MS Jud Perf Comm vs. Lillie Blackmon Sanders
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-CC-00575-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
LILLIE BLACKMON SANDERS
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
05/20/96
HON. JOHN C. LOVE, JR.
COMMISSION ON JUDICIAL PERFORMANCE
LUTHER T. BRANTLEY, III
BENNIE L. TURNER
CIVIL - JUDICIAL PERFORMANCE
AFFIRMED - 2/26/98
4/8/98
EN BANC.
ROBERTS, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. On August 11, 1995, the Mississippi Commission on Judicial Performance filed a formal
complaint charging Lillie Blackmon Sanders, Circuit Court Judge for the Sixth Circuit Court District
of Mississippi, with judicial misconduct. The Commission charged that Judge Sanders violated
Canons 1, 2A, 3A(1), 3A(4), and 3B(1), 3C(1)(b), of the Code of Judicial Conduct of Mississippi
Judges that constituted willful misconduct in office and conduct prejudicial to the administration of
justice which brings the judicial office into disrepute in violation of Section 177A, Mississippi
Constitution of 1890, as amended.
¶2. The formal complaint arose from the post-sentencing release of two prisoners. On December 13,
1995, a three-member panel of the Commission heard the matter. On February 9, 1996, the
Commission found that Judge Sanders had engaged in conduct constituting willful misconduct in
office and conduct prejudicial to the administration of justice which brings the judicial office into
disrepute. For these violations the Commission recommended that Judge Sanders be fined $1,500 and
be publicly reprimanded.
¶3. This case is substantially identical to this Court's recently published opinion, Mississippi
Commission on Judicial Performance v. Russell, 691 So. 2d 929 (Miss. 1997), and therefore is
affirmed.
I. DID THE CONDUCT OF JUDGE LILLIE BLACKMON SANDERS CONSTITUTE
WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE
ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO
DISREPUTE, PURSUANT TO § 177A OF THE MISSISSIPPI CONSTITUTION OF
1890, AS AMENDED?
II. SHOULD JUDGE LILLIE BLACKMON SANDERS BE PUBLICLY
REPRIMANDED, FINED $1,500 AND ASSESSED THE COSTS OF THIS
PROCEEDING BY THE MISSISSIPPI SUPREME COURT, PURSUANT TO § 177A
OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED?
STATEMENT OF THE FACTS
¶4. Lillie Blackmon Sanders was elected and began to serve her term as Circuit Judge for the Sixth
Circuit Court District of Mississippi on January 2, 1995. Although not clearly stated in the record,
Judge Sanders previously served in the same position during a portion of 1989-1990.
¶5. Based upon an anonymous complaint, on August 11, 1995, the Mississippi Commission on
Judicial Performance filed a formal complaint charging Judge Sanders with judicial misconduct
constituting violations of Canons 1, 2A, 3A(1), 3A(4), and 3B(1), 3C(1)(b), of the Code of Judicial
Conduct of Mississippi Judges and constituting willful misconduct in office and conduct prejudicial to
the administration of justice which brings the judicial office into disrepute in violation of Section
177A, Mississippi Constitution of 1890, as amended.
¶6. The alleged judicial misconduct arose from the post-sentencing release of two inmates after the
term of court during which they were sentenced. The Commission charged that Judge Sanders, acting
in her official capacity, entered an order which suspended the sentence of a former client and entered
an order which suspended the sentence and placed another inmate on probation following a mandate
from the Mississippi Court of Appeals which affirmed his conviction and sentence. Moreover, the
Commission charged that Judge Sanders entered these orders with the knowledge that she lacked
both the authority and jurisdiction to do so.
¶7. On October 13, 1995, Judge Sanders filed her answer to the formal complaint. On December 13,
1995, a hearing was held before a Commission committee, comprised of Judge John M.
Montgomery, Judge Gaston H. Hewes, Jr. and Margarett E. Steele. The hearing allowed each side to
present testimony and material evidence.
