi Law Journal and may be found at 75 Miss. L.J. 645-915.
Thomas K. Clancy, Director, National Center for Justice and the Rule of Law, The University of Mississippi School of Law
Perspective from the Bench
Hon. Ruggero J. Aldisert, Senior Circuit Judge, Third Circuit Court of Appeals
A Model Program for Creating and Maintaining a Criminal Appeals Clinic at your Law School: More Bang for Your Buck
Phillip W. Broadhead, Director and Clinical Professor, Criminal Appeals Program, The University of Mississippi School of Law
The Clinic as a Public Interest Law Office
Thomas F. Geraghty, Director of Clinical Programs, Northwestern University School of Law
Special Challenges for Rural Law School Criminal Appeals Clinics
Diane Courselle, Professor of Law, Defender Aid Clinic, University of Wyoming School of Law
Ethical Considerations for the Clinical Director: Balancing Education With Effective Representation
J. Thomas Sullivan, Professor of Law, University of Arkansas at Little Rock School of Law
Confessions of a Public Defender Turned Criminal Appeals Clinic Professor
Howard K. Blumberg, Assistant Public Defender/Adjunct Professor of Law, Appellate Litigation Clinic, St. Thomas University School of Law (Miami, FL)
The Evolution Through Experience of Criminal Clinics: The Remington Clinical Center
John Pray and Keith Findley, Professors of Law, Criminal Appeals Project, University of Wisconsin School of Law.
The New Hampshire Appellate Defender Program: An Apprenticeship Clinic
Christopher M. Johnson, Chief Appellate Defender and Professor of Law, Appellate Defender Program, Franklin Pierce Law Center (NH)
On the Value of Prison Visits with Incarcerated Clients Represented on Appeal by a Law School Criminal Defense Clinic
Timothy H. Everett, Clinical Professor, University of Connecticut School of Law
Oral Argument: The Student Advocate
Michael Vitiello, Professor of Law, University of the Pacific School of Law.
Oral ArgumentsThe Criminal Appeals Clinic students have presented approximately twenty-five oral arguments since 2002, but the official repository of the Mississippi Supreme Court contains only these arguments:
Thomas G. Flynt vs. State of Mississippi, 2013-KA-01973-SCT: http://courts.ms.gov/appellate_courts/sc/oawebcasts.php?vid=UB_Jhn8ioWc/
Marvin Kirk v. State of Mississippi, 2013-KA-01742-SCT https://www.youtube.com/watch?v=L04ydR47Gmo
Brandon Q. Gales v. State of Mississippi, 2013-KA-00435-SCT http://judicial.mc.edu/case.php?id=1122391
Jay Beasley v. State of Mississippi, 2009-KA-00650-COA http://judicial.mc.edu/case.php?id=21270
Tyshunna Cooper Ross v. State of Mississippi, 2009-KA-00797-COA –http://judicial.mc.edu/case.php?id=20058
Loni Marie Rutland v. State of Mississippi, 2008-KA-01544-COA –http://judicial.mc.edu/case.php?id=19314
Quintin Williams a/k/a Quintin Lamar Williams v. State of Mississippi, 2008-KA-00630-COA – http://judicial.mc.edu/case.php?id=19313
Douglas Duvall Hill v. State of Mississippi, 2007-KA-01527-COA (audio only)http://judicial.mc.edu/case.php?id=15221
Thomas Lee Brown v. State of Mississippi, 2006-KA-00979-COA –http://judicial.mc.edu/case.php?id=15152
Sedrick Rayford v. State of Mississippi, 2003-KA-01660-COA –http://judicial.mc.edu/case.php?id=1039
Johnny Berry v. State of Mississippi, 2003-KA-01181-COA –http://judicial.mc.edu/case.php?id=1042
Zacharia Chase Dambrell v. State of Mississippi, 2002-KA-01260-COA –http://judicial.mc.edu/case.php?id=1050
On November 8, 2016, the Court of Appeals of Mississippi reversed the case of Jeremiah Allen a/k/a Jeremiah F. Allen v. State of Mississippi, No. 2015-KA-00506-COA, on grounds that “a defendant is entitled to submit evidence and have the jury pass upon the factual issues of its truth and voluntariness and upon its weight and credibility.” The Court further held, “While we find that the confession was properly admitted, the trial court did err in denying Allen the opportunity to present evidence to the jury attacking the confession’s truthfulness. This error denied Allen a fair trial, and so we reverse his convictions and remand the case for a new trial.” Student/Lawyers Sean Boers and Jillian Chance (Class of 2015) wrote the brief of the Appellant. Read the opinion.
