Retaliation Against a Public Servant
This lawyer sharpened his teeth on a jury trial involving an indictment of retaliation against a public servant. Hopefully, the appeal made District Attorneys and other local prosecutors look harder before presenting a case on, what I consider to be, an unconstitutional and unnecessary law. The statute is § 97-9-127, Mississippi Code Annotated, 1972. Several states adopted a similar type of law in 2008.
The opinion can be found here. In this case, law enforcement accused a woman of retaliation against a public servant (a felony) for simply alleging that a police officer raped her. Keep in mind, she only did this after a pattern of pullovers, detainment, and arrests by this officer. She spent several months in jail on a bond that was so high she couldn’t afford to bail out.
In Court, although “harm” was never proved, and the officer faced no public, professional, or personal damages, as evidenced by his own personal testimony during the trial, a jury found her guilty. After moving for a directed verdict when the state rested, as a matter of law, the trial judge would not entertain the argument that the State had failed in its presentation of the evidence. Therefore, I believe the Mississippi Supreme Court erred in their rationale not to reverse or remand the case.
Another case since this opinion is found in recent news. The lawyer makes the same argument I made before the Mississippi Supreme Court. This statute is unconstitutionally vague.
A Better Solution…
There is already a misdemeanor charge in Mississippi for making a false report. If an individual allegedly effects another persons’s income or earning capacity, then why not use the common law civil-action remedy of libel and slander? When you create a criminal action to “protect” government employees or witnesses from potential reputational “harm,” the criminal prosecution thereof seems inherently flawed. Scholars of law and history call this a “chilling effect.”
To compare and contrast, cross-reference a free-speech case regarding a different kind of retaliation. Refer to this blog post here. In particular, please read the entire post and pay attention to the last paragraph, which I herein quote, “[…] when the government has an individual arrested as ‘political payback’ for exercising free speech, a Section 1983 claim can arise even if there was probable cause for the arrest.”
District attorneys and prosecutors need to be aware of the potential civil consequences of bringing this bill of information before a grand jury. Perhaps the State legislators should simply do away with this statute. Call Panter Law Firm, PLLC, if you have any questions.
Article by Richard Poole Noel, III
Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110