Mississippi Lawyer Blog

No. The IRS will only verify that you have filed all tax returns that were due at the time you filed your bankruptcy case. There are 10 indicators that you should be aware of that can trigger an IRS audit.

1. High income. We all know the saying "follow the money". So it just makes good sense that the IRS will go where they feel they can get the most money for time spent and that is on higher income filers.


2. High charitable deductions. Documentation requirements are strict in this area and if you are claiming high amounts, which can offset up to half your taxable income, you need to make sure you have your documents in place.


3. Certain professions. Professions that combine high income and/or have a high potential for dealing in cash (ex: auto dealers, cab & limo drivers, etc) are selected as professions that have higher potential for not reporting all income.


4. Failing to report income. The IRS receives copies of W2, 1099s, and other documents that report income you received. If they are receiving notice of income that you did not report on your tax return, it could flag your return for review.


5. Home office deductions. The requirements that must be met to properly take this deduction are listed on the current form 8829 and is a 43-line long exercise in math. In other words, it's hard for them to believe you qualified so they might want to double check.


6. Real estate losses. The IRS offers a very narrow definition of real estate "professional" so if you don't qualify as a pro - you have red-flagged your return by claiming this type of loss.


7. Schedule C losses. If you run a small business, you may have losses starting up, which is understandable. However, the IRS expects you to be reporting a profit in 3-5 years. If not, the IRS may come knocking to see if you are running a business or something that they would classify a hobby but trying to claim as a business loss.


8. Gambling losses. If you have winnings, you must report it regardless and then you can report your losses as an offset. If you have no winnings however, you can't write off losses. Claiming a net loss is a potential flag.


9. Adoption tax credit. This credit is significant and requires very specific documentation so be sure you have what is needed.


10. Missing or frivolous information. Signatures, dates, social security numbers and filing status are items that, if missing, will result in the IRS sending your return back to you. If the return itself doesn't offer enough information or has writing on it that is not needed, it may be deemed "frivolous" and can result in a $5,000 penalty.

Of course, the IRS will not share their specific formula for deciding who they will audit and when. Their formula for who and what receives an audit has been a hot topic lately due to the IRS being under fire over accusations of targeting Tea Party members. An IRS supervisor in D.C. admitted to overseeing such activity according to The Washington News.
But it's not a good game plan to try to avoid an audit or depend on not being in the small % that is called up for one - but rather you should keep good records, honestly report all income, and use a reliable tax service to ensure you properly file your information with the IRS as required by law.

Last night, at Shuckers Waterfront Grill, a popular Miami bar and grill, the establishment's wooden deck abruptly collapsed, causing unsuspecting patrons to fall into the Biscayne Bay below, along with the tables and umbrellas lining the patio. Not only did this incident scare the patrons, who were dumped into the water as a result of the deck's unexpected collapse, but it also raised questions concerning the owner's liability for these injuries. Investigators will certainly check the owner's records to determine the last time this deck was inspected, or whether any work has been performed on the deck since the last inspection. At the time of the incident, there were around 100 customers on the deck. These patrons were cheering on the Miami Heat in the NBA Finals literally moments before being dumped into the Bay. Before police arrived, some brave bartenders and patrons rescued those still struggling to make their way out of the Bay and onto solid ground. As many as two dozen were injured as a result of the deck's collapse, and fifteen were taken to the hospital, with two in serious condition. A news article detailing the incident can be found here.

Unfortunately, situations like this arise more than you think. The premises owner, or the party occupying the land, owes a duty to the guests on his or her land, and the owner may be held responsible for any injuries that occur on the property. In Premises Liability cases, the injured party must show the following elements: 1) the owner owed a duty to the injured party, 2) the owner breached this duty, 3) the injured party suffered damages as a result of this breach, and 4) a causal connection exists between the owner's breach and the resulting injuries.

