Creating and Selling Malware: Is it a crime?

Professor Orin Kerr, a law professor at George Washington University where he teaches and writes about cybercrime law and criminal procedure and one of the best legal minds in the area of the Fourth Amendment as it relates to the internet, has an interesting piece in the Washington Post about an indictment brought against Marcus Hutchins, a security researcher, for allegedly creating and selling malware.

The indictment was brought in the United States District Court for the Eastern District of Wisconsin. Professor Kerr's article provides his initial analysis of the charges.

New Trial Ordered for State's Discovery Violation

This Mississippi Court of Appeals ordered a new trial for a man in state court.  Judge Wilson, authored the opinion, beginning:

"On appeal, White raises eight issues.  We conclude that White is entitled to a new trial based on his first issue: a clear discovery violation by the State followed by the denial of White's request for a mistrial or continuance.  Just prior to opening statements, the district attorney disclosed that the State possessed approximately ninety-five minutes of recorded phone conversations involving White, and the State intended to introduce unspecified parts of the recordings, including an alleged 'confession,' into evidence at trial.  The recordings had been in the State's possession for two years, but despite a specific discovery request by White, the State had failed to disclose their existence.  The trial judge delayed opening statements just long enough for White's attorney to listen to the recordings but denied White's request for a continuance or mistrial.  Given the State's clear violation of the rules of discovery and the importance of the evidence, we conclude that the denial of a continuance or mistrial was an abuse of discretion, that the error was not harmless, and that White is entitled to a new trial."

The entire opinion is here.  The Clarion Ledger also wrote an article covering the case.

Prior to July 1, 2017, Rule 9.04 of the Uniform Rules of Circuit and County Court covered discovery in criminal cases in Mississippi State Courts.  After July 1, 2017, Rule 17 of the recently enacted Mississippi Rules of Criminal Procedures now applies to discovery in state court criminal cases. United States Supreme Court precedent, such as Brady v. Maryland, 373 U.S. 83 (1963) pertaining to the prosecution's duty to disclose exculpatory and impeachment evidence to a defendant in a criminal case, also apply in state court.

U.S. Attorneys for Northern and Southern Districts of Mississippi Resign in Response to Trump Request

On Friday, March 10, 2017, Gregory K. Davis, U.S. Attorney for the Southern District of Mississippi, and Felicia C. Adams, U.S. Attorney for the Northern District of Mississippi, each submitted their letter of resignation after receiving a call from Attorney General Jeff Sessions requesting their resignations.  

The Clarion-Ledger has the coverage here. 

On December 15, 2016, the Mississippi Supreme Court announced its adoption of a the Mississippi Rules of Criminal Procedure.  For the first time every, a sing, uniform set of rules will apply to criminal procedures in Justice, Municipal, County, and Circuit Courts in Mississippi.  The rules go into effect on July 1, 2017, and they address criminal proceedings in the state courts of Mississippi from arrest through post-trial motions.

Justice Ann Lamar, chair of the Mississippi Supreme Court Rules Committee on Criminal Practice and Procedure, led a six-year effort to create the new rules.  Others on the Rules Committee were Chief Justice Bill Waller, Jr., Justice Jim Kitchens, and Justice James D. Maxwell.  The nine-member Mississippi Supreme Court unanimously adopted the rules.

The Executive Summary of the Mississippi Rules of Criminal Procedure may be found here. The rules in their entirety may be found here.

Decline of the American Jury Trial System

Interesting article by Benjamin Weiser in the New York Times regarding the decline of the trial by jury in the United States.

NFL vs. Brady: The Saga Continues . . . Maybe

Today, the United States Court of Appeals for the Second Circuit handed down its 2-1 decision on the NFL's appeal in the Tom Brady case.  The 2nd Circuit overturned the District Court's decision and reinstated Brady's 4-game suspension which presumably would start at the beginning of the 2016-2017 season.

One of my former law professors, Michael McCann, who is now a professor at the University of New Hampshire School of Law and who writes for Sports Illustrated wrote this piece today on what happens next for Tom Brady and the NFL.

Here's to hoping this case comes in for a landing soon, but you can't help but think Brady's gotten a raw deal.  That said, his labor union, the NFL Players' Association, negotiated the Collective Bargaining Agreement, so the issues at play in this case, Goodell's power over player discipline among others, will be something to look at during next CBA negotiation process begins.

Chris Smith is a partner in the law firm of Smith & Holder, PLLC in Gulfport, Mississippi.  His practice focuses on criminal defense, personal injury litigation, workers' compensation claims, commercial litigation, and civil and criminal appeals.  

Criminal Appeals from Municipal or Justice Courts in Mississippi

The Mississippi Court of Appeals recently addressed a common misconception regarding the unique appeals process of criminal misdemeanor cases in Mississippi. On December 8, 2015, the Court of Appeals handed down its Opinion in the case of Parks v. State, No. 2014-KM-01675-COA.

Cornelius Parks was convicted of a misdemeanor in Kemper County Justice Court.  He attempted to appeal his conviction to the Circuit Court of Kemper County, but the circuit court dismissed his appeal.  Why?  Well, the circuit court found that it did not have jurisdiction to hear the appeal, because it found Mr. Parks failed to perfect his appeal in that he failed to obtain both types of bonds required under the applicable rules.  The Court of Appeals reversed the circuit court, but remanded for further findings.  While the ultimate outcome of that case is yet to be determined, the opinion addresses an issue that comes up a lot in misdemeanor cases in Mississippi:   the difference in an "appearance bond" and a "cost bond."  

Uniform Circuit and County Court Rule 12.02 ("URCCC 12.02") governs appeals of misdemeanor cases from justice or municipal courts in Mississippi.  This Rule requires the person appealing (the "appellant") to file simultaneously "a written notice of appeal, and both a cost bond and an appearance bond (or cash deposit)" within 30 days of the lower court's judgment.

Litigants (and sometimes attorneys) often confuse the difference between a "cost bond" and an "appearance bond," although the difference between the two is very important.  An appearance bond is conditioned upon the appellant's appearance before the court, and if the appellant fails to appear at any time required by the court, the court can dismiss the appeal, and the appearance bond is then forfeited.  A "cost bond" must be posted to cover "all estimated court costs, incurred in both the appellate and lower courts (including, but not limited to fees, court costs, and amounts imposed pursuant to statute)."

Persons accused of misdemeanors in Mississippi who are convicted in either justice court or municipal court should know that they can appeal their conviction from either of those courts to the circuit court of that particular county (or the county court depending on the county).  However, the notice of appeal and both the appearance bond and cost bond must be filed with the circuit clerk within 30 days of the date of conviction in either the justice court or municipal court.  If the appellant perfects his/her appeal within this 30 day period, he/she will get a "trial de novo," which means he/she is entitled to a brand new trial.

This is a unique situation in Mississippi courts as it is different in Florida, where I began my legal career.  A link to the Court of Appeals opinion in Parks v. State may be found here.

Christopher Smith, Esq.
Smith & Holder, PLLC
228-206-7076 (Telephone)
chris@smithholder.com (email)
http://www.smithholder.com