Mississippi Com'n of Judicial Performance v. Russell

• Decision Date: 06 February 1997
• Docket Number: No. 96-CC-00507-SCT,96-CC-00507-SCT
• Citation: 691 So.2d 929
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Frank A. RUSSELL.
• Court: Mississippi Supreme Court

Page 929

691 So.2d 929

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Frank A. RUSSELL.

No. 96-CC-00507-SCT.

Supreme Court of Mississippi.

Feb. 6, 1997.

Luther T. Brantley, III, Jackson, for petitioner.

Jim Waide, Tupelo, for respondent.

En Banc.

SMITH, Justice, for the Court:

On November 21, 1994, the Mississippi Commission on Judicial Performance filed a formal complaint charging Judge Frank Russell, circuit judge of the First Circuit Court District, with judicial misconduct. Judge Russell has served as a circuit court judge since 1984. The Commission charged that Judge Russell violated Section 177A of the Mississippi Constitution of 1890 as amended; Miss.Code Ann. §§ 47-5-110; 99-37-19; Lewis v. State, 414 So.2d 435 (Miss.1982) and Canons 1, 2A, 2B, 3A (1)(4) and 3(B) of the Code of Judicial Conduct.

The allegations of misconduct arise from the post-sentencing release of four (4) prisoners. A three-member panel heard the matter on August 7-8, 1995, and found that Judge Russell's conduct warranted a public reprimand. On May 12, 1996, the full Commission unanimously adopted the findings of the hearing panel and recommended a public reprimand and monetary fine of $ 1,500.00. Because the facts herein are relatively uncontroverted and the statutes and case law very clear on the subject matter, this Court affirms the Commission.

STATEMENT OF THE FACTS

Onnie Phillips Calcote detailed her story in a document titled "Mother's Narrative" and forwarded the same to Luther T. Brantley and the Mississippi Commission on Judicial Performance (hereinafter "Commission"). Contained within the documents were details concerning the release of Robert Daniel Parham, who pled guilty to manslaughter in the 1990 death of Mrs. Calcote's daughter, Cynthia Helen Calcote. Calcote's complaint and the accompanying letter began the inquiry into certain actions by Judge Russell.

The Commission filed a formal complaint against Judge Russell on November 11, 1994 charging that Judge Russell committed judicial misconduct in violation of § 177A of the Mississippi Constitution of 1890; Miss.Code Ann. §§ 47-5-110; 99-37-19; Lewis v. State, 414 So.2d 435 (Miss.1982); and Canons 1, 2A, 2B, 3A(1), 3A(4) and 3B(1) of the Code of Judicial Conduct of Mississippi Judges. The charges against Judge Russell stem from the post-sentencing release of four inmates after the term of court during which they were sentenced. The Commission charged that Judge Russell, acting in his official capacity, entered both original and Nunc Pro Tunc orders which suspended the sentences of prisoners who were under the jurisdiction of the Mississippi Department of Corrections (hereinafter "MDOC"). Moreover, the Commission charged that Judge Russell entered these orders with full knowledge that he lacked both the authority and jurisdiction to do so.

On August 7-8, 1995, a three-member panel conducted hearings at the Law Center in University, Mississippi. The tribunal members sitting for the Mississippi Commission on Judicial Performance included Honorable Billy Joe Landrum, Honorable Frank M. Coleman, and Erik M. Lowrey, Esq. Wyatt Collins and Luther T. Brantley, III represented the Commission at this hearing. Thomas E. Childs, Jr. represented Judge Russell.

Judge Russell argued that he did not act in bad faith because he acted pursuant to Miss.Code Ann. § 47-7-47 (1972). Judge Russell testified that the methods utilized by him to release prisoners are common practice among other circuit judges in the state. This testimony was corroborated by many individuals who testified in depositions which were admitted into evidence. In addition, Judge Russell made a proffer of MDOC statistical information which detailed cases over the last five years wherein an inmate had been released after the expiration of 180 days.

The panel rendered its Findings and Conclusions of Law on March 8, 1996 wherein it concluded that the actions of Judge Russell constituted "willful judicial misconduct prejudicial to the administration of justice which brings the judicial office into disrepute" and recommended that Judge Russell receive a public reprimand. The facts and circumstances of each of the four cases before the Commission are set forth in the following summaries.

ROYCE KEMP

The first case upon which the Commission bases its charges is that of Royce Kemp. Kemp was tried and convicted of the murder of his mother in 1976 and on October 12, 1976, was sentenced to life in prison by then Circuit Judge Neal Biggers. This Court affirmed Kemp's conviction on November 17, 1977. See Kemp v. State, 352 So.2d 446 (Miss.1977). Kemp was later paroled and remained free until May 2,1990. Kemp's parole was revoked after Mike LaRue, Kemp's parole officer, substantiated reports that Kemp had been using alcohol and was in possession of firearms in violation of Miss.Code Ann. § 97-37-5 (1972).