¶8. On February 9, 1996, the Commission filed its findings of fact and recommendation. The
Commission declared its findings of fact:
Based on the testimony and evidence presented in this cause, the Commission finds the
following by clear and convincing evidence, to-wit:
6. The Respondent, in her official capacity as Circuit Court Judge, entered an order on May 9,
1995, in the Circuit Court of Adams County, Mississippi, in Cause No.'s 8945, 8946, and
10016, in which she suspended the sentence previously entered in these cases. The Commission
finds that the Respondent did this with the full knowledge that she lacked jurisdiction to enter
such orders. The Respondent acknowledges that she did not consider the Uniform Post
Conviction Relief Act in these matters and the Commission finds that the time for entering any
such orders, other than Post Conviction, had previously run. The Commission also finds that the
Respondent was, or should have been, aware of Section 47-7-33 of the Mississippi Code
Annotated, Harrgill v. State, 403 So. 2d 867 (Miss. 1981) as well as the Canons of the Code of
Judicial Conduct.
The Commission finds Judge Sanders' orders violated Canons 1, 2A, 3A(1), 3A(4) and 3B(1) of
the Code of Judicial Conduct of Mississippi Judges.
COUNT II
7. The Respondent had represented the defendant in cause No's 8945 and 8946, and then as
Circuit Judge entered the order suspending the sentence in each case. The Commission finds
that while there was a scrivener's error in the numbers on the orders presented to the judge, the
only cases in Adams County concerning this defendant were those in which the Respondent had
represented the defendant. The Commission further finds that previous representations of a
defendant should have put the respondent on notice that a close examination of all proceedings
involving the defendant would be necessary.
By engaging in the aforementioned conduct, the Respondent violated Canons 1, 2A, 3A(1),
3A(4), 3B(1) and 3C(1)(b) of the Code of Judicial Conduct of Mississippi Judges.
COUNT III
8. The Court of Appeals issued a Mandate in a case from Amite County styled Charles H.
Spears v. State of Mississippi, #93-KA-00945-COA, which affirmed a six month sentence
previously imposed by the trial court. The Respondent, upon motion of the defendant's lawyer,
entered an order suspending the jail sentence and placing the defendant on probation. The
Commission finds that the Respondent did this with the full knowledge that a trial court lacks
any authority to change a Mandate of an appellate court.
The Respondent's conduct in suspending the Mandate violated the principles set down in
Denton v. Maples, 394 So. 2d 895 (Miss. 1981), Lewis v. State, 414 So. 2d 437 (Miss. 1982),
and Canons 1, 2A, 3A(1), 3A(4), and 3B(1) of the Code of Judicial Conduct of Mississippi
Judges.
RECOMMENDATION
Based upon the foregoing the Commission finds and by clear and convincing evidence that the
conduct of the respondent, Judge Lillie Blackmon Sanders, constitutes willful misconduct in
office and conduct prejudicial to the administration of justice which brings the judicial office
into disrepute, pursuant to Section 177A of the Mississippi Constitution of 1890, as amended.
The Commission recommends to the Mississippi Supreme Court that the Respondent be
publicly reprimanded and fined $1,500.00 pursuant to section 177A of the Mississippi
Constitution of 1890 and assessed costs.
¶9. The facts, circumstances and hearing testimony relevant to each matter is set forth in the
following summaries:
Annie Mae Washington Binion
¶10. The first case in question is that of Annie Mae Washington Binion, Cause Numbers 8945, 8946
and 10016 in the Circuit Court of Adams County, Mississippi. On February 16, 1990, in Cause No.
8945 and 8946, Binion pled guilty to the felony charges of sale of marijuana and sale of valium. Lillie
Blackmon Sanders was Binion's counsel of record. Circuit Judge Richard T. Watson accepted the
guilty pleas and sentenced Binion to five years imprisonment in Cause No. 8945 and one year
imprisonment in Cause No. 8946. Because of Binion's drug addiction, she was allowed to participate
in the Regimented Inmate Discipline (RID) program. Judge Sanders testified that she had no further
contact with Binion until she took office as Circuit Court Judge.
¶11. On April 26, 1994, Binion pled guilty in Cause No. 10016 to felony shoplifting; Lillie Blackmon
Sanders was not counsel of record in this case. Judge Watson again presided. On April 27, 1994,
Binion's probation (from Cause Nos. 8945 & 8946) was revoked by Judge Watson. On May 7, 1995,
Judge Sanders suspended the sentences in Cause Nos. 8945, 8946 and 10016.
¶12. Judge Sanders testified she began to practice law in 1979, primarily in Adams County. Although
she represented Binion in 1990, Judge Sanders stated that very little of her law practice consisted of
criminal work. Judge Sanders testified, upon taking over as a judge, she was assigned Judge Watson's
old office. On her desk was a motion from Binion's attorney and proposed order suspending her
sentence. She spoke with Judge Watson regarding the Binion case and other holdover cases. Judge
Sanders stated that in the following months she received several letters from Binion and spoke with
Binion's attorney regarding the intent of Judge Watson to release Binion when she completed the
alcohol and drug program.
