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Posted March 2020My tenure with the federal court began in 1997, but I still call myself a Recovering Litigator. The ten years that I practiced with Thomas, Price, Alston, Jones & Davis provided enough “excitement” (read: “stress”) for a lifetime, even though my involvement was pretty much to keep the second chair seat warm, carry the partner’s briefcase, and order lunch. I was fortunate to be on the winning side of one of the first cases in Mississippi involving an EPA-designated Superfund Site and also in a libel case where we represented Newsweek magazine. I’m not sure it was fortunate, but it was definitely interesting, to represent the National Iranian Oil Company in a lawsuit over assets that had been frozen during the hostage crisis, and I appeared in one sentencing hearing in a death penalty case.
The highpoint of my legal life, however, came in the spring of 1990 and involved another media client, Gannett River States Publishing Company, which owns The Clarion Ledger. I had just come back from maternity leave, and the partner who ordinarily handled matters for the newspaper, Leonard Van Slyke, was out of town. A call came in from one of the editors, who reported that a proceeding in a criminal trial in the Delta was going to be closed to the press and the public, and the editor asked me to make an appearance on behalf of the newspaper to oppose the closure.
A brief summary of the facts of the case should appear here. The victims were a rural white farm family in Quitman County — mother, father, 12-year-old son and 9-year old daughter. Responding to a report of a fire, members of a volunteer fire department entered the family home and found three of the four family members dead. The father and son had been bound and shot twice. The daughter had been raped, shot three times, and left to die of smoke inhalation. The wife’s body was found much later, burnt beyond recognition. Two black men, Robert Simon and Anthony Carr, were arrested for the crime, and the proceeding that was to be closed was their initial appearance. Community feelings were high, and the lawyers may have felt safer in a courtroom where attendance was limited.
Closure of trial proceedings had been an issue in the earlier prosecution of Marion Albert “Mad Dog” Pruett. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163 (Miss. 1987). Based on that experience, as well as others, I knew that the issue would likely move quickly and that I would be on my own miles from Jackson. Keep in mind that this was occurring well before cell phones and electronic filing were commonplace. As a precautionary measure, I called the then-Administrator of the Mississippi Supreme Court to ask whether the court would entertain an emergency motion filed via fax. She said that would be permissible.
So what happened at the preliminary hearing in Quitman County? Here’s a brief synopsis from the Mississippi Supreme Court, quoted from a later murder case in which closure was sought:
Earlier this year, this Court confronted a similar situation in State v. Carr and State v. Simon in Quitman County. In that instance, a preliminary hearing involving both Simon and Carr was closed by a Quitman County Justice Court [sic], including the files and transcript of the preliminary hearing, without a public hearing. On March 14, 1990, this Court remanded the matter to the Quitman County Circuit Court for a hearing as to the appropriateness of closing the preliminary hearing, the transcript, and the files. In re Gannett River States Publishing Co. and Memphis Publishing Co., 90-M-267
Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 944 (Miss. 1990).
Well, that’s the Cliffs Notes version of what occurred. Here’s the rest of the story. I stopped in Indianola to hand my baby girl off to my in-laws and drove to Marks. There was one friendly face in the courtroom, and it belonged to Russell Headrick, attorney for The Commercial Appeal. We were both puzzled by the fact that both defendants were in the courtroom, as were bailiffs and the court reporter, but there was no judge and no lawyers. That mystery was solved a few minutes later when the lawyers and the justice court judge exited chambers, and she took the bench to announce the closure of the courtroom that had been decided behind closed doors.
Without boring everyone on the law regarding closed courtrooms, I can just tell you that’s not the way to do it. I immediately popped up (Russell had not been granted pro hac admission), objected, and gave a brief summary on the law of closure. The judge was, to put it mildly, unimpressed. (Any lawyer from the metro area has probably had the experience of appearing before a judge who has an active dislike of “Jackson lawyers.”) 1 When the judge declined the opportunity to reconsider her order, I asked whether she would briefly stay it, so we could present the issue to the Mississippi Supreme Court by fax. She agreed.
