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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  February 11, 2008
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Nifonging in Miss.: Miss. Sup. Ct., Right 11-Year Wrong NOW!

Instead of continuing to dawdle, the justices of the Supreme Court of the State of Mississippi, if they want to help remove the stench around the State’s capital, should finally right an 11-year wrong and immediately reinstate the Nifonged J. Keith Shelton to the practice of law without further condition.

J. Keith Shelton is Director of Compliance of for a commercial real estate development firm based in Texas.

An attorney by training and an accomplished one, Mr. Shelton practiced law in Mississippi.

He relocated to Texas after being Nifonged in Mississippi.

If I had been born in Mississippi with a gift of writing like William Faulkner, Willie Morris or John Grisham, I might have put it this way: “The is a rather putrid aroma of public corruption and prosecutorial malfeasance wafting all the way up to these parts coming from that most lovely home of the magnolia, the crepe myrtle, the azalea, the deep piney woods and hardwood forests, the black prairie, the fit and chiseled gentleman and the elegant southern belle. Notwithstanding the sweet aromatic blossoms and fine genteel folks, something stinks to high heaven in Mississippi, and I can smell it all the way up here.

”I’m a lifelong New Yorker who read Hamlet, however, so I’ll simply put it this way: Something is rotten in the State of Mississippi.

Mr. Shelton’s lawyer, Andy Kilpatrick: “My client was Nifonged long before the name became a verb."

This is another Democrat scandal. It is a shameful story of judicial corruption by a Democrat judge (African-American) followed by Nifong-like prosecutorial misconduct against Mr. Shelton and his former client (both white and decidely not Democrat enough) by a (white) Democrat district attorney running for re-election in predominantly black Hinds County, Mississippi, terrifically told by a Florida based blogger who calls herself “Lotus” (aide to Ms. Lotus: excellent reporting!).

It is a David versus Goliath story. Mr. Shelton is a David who confronted a Goliath--the Mississippi legal system, wrongly suffered in disgrace for years, and finally triumphed, thanks to excellent legal representation by Mr. Kilpatrick.

Mr. Kilpatrick brilliantly represented Mr. Shelton in a Herculean matter-of-principle effort to regain Mr. Shelton’s law license after it was suspended because Mr. Shelton had dared to enter a “Best Interest” plea (better known in some jurisdictions as an “Alford” plea) in a criminal case brought by the State of Mississippi with District Attorney Ed Peters leading the charge.

(Those who have followed Mississippi's unfolding Dickie Scruggs saga may see the oblique connection.)

Mr. Shelton was charged with conspiracy to obstruct justice and bribery involving a Mississippi County Court Judge, Houston Patton. But Mr. Kilpatrick successfully demonstrated to a Complaint Tribunal empanelled by the Mississippi Supreme Court in the case of In Re Petition of J. Keith Shelton For Reinstatement to the Practice of Law (Miss. SC 2005-BR-2366) that “Mr. Shelton was wrongfully indicted and should never have been suspended in the first place …” (p. 50 of the Tribunal’s Findings of Fact and Conclusions of Law filed at the Mississippi Supreme Court on August 16, 2007).

What happened?

In 1997 Mr. Shelton boldly asserting on behalf of his (white) client, James E. Jennings, Jr., that Hinds County Court Judge Houston Patton previously had held his client in jail on some misdemeanor charges and forced Jennings to essentially “buy” his freedom by agreeing to give up a summary judgment that he had earlier won in Judge Patton’s court in a separate civil case wholly unrelated to the “charges” for which he was then incarcerated. This allegation, a civil rights claim on its face, is strongly supported by an affidavit from Mr. Jennings’ then-attorney, Jacqueline Pierce (part of the Supreme Court file made available to me). Notably, Mr. Jennings never was prosecuted on the charges on which he was held by Judge Patton after being forced to give up his summary judgment in order to get out of jail.

Unsurprisingly, Mr. Jennings had trouble finding a lawyer to represent him in his civil rights case against Judge Patton. At least one attorney told Mr. Jennings that taking his case would be "too hot politically." Then Mr. Jenninggs found Mr. Shelton and Mr. Shelton agreed to represent him (a couple of years after the original offense). Mr. Shelton thereafter made settlement overtures to the alleged civil wrongdoer (Judge Patton) in an effort to obtain a monetary settlement. After brief discussions regarding settlement, Mr. Shelton presented to Judge Patton an initial written offer to settle that did not involve reinstating the summary judgment that Mr. Jennings had alleged that Judge Patton had effectively taken from him and neither did it include a promise to “dismiss” a Judicial Performance Complaint that Mr. Jennings had earlier filed against Judge Patton.