¶13. Judge Sanders stated she knew Binion was a former client of hers and was concerned there
might be a conflict of interest. As a result, she went to the circuit clerk's office and pulled Cause No.'s
8945 and 8946 but did not see anything referencing Cause No. 10016. Judge Sanders testified that
she was unsure of what she should do, so she called Assistant District Attorney Ronnie Harper and
Parole Officer Ronnie Brown for advice.
¶14. Judge Sanders testified that she reviewed the court file for Cause No. 10016 but admitted that
she did not review the transcript. After hearing a portion of the transcript from Cause No. 10016,
Judge Sanders agreed that there is no question that the circuit court did not retain jurisdiction in
Cause No. 10016. However, Judge Sanders stated personal conversations with Judge Watson led her
to believe the court had retained jurisdiction. Judge Watson was not called as a witness to verify this
testimony.
¶15. Judge Sanders testified that an informal discussion, in chambers, regarding Binion's release was
held between Judge Sanders, counsel for Binion and Assistant District Attorney Ronnie Harper. No
record or transcript of the meeting was taken. Harper stated the District Attorney's office would not
pursue another unrelated charge against Binion and did not have any objection to the order
suspending sentence. After this meeting, Judge Sanders instructed the court administrator to type the
May 10, 1995, order which suspended Binion's sentence. Unknown to Judge Sanders, the court
administrator transposed the Cause No.'s from 8945 and 8946 to 9845 and 9846. Judge Sanders
testified that after she signed the order she did not look any further into the matter. Judge Sanders
stated she did not know she was entering an order in the same matter in which she had represented
Binion. Judge Sanders admitted she could have directed the circuit clerk to pull all cases involving
Binion, and to discover if there were actually four prior convictions to Cause No. 10016 or just the
two convictions.
¶16. Next, Judge Sanders stated the Department of Corrections had sent a letter (not produced at the
hearing) indicating Binion had completed the drug and alcohol program and requested "some kind of
order." Judge Sanders knew Binion had been convicted for felony shoplifting and sentenced to five
years imprisonment in Cause No. 10016. Judge Sanders testified she assumed Judge Watson had
retained jurisdiction for one year, although, by her own admission, no jurisdiction was retained.
¶17. On May 29, 1995, Joe Goff from the Attorney General's Office called Judge Sanders and
informed her she had no jurisdiction to suspend the sentence. After their conversation, Judge Sanders
researched the jurisdiction and discovered she had none. At this time, she learned that the Cause
No.'s had been transposed by the clerk from 8945 and 8946 to 9845 and 9846. Judge Sanders pulled
the files and realized she had entered an order suspending a sentence for a client she had represented
in the same matter. On May 30, 1995, Judge Sanders entered an order rescinding the May 9, 1995,
order that suspended Binion's sentence and granted probation.
¶18. Judge Sanders stated she did not know until the summer of 1995 a convicted felon is not eligible
for probation on a subsequent offense. Counsel for Judge Sanders stipulated Denton v. Maples, 394
So. 2d 895 (Miss. 1981), and Harrigill v. State, 403 So. 2d 867 (Miss. 1981), prohibit modifying,
changing or suspending a sentence of a felony after the term of court. Judge Sanders stated she did
not speak with anyone regarding the appearance of impropriety of her hearing Binion's case.
¶19. When asked if she had read the Judicial Canons, and if the Canons prohibited her from hearing
cases and motions, as those involving former clients like Binion, Sanders testified,"I was--I went back
and I did look at the Canons, and it did not--from the Canons it did not appear that I was disqualified
from hearing cases." She stated in reviewing the court file of Cause No. 10016, she did not read the
indictment which listed Binion's prior convictions in Cause No.'s 8945 and 8946. Judge Sanders
stated she does not think acting in Cause No. 10016 pertaining to a former client created an
appearance of impropriety. Judge Sanders stated, "I view that as having your former law partners
appear before you in -- in situations. And if it's something that if enough time has passed between that
-- and in this particular case, a period of five years had expired between the time that I had last
represented -- well, the time I represented her. There was no ongoing relationship or ongoing
communications with Ms. Binion. I had not seen or heard from this lady since the day she took her
plea." Sometime after May, 1995, Judge Sanders attended the Judicial National College, and she
stated she now knows all ex parte communications are improper.
