One of the more interesting aspects of last month’s hearing was the role the case of Mississippi v. Wheeler will play in Judge Eubanks coming rulings and, if necessary, in the rest of Cory’s appeals process.
As noted on this site shortly after I first found Cory’s case, Wheeler seems to be directly on point, and can’t be distinguished from the facts in Cory Maye’s case in any way that’s not favorable to Maye. In Wheeler, a team of uniformed police officers entered Mr. Wheeler’s home to arrest him. They entered in broad daylight. Mr. Wheeler resisted, and engaged in a struggle with two officers. During that struggle, he took possession of one of the officers’ sidearm. He then fired at a figure in the doorway, which happened to be a fourth, uniformed officer. The Mississippi state Supreme Court ruled that as a matter of law, jurors could not have concluded that Mr. Wheeler knew the figure in the doorway was a police officer when he fired. They set aside his capital murder conviction and death sentence, but kept intact his murder conviction and life sentence.
Wheeler has not been overruled or distinguished since. Now contrast the facts in Wheeler with the facts in Maye’s case. Officers in Wheeler approached during the day, in Maye’s case they came at night. In Wheeler, the officers were uniformed. In Maye’s case, Jones was wearing a dark vest, dark pants, and shirt that were unmarked, save for two small patches on the side of either shoulder. In Wheeler, the defendant had ever reason to suspect the figure he shot at was a police officer, given that he was already struggling with uniformed officers. In Maye’s case, there was no direct line to the outside of the apartment. Maye was also sleeping. And he lived next to a reputed drug dealer.
As defense attorney Abe Pafford argued at the hearing, the only evidence the prosecution offered suggesting Maye should have known the men outside his home were police was the officers’ testimony that they repeatedly announced themselves, and one officers’ testimony that he saw someone peer out the window shortly after they arrived. The latter testimony is suspect given that it doesn’t jibe with the same officer’s testimony given shortly after the raid, and that he actually changed his testimony on the stand at trial, at the prodding of DA Buddy McDonald. Even then, that officer — Stephen Jones — ultimately conceded on cross-examination that he didn’t see anyone peer out. So it’s disingenuous for the prosecution to cite Jones’ original testimony without pointing out that he eventually changed it in a way quite favorable to Maye. As for the announcement, the defense correctly noted that the only officer to testify at trial who was actually inside the duplex when the raid took place — officer Darryl Graves, who was in Smith’s half of the duplex — said on the stand that he couldn’t hear any announcement.
Of course, even if Maye did hear the announcement, Wheeler says you still can’t automatically assume he knew the man who broke into his home was a police officer. He could have been a criminal fleeing the scene of the raid next door, for example.
Now, you can disagree with the merits of Wheeler. But there’s no disputing the fact that it is on-point, and it’s the controlling case law. Again, there’s no way to honestly distinguish the case from Maye’s case in a way that doesn’t favor Maye.
The prosecution knows this. In their brief, their only response to the defense team’s invocation of Wheeler was to quote from the dissent. And here’s how McDonald addresses Wheeler at the hearing:
With respect to Wheeler we agree with the dissent. We feel that Wheeler is an unusual case and we don’t think that Wheeler should control this case and frankly we hope that there’s — will be an opportunity for Wheeler to be readdressed by the Court and put in the proper context.
That’s it. They don’t explain why or how the Wheeler case can be distinguished. They only say they hope it’s overturned, or “put in the proper context.”
It’s quite possible that all of that might happen. Remember back to the brief history of Mississippi and the death penalty I relayed to you a couple of months ago. Wheeler was decided at a time when Mississippi’s Supreme Court — which is elected — was unusually humane and deferential to defendants in capital cases. Everyone I’ve talked to down there has said that prosecutors and law-and-order judges can’t wait to overturn some of the capital cases that came down during the Robertson era.
What happens if the state’s Supreme Court uses Maye’s case to overturn Wheeler? I have no idea. Seems to me there’s something fundamentally unjust about reversing a precedent, then holding the defendant in the case that reverses the precedent to the new rule, despite the fact that the incident took place while the old rule was still in effect. We don’t let legislators pass ex post facto laws. Seems the same principle ought to apply to case law. I talked to a few experts in constitutional law abou this, and while all agreed that such an outcome would be unjust, none had any strong opinions on whether or not it would pass constitutional muster.
Of course, the state Supreme Court might get around all of that with some slippery meneuvering that “distinguishes” Wheeler without overturning it, but “distinguishes” it in such a way that for all practical purposes overrules it.
This is all speculative, of course, and assumes the unlikely chain of events that would lead to Maye’s case reaching the state Supreme Court on Wheeler, and the Court using Maye to wipe Wheeler from the books.
What’s more pratical, pertinent, and relevant is how Judge Eubanks will deal with Wheeler in the next few weeks. I don’t see how he can ignore it. He’ll have to address it in some way. And I have a hard time seeing him taking the prosecution’s bait and declaring that Wheeler doesnt’ apply without offering an explanation as to why it doesn’t apply. It would be very difficult to distinguish Wheeler from Maye’s case in an intellectually honest way without coming to the conclusion that the facts in Maye’s case are more compelling than those in Wheeler.
Once we get to that point, things look good for Maye. If Eubanks accepts the argument that Wheeler is on-point and the controlling case law, and he accepts the argument that Wheeler can’t be distinguished from Maye in any way unfavorable to Maye, he then has no choice but to throw out the capital murder conviction.
But then what? You can’t rule that as a matter of law, the jury could not have reached the verdict it did, then order a new trial in which a new jury could come to the very same conclusion. Legal minds in reader-land, feel free to correct me if I’m wrong. But that doesn’t make a hell of a lot of sense. A new trial would be a huge victory. But if a judge were to accept the premise that Wheeler is both on-point and indistinguishable from Maye, I don’t see how he could do anything other than pronounce Maye “not guilty” as a matter of law.
Here’s where it really gets interesting. The defense argues — and the prosecution concedes — that if Cory Maye isn’t guilty of capital murder, he isn’t guilty of anything. That is, if as a matter of law Maye did not know that Officer Jones was a police officer, then as a matter of law, he was within his rights to use lethal force to defend his home and his family from an intruder. That means no manslaughter, felony recklessness, or some other crime that doesn’t require intent. Which means he’d be released.
The problem is that it’s really difficult to see a judge coming back on motions concerning a man who is on death row for admitedly shooting and killing a police officer with an order that the defendant be freed. It would be an extraordinary move. And to be honest, I don’t think it’ll happen. It’s just too politically perilous (though it’s worth noting that Judge Eubanks is retiring). A new trial seems like a more politically feasible outcome. Still, from a logical standpoint, I just don’t see how Judge Eubanks could negotiate his way around Wheeler and its implications and come up with anything short of releasing Maye. At least in a convincing way.
Of course, Wheeler is just one of the defense team’s arguments. I’m interested to hear what blogosphere criminal lawyers and constitutional scholars make of all of this.
One other thing — Rhonda Cooper made no mention of Wheeler during the trial or in her post-trial motion.