Mr. Shelton then received two telephone calls from Judge Patton. Judge Patton, referring to the first written offer of settlement given to him earlier in the day by Mr. Shelton, first complained to Mr. Shelton that it did not mention reinstating the judgment and then insisted that it be changed to do so. Later Judge Patton called back to complain that the offer only said that Mr. Jennings would “take affirmative steps to inform the Commission on Judicial Performance that he has been civilly satisfied.” Judge Patton wanted “affirmative steps” removed, so that the operative language would be “will inform”. Mr. Shelton acquiesced to both of the changes Judge Patton had demanded and prepared the settlement document (and other ancillary settlement documents) as instructed by Judge Patton. The meeting, the drafting, the phone calls, the redrafting of documents, and the law enforcement “sting” all occurred on April 16, 1997.

What followed?

After supposedly “consummating” the settlement, Judge Patton had Mr. Shelton and his client arrested and charged with conspiracy to obstruct justice and extortion!

The charges were later changed to conspiracy to obstruct justice and bribery, even though Judge Patton was to pay the money.

After five and a half years of languishing in the criminal injustice system of Hinds County, Mississippi, Mr. Shelton believed he had a way out of the mousetrap that would permit him to save his law license. Following the advice of his then-attorney, John Collette, Mr. Shelton tendered his “best interest” plea to the Court on December 9, 2002, expecting to be passed to the next month’s session and his case to be thereafter non-adjudicated as he had been promised.

BUT…things worsened for Mr. Shelton. January of 2003 came and went without his case being called before the Court. The same in February, March, April and so on.

In the meantime, the Mississippi Bar filed an action before the Mississippi Supreme Court seeking to have Mr. Shelton’s law license suspended for the reason of his having previously tendered his “best interest” plea to the criminal charges.

In June of 2003, without the benefit of the non-adjudication previously promised to Mr. Shelton, the Mississippi Supreme Court suspended Mr. Shelton’s license to practice law in the State of Mississippi.

From June of 2003 until November of 2005, Mr. Shelton knew of no further action being taken on his criminal cases. Then, without forewarning and astonishingly, the criminal cases were dismissed on the motion of the State of Mississippi stating as its reason that “a thorough re-examination of the evidence reveals there is substantial doubt as to the ability of the State to carry its burden of proof in a trial. Consequently, the case lacks prosecutive merit. Judicial economy would not be served by taking this case to trial when there exists such strong doubt as to the merits of the case.”

The orders of remand with prejudice were signed and submitted by Robert H. Taylor, Chief Assistant District Attorney to then District Attorney Faye Peterson (African-American), Mr. Peters' successor, on behalf of the State of Mississippi, and entered on the docket without any action involved on the part of Mr. Shelton or with his foreknowledge.

Immediately upon learning of the dismissal of the criminal charges that resulted in the suspension of Mr. Shelton's law license, Mr. Shelton set about filing a petition for his reinstatement to the practice of law.

The Mississipi Bar vehemently opposed and vigorously fought Mr. Shelton's petition--to a point--which brings us up-to-date with our modern-day David and Goliath story.

Mr. Shelton didn’t win the first round before the Mississippi Supreme Court, but neither did the Mississippi Bar, which had sought Mr. Shelton’s permanent disbarment. Instead, the Mississippi Supreme Court appointed a Complaint Tribunal, the principal purpose for which was to look at the underlying circumstances of the dismissed criminal charges previously faced by Mr. Shelton.

In those immortal words of one now anonymous forever etched in time, “You better be careful what you wish for--you just might get it”, the Mississippi Supreme Court may have gotten more than it expected.

Mr. Kilpatrick obviously did his homework and strategically and methodically prepared Mr. Shelton’s case for the tribunal. First he subpoenaed all the files that the District Attorney had on Mr. Shelton (the criminal charges having been dismissed in November of 2005, there was no longer any on-going investigation to “protect”).