Despite the revocation by the Parole Board, Judge Russell entered an order on May 18, 1990 which suspended the remainder of Kemp's sentence and released him from jail. This order was entered on the court's own motion. Three days later, on May 21, 1990, Judge Russell rescinded the May 18, 1990 order. However, on January 9, 1991, Judge Russell, again sua sponte, suspended Kemp's sentence. After the Attorney General's Office filed a Petition to Vacate Void Orders, Judge Russell, on June 7, 1991 ordered Kemp incarcerated.

Judge Russell argued that he took action in the Kemp case because he believed Kemp's constitutional rights were violated. Judge Russell testified that he believed Mr. Kemp was charged with a crime which was impossible for Kemp to commit and that evidence of the "crime" had been acquired during an illegal search and seizure by parole officer Mike LaRue.

Judge Russell testified that the Sheriff of the county and two deputy sheriffs explained to him that while Kemp was in jail on a parole revocation charge, Mike LaRue, the parole officer, entered Kemp's house without a search warrant. LaRue seized firearms located in the house and charged Kemp with Judge Russell testified that law enforcement, the MDOC area supervisor, and the District Attorney agreed to Kemp's release. Although the District Attorney would not sign the order, he did not oppose it. However, Judge Russell admits that no hearing was conducted nor did Kemp's attorney participate in the decision to release Kemp.

                a violation of Miss.Code Ann. § 97-37-5.  Judge Russell testified that he believed Mr. Kemp could not be charged with this crime "because at that time, in 1990, Mississippi did not have a law that made it against the law for a felon to possess a weapon."   In addition, Judge Russell testified that Kemp was being charged with "possession of a concealed weapon on his person ... at a time when the weapon was miles away from where Kemp was ... He was locked up in jail ... It wasn't anywhere near his person, much less concealed in whole or in part on his person."   Thus, Judge Russell, entered the order suspending Kemp's sentence.  Judge Russell later testified  "... [I]f I see a constitutional right being violated, if it's in court or if it's out here on the street, or someone is being abused, I'm going to do what I can to correct it."
                

Sanford Whitehurst, a deputy sheriff in Alcorn county and Kemp's uncle, gave deposition testimony regarding the Kemp matter. Whitehurst testified that Judge Russell stated that he would not take any action in the Kemp matter unless "everyone is involved" and at no time did Judge Russell state that he did not have the authority to suspend Kemp's sentence. Harold Monroe, another deputy sheriff and court bailiff, also gave testimony. Monroe testified that it was he who initially approached Judge Russell about Kemp. However, Monroe testified that Judge Russell stated "he couldn't do it ... Parchman had to do it."

Mike LaRue, Kemp's parole officer, testified that he received a report from Kemp's relatives that Kemp was drinking and had firearms. When he arrived at Kemp's father's home, Kemp appeared to be intoxicated, however, he gave LaRue verbal permission to search his house which was located about five to six miles away. When the key provided to LaRue did not work, LaRue entered the house by climbing through a window and found the firearms in a chest of drawers. Kemp's parole was later revoked.

CHESTER SHOOK

Chester Shook pled guilty to two counts of possession of a controlled substance with intent to distribute on November 12, 1993. On that same day, Judge Russell sentenced Shook to four years on one count and two years on the other, to run concurrently. After Judge Russell sentenced Shook to the penitentiary, he was inundated with telephone calls from Shook's daughter, Pat Hall. Hall repeatedly called because she was concerned about her father's mental and physical health while at Parchman.

Hall testified that she had spoken with Suzi Steiger, a case manager supervisor at Parchman, who conducts inmate evaluations and at times sends reports on inmates to judges throughout Mississippi. Steiger testified that Shook, a sixty-seven year old inmate, was not doing well mentally or emotionally while at Parchman and would better served by being released. Steiger testified that she urged Hall to contact Judge Russell.

On May 9, 1994, Judge Russell entered a nunc pro tunc order suspending Shook's sentence. Judge Russell gave the orders to Shook's daughter to be filed. Judge Russell consistently maintained that he acted pursuant to Miss.Code Ann. § 47-7-47. However, Judge Russell admitted that no mention of "shock probation" was made at the original sentencing hearing nor did the original sentencing order reserve the right to judicial review.

Judge Russell further testified that he suspended Shook's sentence after he was informed by Hall that Shook had lost 30 pounds, was 67 years of age, and had a cancerous tumor. Judge Russell later confirmed this information by contacting Ms. Steiger at Parchman....