To establish these elements, the status, or classification, of the injured party must be considered to determine what duty, if any, the owner owed the injured party. In Mississippi, the injured party may be grouped into one of three categories: invitee, licensee, or trespasser. An invitee enters the premises in response to an express or implied invitation from the owner, for the mutual benefit of both parties. In the article discussed above, the patrons of the restaurant were business invitees, because they entered the restaurant under an invitation from the owner, for the mutual benefit of both parties. A licensee enters the premises, in accordance with the owner's license or implied permission, for his or her own convenience, benefit, or enjoyment. However, a trespasser enters the premises without permission, lacking either a license or invitation from the owner.

After determining the status of the injured party - whether invitee, licensee, or trespasser - the next step is to determine whether the owner breached his or her duty. According to Mississippi law, a premises owner owes a duty to an invitee to keep the premises reasonably safe, and to warn of dangers that are hidden from plain view. However, the owner merely owes licensees and trespassers the duty to not willfully or wantonly injure these visitors.

Next, causation must be considered. In simple terms, the injured party must prove that his or her injury was proximately caused by the owner's breach of duty. Proximate Cause is the cause which ultimately produced the plaintiff's injury; or the act which, if it did not occur, the injury would not have resulted. Lastly, the injured party must establish damages resulting from his or her injury on the owner's premises.

While Premises Liability cases can be difficult to litigate, the attorneys at Coxwell & Associates are more than capable of handling these cases. If you, or a loved one, have any legal questions regarding Premises Liability, or any other legal issue, do not hesitate to call us. For more information, please visit our website.

Former NFL star, Chad Johnson, is back in the headlines. Formerly known as Chad Ochocinco, Johnson was arrested in the courtroom, and ordered to serve 30 days in jail after jokingly slapping his attorney's rear end during a hearing following his probation violation in a domestic violence case.

When asked by the judge if he was satisfied with his attorney's work on his case - a standard question asked by judges in most judicial proceedings - Johnson expressed his satisfaction, and then slapped his lawyer's rear end, causing the courtroom to erupt in laughter. Johnson's shenanigans drew the ire of the presiding judge and led her to believe he was not taking the proceedings seriously. A link to the video of the incident can be found here.

Although Johnson claims he did not intend to show any disrespect toward the judge, nor to make a mockery of the judicial proceeding, the judge did not buy Johnson's pleas. Regardless of his intentions, Johnson should have known that slapping his attorney's rear end, during a court proceeding, would not be well-received by the judge. The courtroom is a very serious place, and there are very specific rules governing courtroom behavior. Courtroom decorum dictates that both attorneys and clients show the proper respect toward the judge and all parties involved in the proceedings. Causing disruptions in the courtroom, such as slapping an attorney's rear end, may cause the judge to believe, much like the judge in Johnson's case, that a defendant is not taking the judicial proceedings very seriously. Courtroom decorum must be observed to maintain the court's dignity, and show the proper respect for the judges and the legal system.

At Coxwell & Associates, we understand the importance and purpose of observing the rules and etiquette of the courtroom, because we are experienced litigators. If you have any questions regarding legal matters and representation, visit our website, and contact us today.

According to a recent article published in
The Clarion-Ledger, teen traffic fatalities have decreased significantly in recent years. However, Mississippi remains the third-deadliest state in the nation for teen drivers, as auto accidents constitute the leading cause of death for Mississippi teens. The article reports a significant decline in fatalities among 15- to 19-year-old drivers, decreasing from as high as 103 traffic fatalities in 2009 to 52 traffic fatalities in 2012. Although this figure shows a significant decrease in fatalities, lawmakers are still looking for ways to further decrease this number and promote greater safety on Mississippi's roadways.

Safety officials credit several factors to the decrease in teen fatalities, but none more important than increased awareness of the risk posed by drivers texting, or checking social media, while driving, when their attention should be focused solely on the roadway. Accordingly, safety officials note that teenagers' feelings of invincibility, in conjunction with their relative inexperience compared to more seasoned drivers, must also be taken into consideration in drafting new safety measures.