In response to the subpoena, the District Attorney produced, among a boxload of documents, a single page unsigned document called “MEMORANDUM FOR RECORD Re: An Overview of the Case of State vs Jennings“(Mr. Jennings being Mr. Shelton’s former client and alleged co-conspirator).

Contained in the memorandum were such nuggets in need of mining as, “With the help of this office, a script was prepared for Judge Patton [note: the formerly alleged victim, now apparently one of the alleged malfeasors] to use when he spoke to [Shelton and his client] and the conversation was to be recorded. This was done. After examining the transcript of the conversation, it was determined that Judge Patton deviated from the script given to him in many material ways"; “Everyone who reviewed the case at that time agreed there now was no case against either Shelton or Jennings. I know that Tommy Mayfield, Ed Peters, and another Assistant did [review the cases]. Again, it was agreed there was no case."; and "This case lacks, and has never had any prosecutive merit. The decision to send it on to the Grand Jury was an egregious error."

Having this memorandum in hand, and knowing that Senior Assistant District Attorney Robert Taylor signed the orders of dismissal for the State, Mr. Kilpatrick decided to take Mr. Taylor’s deposition on the hunch that Mr. Taylor was the author of the memorandum. And what a bonanza of insider information Mr. Taylor divulged after being sworn in; first and foremost being that Mr. Taylor admitted that he was the author of the memorandum and it was drafted approximately a week before he and then District Attorney Faye Peterson (successor to Ed Peters) dismissed the criminal charges against Mr. Shelton and his former client.

In a nutshell, and giving due credit to Lotus, reproduced herein is the essence of the corruption that was unveiled in Mr. Taylor’s deposition taken last spring with a representative of the Mississippi Bar in attendance:

Lotus put it splendidly:

"The wretched tale behind Case No. 2005-BR-2366 has, I must tell you, shocked and appalled even those as inured to Scruggsiana skulduggery as NMC and I. Among its features are these (all, by the way, now well-documented by the Mississippi Bar):

1. Former Hinds County District Attorney Ed Peters initiated, and for many years his office maintained, the prosecution of criminal charges against an attorney and the attorney’s client when Peters knew that he lacked probable cause to do so (just as did North Carolina’s ex-prosecutor — indeed, now ex-attorney and current convict – Mike Nifong, in the Duke Lacrosse case).

2. Peters’ senior assistant, disturbed by what had happened, prepared for the file a memorandum (one-page pdf) stating that – despite the fact that Peters, Tommy Mayfield, and another prosecutor had reviewed the cases against the attorney and his client and determined that “there was no case” against either of them – ”for reasons which were unclear to me, and will never be clear, the case against [them] is presented to the Grand Jury with the recommendation of this office that True Bills be returned as to both defendants for Conspiracy and Bribery. This was in fact done. … This case lacks, and never has had any prosecutive merit.”

3. In nudging the DA’s office to that point, Hinds County Judge Houston J. Patton seems to have withheld clearly exculpatory evidence (84-page pdf) and almost certainly lied to law enforcement investigators.

When presented at the deposition with evidence that tended to show that Mr. Shelton had only been trying to settle a 42 U.S.C.A. Section 1983 civil rights claim against Judge Patton for wrongs that Mr. Shelton was alleging that Judge Patton had previously done to his client, Mr. Taylor admitted that the additional evidence, had it been available, “would have weakened the case even more--."

Keep in mind that Messrs. Taylor and Peterson had already dismissed the criminal charges a year and a half earlier without the benefit of this additional evidence. I have reviewed the available exhibits entered the Supreme Court file in the Shelton Petition, including Mr. Taylor’s memorandum, his deposition, and the Tribunal’s Finding of Fact and Conclusions of Law, and I substantially concur with Lotus as to her assessment of the salient findings of the Tribunal relative to her first three points.

It should be acknowledged that the courageous dismissal of the criminal charges against Mr. Shelton, despite what Messrs. Taylor and Peterson surely strongly suspected would likely be serious political retaliation, was a highly commendable act of non-partisan conscientiousness and decency in accordance with higher principles.

Rule 3.8 of the Mississippi Rules of Professional Conduct is a specific provision setting forth the Special Responsibilities of a Prosecutor. Much like its North Carolina counterpart that was a large hammer in the Nifong case, Mississippi’s Rule 3.8 states in pertinent part that, “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause”. The comment to the rule states that, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence” (emphasis added).

