Thursday, May 12, 2011

When the statute does not fit the desired result, it must be discarded?

Mississippi’s Speedy-Trial Statute -- which already is one of the most lenient statutes of its kind in the country -- does not need this Court’s help. If trying a defendant within 270 days is too onerous a burden, or if dismissal with prejudice in the wake of a violation is too harsh a remedy, Mississippi already has a legislative body, and it doesn’t need another one. The Legislature is perfectly free to do with the Speedy-Trial Statute what it will. We are not.
-- McBride v. State (Miss. 5/12/2011), Dickinson, J., dissenting.

Dickinson, joined only by Kitchens and Chandler, illuminates how the MSSC has gradually rewritten the statute, which is in no wise unclear or ambiguous. (LAW PROFS: You can get a good journal article about "precedential drift," which occurs in far more instances than just 99-17-1.)

He is pariticularly scathing about the Court's strange holding that, because McBride didn't raise the 270-day issue *before* the time ran, he somehow waived it:
... I know of no other statutory violation that must be raised before the violation actually occurs. * * * It is facially absurd to expect a defendant to raise the Speedy-Trial-Statute issue inside the 270-day window because, at that point, the statute has not yet even been violated. And beyond that, nothing in the statute even remotely suggests that a defendant will be deemed to have waived the statute unless he demands a speedy trial within some arbitrary time frame. This statute is really no more than a statute of limitations. Just as a cause of action for trespass must be commenced within two years of the offending action, a criminal trial must be commenced -- absent the statutory exceptions -- within 270 days of arraignment. I know of no other statute of limitation that must be raised before it
But, since Jerry McBride molested his own daughter, it appears the Court is determined not to let him out, statute or no statute.

... In the practice-tip department, it's reversible error for the trial court to refuse to allow the defense to call its own witnesses on the basis that they were already called adversely by the plaintiff. Another Ashley Ogden reversal, this time from a $2.5M Judge Green judgment.

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