As the article notes, texting while driving not only impairs the driver's vision of the roadway, but it also deprives the driver of the ability to focus solely on driving, as the driver's attention is split between paying attention to the road, and texting on the cell phone. The Clarion-Ledger cites a figure that drivers, of all ages and experience levels, who text while driving, are 23 times more likely to have auto accidents. The Mississippi legislature has overturned all previous attempts to ban texting while driving, although 40 states have passed laws banning the practice. Most importantly, however, the article reminds drivers of the simplest safety precaution all drivers should take: wear a seat belt.

While these cases can pose difficult questions in litigation, the experienced attorneys at Coxwell & Associates will always be there when you need us. To learn more about Wrongful Death actions, click here.

Pac Man Jones is in trouble again. The Cincinnati Bengals cornerback was arrested today for punching a female bar patron in the face. Here's the video from ESPN. First Pac Man claimed that the lady threw a beer bottle at him. However, the video does not support that version of events. Perhaps she poured beer on him but clearly there was nothing thrown at him. In my opinion Jones clearly overreacted in striking the lady. Short of a woman using deadly force against a man I cannot fathom hitting a woman like this.

This is not Pac Man's first scrape with the law. He was makin' it rain in a Vegas strip club which lead to a gun fight. Pac Man was sued by the victims of the shoot out and a jury ordered him to pay $11.7 million in damages. One of the victims was paralyzed from the waist down. Pac Man also plead guilty to misdemeanors related to the shooting but received probation. Pac Man was suspended by the NFL and was out of a job. He ended up getting a second shot with the Cowboys and then with the Bengals. He had kept his nose clean for a while but I guess a Bengal can't change it's stripes.

Bars and nightclubs can be very dangerous places. My Dad warned me about them for years, referring to them as "beer joints". He often told me that anyone could come up to you in a crowd and stick a knife in you or you could be at the wrong place at the wrong time. Well, I didn't always listen to my Dad but I can tell you that he was dead on accurate about "beer joints".

I have represented many Mississippians who were involved in fights or altercations at clubs in both civil and criminal court. I am currently representing three (3) individuals who were all harmed at a night club in Hattiesburg, Mississippi on separate occasions. In those cases, we have alleged that the club was a haven for criminal activity and the owner failed to take steps to beef up security. We go to trial on one of these cases in September 2013. These cases are typically called "premises liability" cases. Anytime you at at a club you are considered a "business invitee". The "beer joint" owes you a duty to protect you from harm it is aware of or harm that it should be aware of. If a club breaches that duty it could be liable for any harm suffered by you while you are on the premises.

The other side of the coin are criminal acts which occur in beer joints. A lot of folks go to clubs to have fun but some idiots are just "too stupid to have a good time." This will lead to bar fights and serious charges.

In a lot of clubs, the owners will hire off duty police officers for security. That's good. However, should you become "imbibed" and get into an argument with these guys you could be charged with "disobeying a police officer", "assaulting a police officer", or "resiting arrest". The reason is that in Mississippi, police officers are deemed to be on duty 24/7 even when they are working off duty jobs. Should you be out at a beer joint which has an off duty cop working security, you should be mindful of that. We have represented many folks on these charges and they have been very difficult cases to defend.

Continue reading "Bar Fights can lead to Civil and Criminal Exposure in Mississippi" »