Charles H. Spears
¶20. The second case is the matter of Charles H. Spears, Cause No. 2315 in the Circuit Court of
Amite County. Spears and Amite County Supervisor Max Lawson were involved in an altercation
which resulted in the arrest of Spears. On July 7, 1993, Spears was convicted of disorderly conduct
and was sentenced to six months in jail and fined $500 by Judge Watson. Spears appealed, and on
April 11, 1995, the Court of Appeals, in Charles H. Spears v. State of Mississippi, No. 93-KA00945 COA, affirmed Spears's conviction and sentence. On May 3, 1995, the mandate was entered
by the Court of Appeals. On May 15, 1995, Judge Sanders suspended the sentence.
¶21. On May 14, 1995, Judge Sanders received a telephone call from Max Lawson, the complainant,
who asked Judge Sanders to suspend the sentence of Spears because he did not want Spears to be
imprisoned. Judge Sanders admitted she knew that Spears was a jury trial that was appealed and
affirmed by the Court of Appeals. Judge Sanders told Lawson to have an attorney contact her. She
contacted Assistant District Attorney Ronnie Harper who again stated she could do as she wanted.
She also researched the law and read Miss. Code Ann. § 99-19-25 and Cassibry v. State, 453 So. 2d
1298 (Miss. 1984). The next day, Bryan Harbour, counsel for Spears, presented Judge Sanders with
an order suspending Spears sentence, which she signed. Judge Sanders stated that she understood §
99-19-25 to grant circuit courts jurisdiction with full authority to exercise all powers vested by the
law, regardless of a Supreme Court mandate, because the statute does not mention such a mandate.
Counsel for the Commission questioned Judge Sanders regarding her understanding of Harrigill v.
State, which states a mandate cannot be altered. Judge Sanders stated because Harrigill was a felony
case it does not apply to misdemeanor cases like Charles Spears.
¶22. Judge Hewes asked Judge Sanders if there was a representative of the State present when she
signed the order which suspended the sentence of Charles Spears. Judge Sanders stated there was
not, but that Harper knew she planned to sign the order, and he did not object. No record was made
of the hearing involving Spears.
¶23. Parole Officer Ronnie Brown and Circuit Court Administrator Micki Smith testified, however,
their testimony did not add anything to that stated above.
¶24. On February 9, 1996, the Commission filed its findings of fact and recommendation. On May 2,
1996, Judge Sanders filed her objections to the findings of fact.
DISCUSSION OF THE ISSUES
¶25. The appropriate standard of review used in a judicial disciplinary proceeding is derived from
Rule 10(E) of the Rules of the Mississippi Commission on Judicial Performance, which states:
Based upon a review of the entire record, the Supreme Court shall prepare and publish a written
opinion and judgment directing such disciplinary action, if any, as it finds just and proper. The
Supreme Court may accept, reject, or modify, in whole or in part, the findings and
recommendation of the Commission. In the event that more than one (1) recommendation for
discipline of the judge is filed, the Supreme Court may render a single decision or impose a
single sanction with respect to all recommendations.
Mississippi Commission on Judicial Performance v. Chinn, 611 So. 2d 849, 850 (Miss. 1992);
Mississippi Judicial Performance Commission v. Hopkins, 590 So. 2d 857 (Miss. 1991). Although
the Court is not bound by the Commission's findings, they are given great deference when based on
clear and convincing evidence. Chinn, 611 So. 2d at 850; Mississippi Judicial Performance
Commission v. Walker, 565 So. 2d 1117, 1119 (Miss. 1990).
I. DID THE CONDUCT OF JUDGE LILLIE BLACKMON SANDERS CONSTITUTE
WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE
ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO
DISREPUTE, PURSUANT TO § 177A OF THE MISSISSIPPI CONSTITUTION OF
1890, AS AMENDED?
¶26. Section 177A of the Mississippi Constitution of 1890 provides that upon recommendation of the
Commission, this Court may sanction judges for "willful misconduct in office or conduct which is
prejudicial to the administration of justice which brings the judicial office into disrepute." This Court
has defined "willful misconduct" as follows:
Willful misconduct in office is the improper or wrongful use of the power of his office by a
judge acting intentionally, or with gross unconcern for his conduct, and generally in bad faith. It
involves more than an error of judgment or a mere lack of diligence. Necessarily, the term
would encompass conduct involving moral turpitude, dishonesty, or corruption and also any
knowing misuse of the office, whatever the motive. However, these elements are not necessary
to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish
a purpose which the judge knew or should have known was beyond the legitimate exercise of
his authority constitutes bad faith.
