JACKSON Who's ratting out the district attorney? That's just one of many questions swirling around Attorney General Jim Hood's arrest and investigation of Hinds County District Attorney Robert Shuler Smith.
Hood revealed in court filings Friday, Aug. 12, that his office is using both confidential informants and secret recordings of the Hinds County district attorney in its quest to investigate Smith. If the district attorney is found guilty of the violations, he would have to leave office for inappropriate interference with the prosecution of two local men, drug felon-turned-mattress salesman Christopher Butler and Darnell Turner, a long-time campaign worker for powerful local men, including Smith, Frank Melton and Frank Bluntson. If guilty, Smith would also be banned from future public office.
Five of the six counts against Smith, based on a joint FBI-attorney general investigation, were for trying to help Butler, who was out bond for 2012 drug sales and possession—charges that former defense attorney Smith has worked to get dropped, even though he is tasked with prosecuting the cases. The State arrested Butler again early this year for wire fraud and embezzlement while on the job at Mega Mattress in west Jackson.
Hood and the FBI's more shadowy investigative techniques were revealed in an Aug. 12 motion to disqualify Smith's defense counsel, James Waide III, of Tupelo. Waide signed on as Smith's attorney after the DA was arrested at his office on June 22 for six counts of improperly trying to help two men under indictment for various crimes.
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In the six counts, the AG's office accused Smith of various illegal "ex parte communication" with Butler and Turner, including jail visits, helping their defense attorneys and consulting with families on a defense plan. The Mississippi Bar also filed a complaint against Smith in July for improper behavior toward Hinds County Circuit Judge Melvin Priester Sr. and Senior Hinds County Circuit Judge Tomie Green, both of whom have recused from his case along with other Hinds judges.
Smith has routinely made it clear during court hearings that he is trying to free Butler, and is casting his investigation and arrest as a personal vendetta by the attorney general's office and Hinds County Circuit Judge Jeff Weill, who refused to drop the drug case against Butler last year.
No 'Framed' Evidence, Yet
Now, Hood wants defense attorney Waide off Smith's case because, according to the motion, his office has a tape recording of Smith talking to a confidential informant that allegedly proves that the DA had discussed his desires to get Butler off on wire-fraud and embezzlement charges.
"As part of its case-in-chief in this matter," the AG's motion states, "the State intends to offer evidence that Smith had one or more conversations with Attorney Jim Waide regarding Smith's attempts to assist Christopher Butler in connection with the pending charges against Butler."
Butler, 39, is in the Hinds County Detention Center in Raymond with a $500,000 bond since the State arrested him early this year for allegedly committing fraudulent white-collar crimes through his sales manager position at Mega Mattress in west Jackson. He is classified as a habitual offender due to past drug possession and sales convictions, and was out on bond for 2012 drug arrests by the Mississippi Bureau of Narcotics. Smith's office repeatedly delayed that case and tried to drop the charges last year, but Judge Weill wouldn't allow it based on insufficient information in the motions.
An archive of reporting on controversies surrounding Hinds County district attorneys, present and past.
Smith has argued for months that the AG does not have the right to prosecute Butler for the Mega Mattress charges without his blessing as DA, and has repeatedly promised that he and his staff re-investigated the drug case against Butler and has information that could clear him because MBN framed him back in 2012. That alleged evidence has not gone public to date, however.
This week, Hood arraigned Butler for having a "burner" pre-pay cellphone in jail.
Waide filed a motion in response to the attempt to remove him on Aug. 15, saying that Smith will respond at the scheduled Aug. 18 hearing before Special Judge James Bell (that has now been postposted). He also promised his own round of evidence: "Further, defense counsel requests a telephone conference with the Court in order to discuss production of certain witnesses and documents at the hearing."
Reached Monday, Waide told the Jackson Free Press that he could not address the specifics of Hood's statements about him until he is back before a judge. But Waide said that he wasn't surprised at the motion's language. "Yes, I was expecting it, but it's based on something they filed under seal," he said. "I'm going to ask for a hearing this coming Thursday."
Many documents are filed under seal in the case, which The Clarion-Ledger is suing to get open for public inspection.
About That Informant
The AG's motion reveals one way it is surreptitiously investigating Smith in its discussion about Waide. "For example, in one recorded conversation between Smith and a confidential informant," the motion states, "Smith stated the following: 'So we got Jim Waide ...' and 'he [Waide] came down here straight from New Orleans when I called him. ...'"
The motion states that Smith also told the informant, "Oh, we going to get him [Butler] free now between me and Waide and all that, and then Dennis is doing his thing on the other one."
The last name is not in the motion, but "Dennis" may be the attorney representing Turner in his arrests for aggravated assault and domestic violence—Dennis Sweet. Attorney Sanford Knott is representing Butler, and has not returned calls for comment about this and related cases in the last week.
Smith also took a call from Waide, the motion alleged, and afterward told the confidential informant, "That was Jim Waide," and then Smith later said that "he said we have injunctive and declaratory relief," which Hood's office believes was Waide.
The motions do not clarify whether the recordings of Smith's comments about Waide and Butler are from a pre-planned wire or were provided to the attorney general's office after the fact.
Smith's statements to the informant are problematic on a number of levels, the attorney general argues in the motion.
"As these excerpts plainly reflect, Smith sought to have Waide represent Butler in a pending case, although Butler already had counsel (Knott). Since the Christopher Butler case is a central matter in the State's case against Smith, Waide will be a necessary witness in the State's case against his client, Smith," the motion states.
"While other witnesses might be called to testify about Smith's involvement in the Butler case, the State will put in issue the question whether Smith sought to engage Waide to represent Butler and, in that respect, Waide's testimony is necessary to this prosecution and renders Waide disqualified under Rule 3.7."
On Thursday, Aug. 18, the parties are expected to gather before Special Circuit Judge James D. Bell at 9:30 a.m. for a hearing on Smith's "Motion for Immediate Dismissal Based Upon Admission of Mississippi Attorney General." Smith has also filed motions seeking copies and transcripts of all sealed documents, as well as the appointment of a special prosecutor to replace the attorney general in the case. (UPDATE: That hearing has been postponed.)
Hood's office filed a motion asking for this week's hearing to be delayed pending a sealed motion about the grand jury.
In the motion to disqualify Waide from representing Smith, the AG argues that the attorney's removal from the case is the right thing to do for Smith.
"The Court has a duty, just as the State of Mississippi does, to assure that Smith receives a fair trial and to assure that his selected attorney is free from conflicts that might impact on his client's trial," the motion states.
"Since Waide will be a witness in this case, he cannot separate his role of advocate for Smith form his role as witness—regardless of whether his testimony is favorable of adverse to Smith. For that reason, Rule 3.7 mandates that Waide be disqualified from representing Smith in this case."
Waide and Smith's response should come Thursday unless the hearing is delayed.
Additional reporting by Tim Summers Jr. Read more about the investigation and indictments of DA Robert Smith and associates at jfp.ms/DAFiles. Email Donna Ladd at firstname.lastname@example.org and Tim Summers Jr. at email@example.com.