Recently, the Mississippi Supreme Court handed down a very favorable decision regarding DUI convictions. The case, Freeman v. State of Mississippi
Freeman v. State, litigated by Coxwell & Associates' very own Chuck Mullins, resulted in a very favorable outcome for our client, as it is not very often the Supreme Court reverses a DUI conviction.
Dr. Freeman was convicted of driving under the influence (DUI) first offense, by the Madison County Justice Court. On appeal, the State was put under a court order to preserve specific video evidence, vital to Freeman's defense. However, this key evidence was eventually destroyed, in violation of the court order mandating the State to preserve this evidence. As a result, the Supreme Court determined that, without this key evidence, Dr. Freeman would be unable to present a complete defense. The arresting officer even admitted at trial that this evidence would have cleared up any unanswered questions regarding Dr. Freeman's traffic stop and arrest.
When Dr. Freeman agreed to a continuance, he did so under one stipulation - that the video recording of the traffic stop would be preserved for defense counsel's use at trial. However, this evidence was destroyed while the arresting officer was away on active military duty. Without this objective video evidence, which undoubtedly would have cleared up any unresolved questions regarding the traffic stop, the Supreme Court decided that Dr. Freeman would be unable to present a complete defense without the evidentiary support and aid of the videotaped arrest. As a result, the Court reversed and remanded Dr. Freeman's DUI conviction - a great result for our client.
At Coxwell & Associates, the best advice we can give clients regarding drinking and driving is simple: NEVER, under any circumstances, get behind the wheel after consuming alcohol. However, as Dr. Freeman can attest to, the attorneys at Coxwell & Associates are here for you if you, or a loved one, ever have any questions regarding DUI convictions. Our experienced and knowledgeable attorneys will work hard to achieve the results you expect. To learn more about DUI defense, click here.

Click here to read the full opinion of Freeman v. State.

Your mortgage documents require you to keep your house and property insured. If you let your homeowners insurance coverage lapse, the mortgage company will get coverage for you that protects the payment of the debt you owe them. This type of insurance is called force placed or hazard insurance, or sometimes referred to as lender placed insurance.
This insurance is BAD for the homeowner! It is very costly and does NOT protect you, the homeowner. Many people believe this coverage protects their contents. Wrong! The insurance your mortgage company gets for you is much more expensive than insurance you would obtain on your own. The mortgage company charges you an inflated price for insurance that does not protect you or your property at all.
Your mortgage company is not under any obligation to find the cheapest rates for you. They will not look around and try to find the best terms for you or the strongest insurance company. They are not required to protect the contents of your home or protect you from people who are injured on your property that may sue you. To make matters worse, the policy your mortgage company will obtain only covers the value of the property up to the loan balance. In other words, if does not cover any equity in the house. And the lender is the only one protected. If the house burns down, only the mortgage company is protected. You get nothing.
In most cases, you, the homeowner do not have the right to cancel the hazard insurance policy - only the lender can cancel it. Your mortgage lender has the right to purchase forced placed insurance to cover your house and they can do this if the property has no insurance or it does not have enough insurance.
Usually the premiums are higher for this type of insurance because the insurance industry believes these types of properties are at a higher risk of loss if the homeowner has chosen not to insure his own property. The increased cost of this insurance coverage is your responsibility. Any money your mortgage company spends for force placed insurance will be added to your loan.
Bottom line - protect your home and your property - get your own insurance coverage ASAP!

If you have reviewed your credit report and see that an unpaid debt shows "Charged Off", this doesn't mean that the debt is now gone. It is a common mistake that many people make thinking that when the debt reflects this status (Charged Off) that it's been cancelled by the creditor, all is forgiven and the debt has disappeared forever. This isn't true. You still owe the debt. "Charge Off" is an accounting term that means the debt has been "charged off to profit and loss".
Banks and credit card companies are legally required to remove delinquent accounts from their books after 180 days, or six months. That does not mean, however, that the debt is no longer valid. At this point the account is usually sold to a debt collector for further collection efforts. The charged off debt is still an obligation, will affect your creditworthiness, and can cause you to be ineligible for new debt.
Charged off debts also often cause confusion on your credit reports. Charged off debts are sold from one debt collector to another, resulting in numerous entries on your credit bureau reports and multiple organizations contacting you for payment. A charge-off remains on your credit report for seven years from the date it was charged off.
A lawsuit can be filed to gain a judgment against you which then opens the pathway for the creditor to garnish wages, etc. Filing bankruptcy stops all collection at whatever point in the debt collection process your debt is in at the time the bankruptcy is filed. The debt is then wiped out by the court and cannot be collected.