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice
that brings the judicial office into disrepute. However, a judge may also, through negligence or
ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of
justice so as to bring the judicial office into disrepute.
Mississippi Commission on Judicial Performance v. Russell, 691 So. 2d 929, 937 (Miss. 1997);
Mississippi Commission on Judicial Performance v. Milling, 651 So. 2d 531, 538 (Miss. 1995);
Mississippi Commission on Judicial Performance v. Gunn, 614 So. 2d 387, 390 (Miss. 1993).
¶27. A judge does not have the authority to suspend the execution of a sentence after it has been
imposed. Fuller v. State, 100 Miss. 811, 57 So. 806 (1912). This court has stated that "the only time
a trial judge can suspend a sentence is immediately after the defendant is convicted and at the time the
trial judge announces and imposes sentence." Denton v. Maples, 394 So. 2d 895, 898 (Miss. 1981).
Further, this Court has stated that if a case is appealed to this court and affirmed, "[t]here is no
authority in the circuit court, or indeed this Court, following the issuance of a mandate affirming the
case, to modify a judgment and sentence theretofore imposed." Harrigill v. State, 403 So. 2d 867,
868 (Miss. 1981). Miss. Code Ann. § 47-7-33 addresses the power of the circuit court to suspend
sentences and place defendants on probation. This statute identifies two key areas: (1) the circuit
court of original jurisdiction cannot suspend the execution of a sentence of imprisonment after the
defendant has begun to serve such sentence, except for § 47-7-47; and (2) the circuit court of original
jurisdiction cannot suspend a sentence and place a defendant on probation where the defendant has
been previously convicted of a felony in any court in the United States.
Annie Mae Washington Binion
¶28. Judge Sanders stated she knowingly suspended the sentence of her former client, whom she
knew to have three felony convictions. This conduct is clearly prohibited by three areas of Mississippi
law.
¶29. First, § 47-7-33 (2) states that the circuit court is prohibited from suspending the sentence of a
previously convicted felon and placing that felon on probation. In comparison, Judge Sanders
intentionally suspended the sentence of a previously convicted felon whom she admittedly knew to
have three felony convictions, a clear violation of § 47-7-33.
¶30. Secondly, the Denton Court stated that a trial judge can only suspend a sentence immediately
after the defendant is convicted and at the time the sentence is announced and imposed. The
sentences in Cause Numbers 8945 and 8946 were announced in 1989, and Judge Watson retained
jurisdiction and allowed Binion to participate in the RID program. Binion was released on parole
following the completion of the RID program. However, the circuit court's jurisdiction ended upon
the revocation of Binion's parole because of her conviction in Cause Number 10016. Judge Sanders
suspended Binion's sentences in 1995, more than five years after the announcement and imposition of
sentencing.
¶31. Finally, the Mississippi Code of Judicial Conduct Canon 3 (C)(1)(b) states that a judge should
disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including
instances where he served as an attorney in the matter in controversy. Judge Sanders testified that she
had numerous ex parte communications with Binion and Binion's new attorney beginning in January,
1995. Based upon these communications, Judge Sanders engaged in more ex parte communications
as she contacted Judge Watson, the district attorney's office, Binion's parole officer and the MDOC.
Judge Sanders testified that she knew that she was suspending three of Binion's sentences, but she did
not know that she had suspended those sentences in which she had represented Binion in 1989,
because the order listed Cause Numbers 9845 and 9846. However, based on Judge Sanders' own
testimony, she had pulled the court file in Cause Numbers 8945 and 8946 prior to entering the order.
Judge Sanders knew or should have known that the sentences she suspended were the same as her
prior representation of Binion. A judge may not escape the penalties for improper conduct based
upon an alleged mistake within a prohibited matter.
¶32. To her credit, Judge Sanders stated she made a mistake and now knows what the correct law is
in this area. The order suspending Binion's sentence was entered May 9, 1995. Judge Sanders was
first informed on May 29, 1995, that she did not have jurisdiction to enter such order and
accordingly, on May 30, 1995, an order was entered rescinding the May 9, 1995, order.