On October 26, 2016, the Mississippi Supreme Court reversed the case of Donald Bell a/k/a Donald Wayne Bell v. State of Mississippi, No. 2015-KA-00643-SCT, on grounds that the trial judge’s comments to the jury after they announced they were deadlocked were improper, and deviated from the procedures dictated in Sharplin v. State. “Sharplin curbs loose language from a trial judge which may have an unwitting coercive effect or influence on a juror. Without assigning an impermissible intent to the trial judge, we find his comments to the jurors before sending them back for further deliberations could be interpreted as improperly coercive and designed to produce a verdict. Therefore, we reverse Bell’s conviction and remand for a new trial.” Student/Lawyers Valerie Moss and Phillip Summa (Class of 2015) wrote the brief of the Appellant. Read the opinion.
On April 26, 2015, the Court of Appeals of Mississippi reversed the case of Silvia v. State on grounds that trial court’s failure to make on-the-record findings of act and conclusions of law concerning Silvia’s competence to stand trial prior to commencing the case. “In this case, it is clear the trial court ordered the mental examination to determine whether Silvia was ‘mentally competent to stand trial and to make a rational defense, and whether . . . he was mentally capable of distinguishing between right and wrong’ at the time he committed the crime. The trial court attempted to schedule the competency hearing, but for reasons unclear in the record, the hearing never occurred. Accordingly, we must reverse and remand for a competency hearing and, if Silvia is found competent to stand trial, a new trial.” Student/Lawyers Irving Jones and John Ayers (Class of 2014) wrote the brief of the Appellant. Link to opinion: 2013-KA-01510-COA
On October 29, 2013, the Court of Appeals of Mississippi reversed the case of Anthony Carothers v. State on grounds that the prosecution improperly attempted to impeach its own complaining witness’ testimony. “A review of the record indicates that Sheena’s testimony from the bond hearing essentially mirrors her testimony at trial. Additionally, no blatant hostile behavior had been exhibited at the trial prior to the State’s request that Sheena be treated as a hostile witness. We find that the State did not lay the proper foundation for proving that Sheena was a hostile witness. Accordingly, the circuit court committed error in deeming her an adverse or hostile witness.” Student/Lawyers Adrienne S. Moore and Rashawn N. Jones (Class of 2012) wrote the brief of the Appellant. Link to opinion: http://courts.ms.gov/Images/HDList/..%5COpinions%5CCO87318.pdf
On October 17, 2013, the Mississippi Supreme Court reversed the case of Rodrique Deshaun Watson v. State on grounds that the jury was erroneously instructed that evidence of entering an open garage does not constitute a “constructive breaking” under the Court’s interpretation of the burglary statute. “The Ladd court overruled its previous holding in Chaney, stating that the case was “wrongly decided.” We agree with the Court of Appeals in Ladd, that merely walking through an open door does not satisfy the ‘breaking’ requirement for burglary of a dwelling. Because the jury was improperly instructed on the requirements for satisfying the “breaking” element of burglary of a dwelling, we reverse and remand for a new trial.” Student/Lawyers Ben C. Lewis and Laci McCullough Bonner (Class of 2013) wrote the brief of the Appellant. Link to opinion: http://courts.ms.gov/Images/HDList/..%5COpinions%5CCO87041.pdf
On January 31, 2013, the Mississippi Supreme Court reversed the case of Donald Mitchell v. State on grounds that the trial court erred by admitting evidence of Mitchell’s prior convictions for possession of marijuana and cocaine in violation of Mississippi Rule of Evidence 404(b). In remanding the case for a new trial, the Court held, “[t]o allow a party to attempt to prove that a person acted in accordance with a certain character trait ‘is to prejudice the person, to render him in the eyes of jurors liable, not because of what he did or did not do in the instant case, but because of what he has done or failed to do in the past.’” Student/Lawyers Ben Rowley and Rebecca Wright (Class of 2012) wrote the brief of the Appellant. Link to opinion: http://courts.ms.gov/Images/HDList/..%5COpinions%5CCO81622.pdf