My legal assistant, Jen, sent me this heartbreaking article and suggested I blog about the dangers of texting and driving. I have blogged about texting before but when I see an article like this one and I think about how many young teenagers I personally know who recently stared to drive I think it's worth another blog.

The article is about 16 year old Savannah Nash and her tragic death. Savannah just got her driver's license and her family gave her permission to take the car out for the first time by herself. She simply went to the grocery store to pick up a few items. As she was driving, she failed to yield at an intersection and a semi tractor truck t-boned her car. The trooper who investigated the accident reported that Savannah was texting at the time of the accident.

By all accounts, Savannah was a sweet little girl who was loved by her family and friends. Over 300 people turned out for her funeral. I can't imagine her family's grief and don't care to. Our thoughts and prayers go out to them.

I have several friends who have young drivers and I know that they text and drive even though their parents have told them not to. I know this because they're kids and that's what kids do. I know you can talk and talk to kids and they won't listen to you. You tell them to pick up their clothes, do their homework, brush their teeth, etc. until your blue in the face. Kids simply have of tuning out their parents voices.

I would love to share Savannah's story with each and every teen in America. I want them to see how this 16 year old girl was needlessly killed. How her death has devastated her family and friends. How her death left a hole in their lives that will never be filled. There will be an empty seat at the dinner table forever. When her favorite TV show comes on, it will only bring tears to her parents' eyes. When they hear songs she enjoyed, they will feel sadness. The holidays will never be the same. Her birthday will be mourned instead of celebrated. When her friends graduate high school and then college, her family will only feel loss.

If you are a parent, please take time to let your child read this story. As a parent of of a 9 year old, I will be telling my son about Savannah. Won't you take time to do the same with your child? I hope to practice law another 30 years and I truly hope that I never have to represent another family who has lost a child. Maybe Savannah's story can help prevent another tragic death.

Continue reading "Texting Blamed for Horrible Car Accident. Mississippi Parents Please Eductate Teens!" »

As the Kenny Chesney song goes, Summertime is finally here! And with that comes summer camps for the kids. Nowadays nearly every childrens' activity will involve a parent signing a release which purports to hold the camp harmless in the event the child is hurt while at camp in a freak hunting accident like the one warned about in Meatballs: "Important announcement - Some hunters have been seen in the woods near Piney Ridge trail and the fish and game commission has raised the legal kill limit on campers to three. So, if you're hiking today, please wear something bright and keep low." (As an aside, isn't it a little strange how parents are quick to sign these releases without so much as questioning the camp director about it? Heck, what if the reason for the release is that years ago a camp attendee drowned in the lake and his psycho mom is back looking for revenge? Come on parents, wake up and ask some questions!)

Most parents think if their child gets hurt after signing a release then they cannot do anything about it. We field calls all the time about the validity of such releases. Can a camp, or other recreational activity, limit their liability by having a parent sign a release? The short answer is "no", the release is not valid.

Our Mississippi Supreme Court has long held that releases which seek to limit the liability of a party are looked up on with disfavor but releases can be valid. The Court construes these releases with a "jaundiced eye" (I really don't know what that means but I've read it a lot in cases and always wanted to use it in a sentence) and will only be enforced if the release is "fairly and honestly negotiated and understood by both parties".

So what does all that mean? Well, the releases that parents sign when they enroll their kid in sports,camps, or even daycares are all pre-printed forms. The parent does not negotiate the terms of the release and most of the time is not even aware that they are signing a release. The Supreme Court has taken the view that such "pre-printed releases" are not valid and will not be upheld. This also goes for waivers signed by adults. Typically, every health club nowadays has a pre-printed release which every member must sign. However, as with releases signed by kids, the releases will not be upheld because the terms are not negotiated.

So why do business use these pre-printed release forms even if they are not valid? Simply because most people will think they are valid and won't even bother to challenge them if they get hurt. It's really a win win for the businesses but the consumer, as usual, is the one who loses. Imagine all of the medical bills that parents have had to pay simply because a business told them "you signed the release so we are not responsible".