Charles H. Spears
¶33. Charles Spears was convicted by a jury of misdemeanor disorderly conduct. Upon appeal, the
Mississippi Court of Appeals affirmed and issued a mandate May 3, 1995. Judge Sanders testified
that she received a telephone call from Max Lawson requesting Spears's sentence be suspended on
May 14, 1995. Judge Sanders instructed Lawson to have an attorney contact her on behalf of Spears.
Judge Sanders testified that she engaged in more ex parte communications and she contacted
Assistant District Attorney Harper for advice. The following day, counsel for Spears presented Judge
Sanders with a proposed order that would suspend the sentence of Spears. Judge Sanders signed and
entered the order May 15, 1995. No hearing was held before signing the order, nor was a
representative of the state present. Judge Sanders stated she knew Charles Spears's conviction and
sentence had been affirmed by the Mississippi Court of Appeals.
¶34. Judge Sanders testified that she also relied upon Cassibry v. State, 453 So. 2d 1298 (Miss.
1984), which she contends recognizes different jurisdictional rights of the circuit courts in felony and
misdemeanor cases. However, her reliance on Cassibry is flawed; this case is good authority but it
does not stand for what Judge Sanders proclaims. Cassibry had been convicted of a misdemeanor and
given a $45,000 fine; he appealed and this Court affirmed. Cassibry v. State, 404 So. 2d 1360 (Miss.
1981). Cassibry could not pay the fine, and the trial judge ordered that Cassibry be incarcerated.
Cassibry appealed, and this Court held that the trial court did not have the authority to alter the
sentence and order that Cassibry be incarcerated. This Court stated, "Harrigill v. State, 403 So. 2d
867 (Miss. 1981), and Denton v. Maples, 394 So. 2d 895 (Miss. 1981), suggest that the Circuit
Court is without authority to alter Cassibry's sentence that he pay a fine of $45,000.00, and we so
hold." Id. at 1299. The Court explained that, although the circuit court is without authority to alter
Cassibry's sentence, the circuit court is not helpless. The trial court had other methods of collecting
the fine, such as requiring Cassibry to perform public service to work off his fine or an installment
plan to pay the fine. Judge Sanders relies on the passage, "In the first place, this Court's jurisdiction
terminated with the issuance of the mandate following the denial of Cassibry's petition for rehearing
back on November 4, 1981. Upon receipt of that mandate, the Circuit Court acquired jurisdiction of
the case with full authority to exercise all powers otherwise vested in it by law." Id. Obviously, Judge
Sanders did not read Harrigill and Denton. In Harrigill v. State, 403 So. 2d 867, 868-869 (Miss.
1981) the Court stated:
In Denton v. Maples, 394 So. 2d 895 (Miss. 1981), we announced what we thought was
already manifest: once a case has been appealed from the circuit court to this Court, the circuit
court loses jurisdiction to amend or modify its sentence. If the case is affirmed, the lower court
is issued a mandate to perform purely ministerial acts in carrying out the original sentence.
There is no authority in the circuit court, or indeed this Court, following the issuance of a
mandate affirming the case, to modify a judgment and sentence theretofore imposed. In the
absence of some statute authorizing such modification, and presently there is none, once a case
has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its
judgment.
When a criminal case has been completed and the term of court ends, unless the circuit court
has deferred sentence, or placed the defendant upon a suspended sentence and retained
jurisdiction for this specific purpose as authorized by statute, the power of the circuit court to
alter or amend its sentence is terminated. If the case is duly appealed to this Court, this Court
has appellate jurisdiction to either affirm, reverse and remand, or reverse and render the
judgment the lower court should have rendered. It is only when the case is remanded for a new
trial that the circuit court is again invested with discretionary authority with reference to that
particular case.
The only avenue of relief available for people incarcerated is through the executive branch of
our government, unless there is some statutory or constitutional right being violated, in which
latter event to address the appropriate court by an appropriate original proceeding. Following
conviction and final termination of a case, however, neither the circuit court nor this Court has
power to simply review a case and decide whether or not the original sentence should be
amended in any way. Any attempt to do so is a nullity. See State v. Dunn, 111 N.H. 320, 282
A.2d 675 (1971); Hulett v. State, 468 S.W.2d 636 (Mo. 1971); People v. Fox, 312 Mich. 577,
20 N.W.2d 732 (1945), 168 A.L.R. 703; 24B C.J.S. Criminal Law § 1952(7).
¶35. Judge Sanders defies the plain language of Cassibry and states that Harrigill and Denton do not
apply to misdemeanor cases. Cassibry expressly adopted the propositions of Harrigill and Denton,
thus making no distinction between felony and misdemeanor cases. Accordingly, Judge Sanders has
no justification for entering the order suspending the sentence of Spears.