On December 2, 2010, the Supreme Court of Mississippi reversed and remanded the case of James C. Newell, Jr. v. State on grounds that “[t]he trial court committed reversible error in one of its evidentiary rulings [a toxicology report] and in refusing one of Newell’s requested jury instructions on the newly revised statutory presumption under the “Castle Doctrine.”. . . We hold that the jury should have been instructed that, if it believed Newell’s version of the events surrounding his altercation with Boyette, then it should presume that Newell used defensive force against Boyette because he “reasonably feared imminent death or great bodily harm, or the commission of a felony upon him . . . or against the vehicle which he was occupying . . . .” Miss. Code Ann. § 97-3-15(3) (Rev. 2006). . . So the refusal of instruction D-22 necessitates a new trial.” Student/Lawyers John Baker and Jamiel Wiggins (Class of ’10) wrote the Brief of the Appellant. Link to decision: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO64409.pdf
On March 25, 2010, the Supreme Court of Mississippi reversed and rendered the case of Vincent Carnell Hudson v. State on grounds that “[t]his certiorari review arises from Vincent Hudson’s conviction of possession of a ‘trace’ amount of cocaine found in his clothes. Because the evidence introduced at trial was insufficient to show that he knew the cocaine was present and that he consciously and intentionally had possessed it, we reverse and render Hudson’s conviction and the Winston County Circuit Court’s imposition upon him of a life sentence without the possibility of parole. . . Because the State did not prove beyond a reasonable doubt that Vincent Hudson was aware of the presence and character of the ‘trace’ amount of cocaine in his pockets, or that he consciously and intentionally possessed it, the evidence put forth at trial was insufficient to support his conviction for possession of the cocaine. Therefore, we reverse the Court of Appeals and reverse and render Hudson’s conviction and sentence and order him discharged.” Student/Lawyers Tameika Cooper and Harriett Johnson (Class of ’08) wrote the Brief of the Appellant. Link to decision: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO61747.pdf
On December 9, 2008, the Court of Appeals of Mississippi affirmed the case of Annie Ivory v. State, in which the Criminal Appeals Clinic was ordered to file an Amicus Curiae brief on the issue of “what effect the expiration and re-enactment of the statute governing the Intensive Supervision Program (ISP) as it relates to the claim that the Appellant received an illegal sentence and, if the application of the statute failed to comport with her rights, what remedy is appropriate.” The Court adopted the position of the clinic’s brief and held that although she was not entitled to probation, the circuit court’s sentencing decision was not “illegal” because “[p]resumptively, had Ivory completed the ISP, the circuit court would have then resentenced her and suspended the remaining fifteen years of Ivory’s sentence. Regrettably, Ivory never made it to that point.” Student/Lawyers Angela Gallagher and Jay Hurdle (Class of ’07) wrote the brief on behalf of the Clinic. Link to decision: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO53296.pdf
On November 12, 2008, the Court of Appeals of Mississippi reversed and remanded for a new trial the case of David Brooks v. State on grounds that “the amendments to the indictments [made immediately before trial removing the ‘overt act’ language of an attempted aggravated assault] were in error, and that the trial court should have granted Brooks’s proposed jury instruction as to the lesser non-included offense of reckless driving.” Student/Lawyers Jennifer Suzanne Forman and Christi Gammage (Class of ’07) wrote the Brief of the Appellant and Andrew Drew Lewis and Daniel McLeroy (Class of ’07) presented oral argument in the case. Link to decision: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO52453.pdf The Court of Appeals decision in the Brooks case was affirmed in part, reversed in part, and remanded to the Oktibbeha County Circuit Court for a new trial by the Mississippi Supreme Court by a grant of a writ of certiorari on October 8, 2009, on grounds that “If the jury found that Brooks did intend to injure the officers, he would be guilty of aggravated assault based on his attempt to do so. However, if the jury found that Brooks did not intend to injure the officers, he would be not guilty of aggravated assault but guilty of reckless driving. The two crimes require proof of different elements, and the jury should have been given a choice between them. Thus, we agree with the Court of Appeals and hold that, based on the evidence presented at trial, Brooks should have been allowed to instruct the jury as to the lesser, nonincluded offense of reckless driving.” The Mississippi Supreme Court also specifically overruled a long line of cases concerning the amendment of attempt indictments. Link to decision:http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO58306.pdf