Continue reading "What happens if I sign a release for my child to attend summer camp?" »

Tylenol is a staple in my home as I'm sure it is in the homes of many Mississippians. We use it for aching muscles, fever reducer, and to relieve headaches commonly associated with practicing law and coaching 9 year old baseball. Sometimes I just feel like Clark Griswold in Christmas Vacation and find myself screaming for the Tylenol!

The wonderful ingredient which makes this happen is acetaminophen. In 2011, the Food and Drug Administration (FDA) issued a warning limiting the amount of acetaminophen per tablet and requiring manufacturers to warn of the dangers of severe liver injury for prescription products. Tylenol, Extra strength Tylenol, Tylenol PM, Children's Tylenol, all the cold & flu remedies, allergy remedies, contain acetaminophen. People may have been taking those and other prescription drugs that contain acetaminophen. Some people have had very serious reactions to the acetaminophen.

The most common side effect is liver damage and liver failure. Studies have shown that using acetaminophen in connection with other medicines put you at more of a risk for problems. The FDA advises everyone to read the label before taking Tylenol (or any other drug). Make sure you are not already taking a drug which is contraindicated (big word, means you shouldn't take it with Tylenol).

Globally, we will spend $70 billion annually on over the counter drugs. That is a staggering sum but it is dwarfed by the pharmaceutical industry's $1 trillion market worth by 2015. I point these astronomical figures out only because with this kind of money comes great political power. The pharmaceutical companies have a lot to risk and I expect that they will make sure their drugs hit the market and get sold. Doctors are nothing more than salespersons for the drug companies. When was the last time your doctors sat down with you and explained the risks associated with your prescription medicine?

The FDA has put it on us, the people, to read and educate ourselves on the drugs we put into our bodies. In a way, we should take that responsibility but the drug companies have a duty to alert consumers when there are potential problems with their drugs.Doctors also have a heightened duty to explain the side effects to their patients. However, drug companies routinely put profits ahead of people and most doctors are too busy to sit and talk with patients.

Continue reading "Attention Mississippi: Beware of Tylenol" »

"What's the difference between an ordinance and a statute?" I have fielded this question quite a few times in the past week. These two terms are commonly misused because we simply repeat what we have already heard through the media, whether it be the news or the paper.

Ordinances are enforceable at the city level only and only by the particular city that enacted the specific ordinance (unless it's a county ordinance, and then it covers the entire county). In other words, an ordinance in the city of Jackson cannot be enforced in the city of Vicksburg. Ordinances may only address misdemeanor violations and shall never address felonies. Any violations of a city ordinance are handled by that city's municipal court. While each city has a different procedure for approving an ordinance, usually these ordinances have been drafted by someone in the city or the city attorney's office and have then been adopted by the board of aldermen or city council and then approved by the city's mayor. Violating a city ordinance can result in a fine and/or jail time. Keep in mind that any time an individual goes to court and is found guilty of violating a city ordinance, that individual is responsible for paying court costs and assessments, which is usually anywhere between $100 and $200 depending on the violation. A listing of Jackson ordinances can be found here.

Statutes are enforceable throughout the entire state, including at the municipal court level. These are enacted by the state legislature and are regarded a bit higher than ordinances. Statutes have been kicked around committee hearings in the legislature and have withstood review by both the House and Senate, and then were signed into law by the sitting governor. These laws can still be considered unconstitutional by the Mississippi Supreme Court for a variety of reasons. A violation of a misdemeanor statute can result of a fine and/or jail time up to a year in the county jail. When in court for a violation of a statute, whether it be misdemeanor or felony, there will always be court costs and assessments attached to any sort of fine the defendant may be required to pay. The entire Miss. Code can be found here. As my boss says many, many times, "a code lawyer is a dangerous lawyer."

If you have any questions about your understanding of the law where you live, feel free to call the attorneys at Coxwell & Associates so that we may help you.