¶36. Also, Judge Sanders stated that she relied on Miss. Code Ann. § 99-19-25, which states; "The
circuit courts and the county courts, in misdemeanor cases, are hereby authorized to suspend a
sentence and to suspend the execution of a sentence, or any part thereof, on such terms as may be
imposed by the judge of the court. Provided, the suspension of imposition or execution of a sentence
hereunder may not be revoked after a period of five (5) years." Judge Sanders stated her
understanding of this statute gives the circuit court authority to suspend a sentence even after an
appellate court mandate by the Mississippi Supreme Court or the Mississippi Court of Appeals. As
explained above, this Court's holding in Denton is applicable to both felony and misdemeanor cases.
Thus, Judge Sanders exercised jurisdiction with which she was not vested in the release of Spears.
After the Court of Appeals affirmed Spears's conviction, Judge Sanders was without any authority or
jurisdiction to alter or suspend the sentence.
¶37. If she was not, Judge Sanders should have made herself aware of Mississippi law, and should
have known that she was prohibited from suspending the sentences of Binion and Spears.
The Mississippi Code of Judicial Conduct
¶38. The Commission recommends that the Court find Judge Sanders's violations of Canons 1, 2, 2A,
2A, 2B, 3A(1), 3A(4), 3B(1) and 3C(1) of the Code of Judicial Conduct constitute willful
misconduct in office and conduct prejudicial to the administration of justice which brings the judiciary
into disrepute pursuant to § 177A of the Mississippi Constitution of 1890, as amended, and as
defined by the Court. The Judicial Canons that Judge Sanders was found to have violated are
presented with discussion.
¶39. Canon 1 of the Mississippi Code of Judicial Conduct provides:
A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge
should participate in establishing, maintaining, and enforcing, and should himself observe, high
standards of conduct so that the integrity and independence of the judiciary may be preserved.
The provisions of this Code should be construed and applied to further that objective.
¶40. Judge Sanders' conduct violated the integrity and independence of the judiciary. Judge Sanders
knowingly suspended the sentences of a former client, in the same matter as the earlier
representation, whom she knew to have multiple felony convictions. Judge Sanders' conduct violated
statutory law, case law and the Judicial Canons. Further, the release of a convicted misdemeanant,
following an affirmed conviction and sentence from a superior court, fails to uphold the integrity of
the judiciary. The unauthorized release of convicted criminals questions the integrity of the judiciary.
¶41. Canon 2 of the Mississippi Code of Judicial Conduct provides:
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
¶42. Commentary to this Canon states:
A judge must avoid all impropriety and appearances of impropriety. Public confidence in the
judiciary is eroded by irresponsible or improper conduct by judges. A judge must expect to be
the subject of constant public scrutiny, and therefore accept restrictions on his conduct that
might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
¶43. As discussed earlier, Judge Sanders' conduct was improper and prohibited. Judge Sanders'
conduct circumvented the law of this state. Although directly prohibited by law, Judge Sanders
suspended the sentences of a former client, who was ineligible for release and knowingly suspended a
sentence following a mandate from the Mississippi Court of Appeals that affirmed the conviction and
sentence. Public confidence in the judiciary was eroded by the knowing disregard of Mississippi law
by Judge Sanders. Judge Sanders' unauthorized release of the two criminals is an actual impropriety.
¶44. Canon 2A provides:
A judge should respect and comply with the law and should conduct himself at all times in a
manner that promotes public confidence in the integrity and impartiality of the judiciary.
¶45. Judge Sanders did not respect and comply with Mississippi law. Judge Sanders acted without
jurisdiction or authority to enter the orders which suspended the sentences of the two inmates. The
conduct of Judge Sanders destroyed the public confidence in the integrity and impartiality of the
judiciary.
¶46. Canon 2B of the Mississippi Code of Judicial Conduct provides:
A judge should not allow his family, social, or other relationships to influence his judicial
conduct or judgment. He should not lend the prestige of his office to advance the private
interest of others; nor should he convey or permit others to convey the impression that they are
in a special position to influence him. He should not testify voluntarily as a character witness.