On October 7, 2008, the Court of Appeals of Mississippi reversed the case of Van Gray v. State, in which the Criminal Appeals Clinic was ordered to file an Amicus Curiae brief on the issue of “whether a change in the law regarding which offenders are eligible for trusty-earned time constitutes a prohibited ex post facto application of the law.” The Court adopted the position of the clinic’s brief and remanded the case to the circuit court for and evidentiary hearing on the prisoner’s post-conviction petition. Student/Lawyers Jennifer Forman, Melissa Graves, and Nakesha McQuirter (Class of ’07) wrote the brief on behalf of the Clinic. Link to decision: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO51050.pdf
On September 9, 2008, the Court of Appeals of Mississippi reversed and remanded for a new trial the case of Raymond L. Pannell v. State on grounds that his “Fifth and Sixth Amendment rights to counsel were violated by a police-initiated interrogation, which resulted in Pannell’s confession and occurred after Pannell asserted his right to have counsel present during questioning. For this reason, the confession, which was made without the benefit of counsel, should have been suppressed.” Student/Lawyers Casey L. Butts and Clare Smith Rush (Class of ’07) wrote the Brief of the Appellant. Link to decision: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO49101.pdf
On September 2, 2008, the Court of Appeals of Mississippi reversed and rendered the case of Derrick Luckett v. State on grounds that the prosecution failed to establish a legally sufficient case of embezzlement in a case involving a stolen vehicle from an automobile dealership at which the Appellant worked. The Court found “[a]t best, the evidence presented by the prosecution might have shown the actual theft of property, but it did not prove embezzlement.” Student/Lawyers Lane Campbell and Debra Giles (Class of ’08) wrote the Brief of the Appellant and Angela Gallagher and Jay Hurdle (Class of ’08) argued the case. Link to decision: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO50918.pdf
On June 26, 2008, the Mississippi Supreme Court reversed and remanded for a new trial the case of Kenneth Brown v. State on grounds that the prosecuting attorney made “numerous inappropriate statements to the jury during closing argument” when “the prosecutor argued with the trial judge, falsely representing to her that every decision from this Court allowed him to make ‘send-a-message’ arguments to the jury.” Student/Lawyers Will Montgomery and Rebecca Gurner (Class of ’07) wrote the Brief of the Appellant. Link to decision: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO49592.pdf
On May 17, 2007, the Mississippi Supreme Court reversed and remanded for a new trial the case of Tabitha Miller v. State on grounds that her self-defense theory was not allowed to be fully presented to the jury through the testimony by police officers of the prior instances of domestic abuse committed against the appellant by the deceased, thereby depriving her of a fair trial. Student/Lawyers Teri Covington and William Hicky (Class of ‘07) wrote the Brief of the Appellant. Link to decision: http://www.mssc.state.ms.us/Images/Opinions/CO41430.pdf
On August 11, 2005, the Mississippi Supreme Court reversed Ardes Johnson v. State, remanding it for a new trial on grounds that two instructions on self-defense and “pre-arming” did not correctly state the law to the jury for their deliberations on the charge of murder. Student/Lawyers Tiffany Kilpatrick and Douglas Jennings, (Class of ’05) wrote the Brief of the Appellant . Link to decision:http://www.mssc.state.ms.us/Images/HDList/..%5COPINIONS%5CCO27989.PDF After the re-trial, the Mississippi Supreme Court reversed and rendered the case on July 31, 2008, thereby discharging Mr. Johnson from the penitentiary, holding that the Appellant had conclusively established necessary self-defense in the killing under the Weathersby rule, a “longstanding, seldom-applied, legal doctrine. . .” Link to the opinion: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO49972.pdf
On June 27, 2004, the Mississippi Supreme Court reversed and remanded for a new trial the case of Freddie Walker v. State on grounds that physical evidence admitted by the trial court over defense objection was irrelevant, highly prejudicial, and deprived the client of a fair trial. The Brief of the Appellant was written by Student/Lawyer Carl D. Gordon (Class of ’03). Link to opinion: http://www.mssc.state.ms.us/Images/Opinions/CO17328.pdf
On May 25, 2004, the Court of Appeals of Mississippi reversed and rendered Zacharia Dambrell v. State because the evidence failed to show that a weapon was “exhibited,” as defined by prior Mississippi case law. The Mississippi Supreme Court subsequently reversed the decision of the Court of Appeals, specifically overruling the 1999 case ofGibby v. State, which required “a victim must have definite knowledge that a deadly weapon exists to uphold a conviction.” Link to the decision: http://www.mssc.state.ms.us/Images/OPINIONS/CO23318.PDF