Unless you have been on a 5 year vacation, you could probably pick Jodi Arias out of a lineup. You have heard Nancy Grace talk about Jodi Arias so much that you probably change the channel, which means I should definitely take the time to write about her here, right?

The point of this blog is not to comment on Jodi Arias or Travis Alexander or the death penalty or how capital punishment is used in Arizona, but to highlight a portion of the trial that most jurors cannot wait for attorneys to get to: closing arguments.

Today I had a person call the office to ask a "legal question": "Can the prosecutor call someone a liar in closing arguments?" Now, we all know this really could have been answered by Google, but I briefly and politely answered her question.

While the author of this blog is never comfortable with name-calling at any portion of any trial, the short answer is "yes." When a witness takes the stand in any trial, the credibility of that witness is always at issue. In this case, Jodi Arias waived her right against self-incrimination and took the witness stand in her own defense. By testifying on her own behalf, Jodi Arias opened herself up (pun intended) to be cross-examined by the prosecutor. Since she had given various accounts of what actually happened, the prosecutors attempted to impeach her with her own statements. Jodi Arias told police and investigators (and even the jury) at least three (3) different versions of what happened. By definition, one or more of those versions were not truthful.

There are subject areas and comments that attorneys are not allowed to mention during closing argument. The Mississippi Supreme Court has widely rejected impermissible arguments during closing: "Although it is the duty of the district attorney to prosecute a case with diligence, he or she should guard against doing or saying anything which would prejudice the minds of the jurors or tend to cause them to decide a case on something other than the evidence." McCaskill v. State, 227 So. 2d 847 (Miss. 1969).

In other words, attorneys are not allowed to make arguments that are merely to inflame the passions and prejudices of the jurors. Take a look at these few examples:

"A prosecutor's comment regarding the prospect of allowing a 13-year-old defendant charged with murder to go free in a jurors' neighborhood was impermissible. The prosecutor was not arguing a statement of fact that was in evidence or that was relevant to an issue before jury, but was improperly attempting to frighten the jury." Dancer v. State, 721 So. 2d 583 (Miss. 1998).

"A prosecutor's repeated, improper comments encouraging the jury to "send a message" to the community and to "do something about the crime in this county" were not harmless error in a prosecution for aggravated assault and shooting into a dwelling house. The prosecutor violated the rules five times and, in the process, attempted to mislead the trial judge as to the prevailing law on the propriety of such argument, and the evidence of guilt was not overwhelming." Brown v. State, 986 So. 2d 270 (Miss. 2008).

In closing (another intended pun), attorneys should stick to the evidence (or lack thereof) and argument that can be made based on that evidence. Personal opinions of attorneys are not allowed. Attorneys can lead the horse to the water, but they simply should not force the horse's head into the water to force the horse to drink.

I was a huge Monkees fan when I was a kid.(What? I was 8!) I loved the song Daydream Believer. But who would've ever thought that daydreaming was so dangerous?

According to a recent study, daydreaming drivers are even more dangerous than texting drivers. In fact, daydreamers are five (5) times more dangerous. According to the study, 65,000 car accidents were researched over the last two years. An amazing 62% of car accidents which resulted in death were caused by drivers who were daydreaming. By comparison, only 12% of driving deaths were caused by texting drivers. (Can't you just see Governor Phil Bryant calling a special session to ban daydreaming while driving?)

Over the last 18 plus years, I have represented numerous car accident victims. Long before texting, we had drivers who would run stop signs, red lights, drive off the road, etc. and cause accidents. These drivers were distracted by something and not paying attention. According to the study, here are other forms of distractions and the percentage of accidents each caused:

Rubbernecking, 7 percent;
Kids or other vehicle occupants, 5 percent;
Reaching for an object elsewhere in the car, 2 percent;
Eating or drinking, 2 percent.

Other, more minor factors included operating vehicle controls, such as the heater or radio, and even reaching for an ashtray. Pets were also a problem blamed for 1 percent of all fatal distracted driving incidents.