Russell and I bolted for the circuit clerk’s office, where the ladies were gracious enough to give us some paper and loan us a typewriter. We drafted an emergency petition for a writ of mandamus, and Russell took it to one of the two known fax machines in Marks — the one at the bank. He faxed the order, and we waited for what we were sure would be an easy win. Nope. About thirty minutes later, we got word that the petition had been denied. What?? We decided that the problem must have been the lack of evidentiary material, so we executed affidavits and re-filed the motion. Justice was much swifter that time, and we got a denial in about five minutes. Guess which Jackson lawyer had to go back in the courtroom and admit defeat?
We reported the outcome to our respective newspapers, and editors from each of them asked us to contact corporate counsel. So Russell got on the phone with the folks at Scripps Howard and I called Barbara Wall, counsel for Gannett, whose office was in D.C. Barbara asked me whether we wanted to go to the Supreme Court. But we did, gulp, oh you mean that one? Uh… sure. So we gathered up all of the documents, and, since the bank was closed for lunch, Russell took them to the other fax machine in town, located at a social services organization in Marks. (When he got back I offered to pay for half of the cost of sending the fax, and he told me that it was free. Apparently, when he walked in wearing a suit and asking to fax something to Washington, they assumed he was with the Justice Department.) It was so late in the afternoon by then that I knew I’d be spending the night in Indianola, so (remember, no cell phones) I left my in-laws phone number in case anyone needed to contact me.
While we were eating supper, my in-law’s phone rang, and my father-in-law, looking pretty puzzled, handed it to me. On the other end was a law clerk for Justice Byron White. He told me that we needed to file one more document with the state Supreme Court to position our case for review. I wish I could remember what it was, but I didn’t take a copy of the file with me when I left the firm and came to the court, and the Mississippi Supreme Court’s pre-1996 M files have been destroyed. I’m sure there’s a SCOTUS file somewhere, but it’s not available online, probably because it’s in the catacombs under the Library of Congress, in a box with Dolley Madison’s cupcake recipe.
At any rate, I convinced a partner to leave his supper and return to the office. I dictated whatever it was that was requested, and Bill dutifully filed it with a Gartin Building security guard on his way home. When I reported to Justice White’s law clerk that it had been done, he asked me if I thought that the Mississippi Supreme Court would take it up the next day, which was Saturday. I smothered a laugh, but promised the law clerk that I would check. The next day, I called the court administrator at home, who didn’t bother to smother her laugh.
With no ruling by Monday, the U.S. Supreme Court entered an order. Again, I don’t have a copy of it, but it essentially requested that the Mississippi Supreme Court revisit its earlier ruling. As you can see from the earlier quote, the court ultimately did so, and remanded the case to the Circuit Court for review. I’d like to say that the Circuit Judge was warm and accommodating when the media and its attorneys showed up. Unfortunately, it’s one of the two experiences in state court where I believed I was going to jail for the First Amendment, but we did finally get the transcript of the hearing. As a result of this experience, later, in the Hand case, we asked for, and received, a set of procedural guidelines to follow when a party requests closure.
And I got a great war story and a brief ego boost. Barbara once introduced me to lawyers at a First Amendment conference as, “That girl I told you about, who went from Quitman County Justice Court to the United States Supreme Court in an afternoon.” I did, but, sad to say, that was pretty much the apex of my legal career. It’s like being the head cheerleader in high school, with nothing much to show for life after.
So what’s the lesson here? Be respectfully, but boldly tenacious when representing your client. Understand and use technology to your advantage (I’m laughing at myself as I type this). Practice with people who are crazy, or indulgent, enough to leave their dinner table to go on some wild goose chase for an associate. And most of all, from the standpoint of your career satisfaction, don’t peak too early!