In Mr. Shelton’s case, it appears that Mr. Peters failed miserably on both conditions.

Lotus went on to add:

"4. In his written report to the Mississippi Commission on Judicial Performance on a complaint that the attorney’s client had filed against Judge Patton, investigator Terry Grice alleged that he had interviewed two witnesses regarding the claims, and that both stated that they did not believe Judge Patton had done anything wrong. In fact, the two witnesses (twelve- and nine-page pdfs) swore that Grice had never interviewed them, and that if he had, both would have directly contradicted the opinions he attributed to them.

"5. In its response (two-page pdf) to the complaint tribunal’s findings and report (64-page pdf), the Mississippi Bar reversed its previously-strong opposition to the suspended attorney’s petition for reinstatement.

"This complete reversal, dated December 11, 2007, and signed by Adam B. Kilgore, was based on the Bar’s finally learning of and reviewing both law-enforcement tape recordings of conversations between the attorney and Judge Patton and the documents the two were discussing on the tapes. One of these was a copy of an original document that, according to the Hinds County DA’s office, Judge Patton had withheld from the office, even though the document was discussed, and even read from, in the taped conversations.

"The Bar now urges that the attorney’s license to practice be reinstated immediately.

These final points are also strongly and substantially supported by the evidence presented to the tribunal, not only as found in Mr. Taylor’s deposition but also in the Affidavit of Clarence M. “Don” Leland, Mr. Shelton’s former client’s criminal attorney (Lotus provides direct links to PDFs of both documents).

Just who is this upstart attorney who dared to take on the giant of the legal establishment in Mississippi pn behalf of Mr. Shelton?

Andrew Kilpatrick is a senior partner of the law firm of Gore, Kilpatrick & Dambrino, PLLC located in Ridgeland, Mississippi, a small but bustling town just to the north of Hinds County, in central Mississippi. Andy (as he is called by those he calls friends) is principally engaged in general commercial construction litigation and has gained a superb reputation in that field. But more importantly for the instant case, for three and a half years earlier in his professional career, Mr. Kilpatrick served as General Counsel to the Mississippi Bar, the very arm of the Supreme Court which he opposed on Mr. Shelton’s behalf.

Mr. Kilpatrick: “I do very little practice representing attorneys now, but when I do, it’s almost always because I believe that an attorney is not being treated fairly and needs my help. Keith’s case was just such a case.”

Mr. Kilpatrick obtained his Bachelor’s Degree from Ole Miss and his Juris Doctor’s degree cum laude from Mississippi College School of Law in 1979. He is a respected lawyer’s lawyer with the right philosophy: (1) if an attorney admits misconduct, he will work with that attorney to resolve the matter in the best manner possible but he will not seek to defend his actions per se and (2) if he attorney denies misconduct he will represent the attorney only if he believes that the conduct of the attorney is not in violation of the Rules of Professional Conduct.

Mr. Kilpatrick: "I was pretty skeptical of Mr. Shelton's case initially. But as I reviewed more and more documents and talked to the attorneys involved in the underlying criminal cases, I became convinced that an egregious injustice had been committed. It was then that I took the case, all the while, hoping not but still wondering in the back of my mind whether I had somehow missed something. When I checked the contents of the box received from the DA's office, I stopped wondering."

Obviously Mr. Kilpatrick did not miss a thing and did what a lawyer’s lawyer should do.

Messrs. Shelton and Kilpatrick eventually triumphed, but their triumph is not yet complete: Mr. Shelton’s law license has not yet been reinstated. The Misssissippi Supreme Court has received all that is has asked for (and then some, obviously, including the written recommendation of its empanelled tribunal, and the written response of the Mississippi Bar now strongly FAVORING Mr. Shelton’s immediate reinstatement.

Instead of continuing to dawdle, the justices of the Supreme Court of the State of Mississippi, if they want to help remove the stench around the State’s capital, should finally right an 11-year wrong and immediately reinstate the Nifonged J. Keith Shelton to the practice of law without further condition.

“folo” Lotus’ blog report on the Shelton case at http://folo.wordpress.com/2008/02/04/shelton-a-new-low-for-mississippi/.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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