Ok there are several activities that didn't make the list which apparently means they are safe, right? First, I noticed that neither air guitar or air drumming caused any accidents. These are two of my favorite driving activities. I am extremely partial to late 70's and early 80's rock songs, specifically AC/DC and Van Halen. I'm gonna be rockin' out on the way home today!

Secondly, singing seems to be fine as there were no reported incidents of singing drivers causing any accidents. I tend to cover Journey's "Don't Stop Believin'" . My wife Wendy swears she can nail just about any Lady Gaga tune in her car but I can tell you from personal experience she can't find the right pitch when she's out of the car or when someone is in the car with her. Strange how that works isn't it?

Lastly, even though I don't partake, smoking in your car seems to be safe as there were no reports of smokers causing accidents. However, I specifically do remember a very gnarly accident several years ago in California caused by smoking. It seems this fella, we'll call him Dude, was tokin' away singing some Creedence (heck, he appeared to be air drumming as well!) when he dropped his smoke in his lap and crashed. Fortunately no one was injured. It should be noted that Dude was also drinking while driving, the dangers of which we have blogged about numerous times, most recently here, here, and here. . By the way, I like your style Dude, but do you have to use so many cuss words? I digress.

Continue reading "What Causes Mississippi Car Accidents? Daydream Believers" »

I'm not a big movie guy but I've always liked Reese Witherspoon's work. She's versatile enough to play a spoiled rich kid, a country music singer, and a 50 foot animated woman. I chalk it up to her New Orleans upbringing, a city which has a little bit of everything.

Recently Witherspoon got to play the role of arrested celebrity. She and her husband, Jim Toth, were pulled over by Atlanta police. Toth was driving and the police said he was weaving in and out of lanes. According to police reports, Toth had a strong smell of an alcoholic beverage coming from his breath and his eyes were watery and blood shot. As the police were investigating Toth, Witherspoon decided it was time to play her "celebrity card".

Reese asked one of the officers "Do you know my name?" Apparently the officer was not a fan of her work because he informed Reese that "no" he didn't need to know her name. Reese stepped out of the car with a handful of her DVD's to show the officer (author's embellishment). The officer was apparently not in the mood to watch a movie and ordered her back in the car. Undaunted, Reese exited the car once again, this time playing a guitar and singing a June Carter Cash song. (author's embellishment). The officer then arrested Reese at which time Reese informed the officer "You're about to find out who I am ... You are going to be on national news." Well, she was right about that.

Witherspoon was charged with disorderly conduct. Her husband was arrested for DUI and blew a .139 even though he claimed he only had one drink. Reese has released the obligatory statement apologizing for her actions and expressing how much respect she has for police officers. I'm sure her career will survive this hiccup, after all she survived Legally Blonde II: Red, White, and Blonde. But what about the criminal charges?

In Mississippi, a person's speech cannot be the basis for a disorderly conduct or breach of peace conviction unless the words used constitute "fighting words". Fighting words are those words which which by their very utterance inflict injury or tend to incite an immediate breach of the peace. See Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-572 (U.S. 1942).

Police officers, however, are held to a higher standard with regards to what constitutes "fighting words". In several United States Supreme Court cases, convictions have been thrown out where a person cussed at police officers using "F bombs", "SOB", and certain other words you cannot say on television. The Supreme Court has held that the First Amendment "protects a significant amount of verbal criticism and challenge directed at police officers." Houston v. Hill, City of Houston v. Hill, 482 U.S. 451, 461 (1987). The Mississippi Supreme Court and Court of Appeals have followed the United States Supreme Court rationale in cases where spoken words form the basis of a criminal charge.

In Witherspoon's case, her spoken words "don't you know who I am?" do not rise to the level of fighting words. However, the prosecutor may focus the charge on her conduct of refusing to stay in the car. Conduct is not protected by the First Amendment since speech is not being regulated. However, the conduct must be something that actually constitutes "disorderly conduct". Actions coupled with words can constitute a valid conviction for disorderly conduct and/or disturbing the peace.

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