¶47. Judge Sanders allowed the prestige of her office to be used to advance private interests. The
unauthorized release of a former client from confinement and the release of another prisoner upon
request diminishes the public confidence in the judiciary's independence and impartiality. Judge
Sanders allowed the public to believe that a former client and a county supervisor were in a special
position to influence Judge Sanders, and did use their special relationships with Judge Sanders to
affect her judgment.
¶48. Canon 3A(1) of the Mississippi Code of Judicial Conduct provides:
A judge should be faithful to the law and maintain professional competence in it. He should be
unswayed by partisan interests, public clamor, or fear of criticism.
¶49. Judge Sanders admitted that she was not competent in areas of law effecting the release of
Binion and Spears. Judge Sanders' failure to understand the law resulted in her failure to uphold the
law of this state. Further, Judge Sanders admitted that she allowed ex parte communications to effect
her decisions to enter the orders.
¶50. Canon 3A(4) of the Mississippi Code of Judicial Conduct provides:
A judge should accord to every person who is legally interested in a proceeding, or his lawyer,
full right to be heard according to law, and, except as authorized by law, neither initiate nor
consider ex parte or other communications concerning a pending or impending proceeding. A
judge, however, may obtain the advice of a disinterested expert on the law applicable to a
proceeding before him if he gives notice to the parties consulted and the substance of the
advice, and affords the parties reasonable opportunity to respond.
¶51. Judge Sanders testified that she initiated and participated in many ex parte communications. She
testified she now knows better, however, she did not explain why she chose not to contact a circuit
court judge from another district for advice, as allowed by the Canon.
¶52. Canon 3B(1) of the Mississippi Code of Judicial Conduct provides:
A judge should diligently discharge his administrative responsibilities, maintain professional
competence in judicial administration, and facilitate the performance of the administrative
responsibilities of other judges and court officials.
¶53. Judge Sanders' conduct violated this Canon. Judge Sanders signed an order which suspended the
sentence of a former client without a hearing. Further, Judge Sanders knowingly released and
suspended the sentence of Spears after the Mississippi Court of Appeals had affirmed his conviction
and sentence.
¶54. Canon 3C(1)(b) of the Mississippi Code of Judicial Conduct provides:
A judge should disqualify himself in a proceeding in which his impartiality might reasonably be
questioned, including but not limited to instances where:
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously
practiced law served during such association as a lawyer concerning the matter, or the judge or
such lawyer has been a material witness concerning it.
¶55. Judge Sanders served as Binion's counsel in cause No.'s 8945 and 8946 and later suspended
these sentences in her capacity as judge. Because her impartiality was reasonably questioned, Judge
Sanders was disqualified in Binion's matter by this Canon.
II. SHOULD JUDGE LILLIE BLACKMON SANDERS BE PUBLICLY
REPRIMANDED, FINED $1,500 AND ASSESSED THE COSTS OF THIS
PROCEEDING BY THE MISSISSIPPI SUPREME COURT, PURSUANT TO § 177A
OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED?
¶56. Section 177A of the Mississippi Constitution of 1890, as amended, provides upon
recommendation of the Commission, a judge may be removed, suspended, fined, publicly censured or
publicly reprimanded by the Mississippi Supreme Court. The Commission has recommended that
Circuit Court Judge Lillie Blackmon Sanders be publicly reprimanded, fined $1,500 and assessed the
costs of this proceeding. In judicial misconduct proceedings, this Court is the trier of fact, and it has
sole power to impose sanctions. In re Quick, 553 So. 2d 522, 527 (Miss. 1989); In re Collins, 524
So. 2d 553, 556 (Miss.1988); In re Garner, 466 So. 2d 884, 885 (Miss. 1985). Although this Court
has an obligation to conduct an independent inquiry, it nonetheless gives great weight to the findings
of the Commission, which has had the opportunity to observe the demeanor of the witnesses. In re
Collins, 524 So. 2d at 556; In re Garner, 466 So. 2d at 885;. See also Mississippi Judicial
Performance Commission v. Walker, 565 So. 2d 1117, 1119 (Miss. 1990).
¶57. In the case at bar, the Commission has recommended that Judge Sanders be publicly
reprimanded, fined $1,500 and taxed with all costs of this proceeding. This Court approved the same
sanctions in a recent, near identical matter, Mississippi Commission on Judicial Performance v.
Russell. The Commission has recommended and the Court has imposed public reprimands and fines
upon justice court judges for "fixing" tickets or acting in excess of their authority. See Mississippi
Commission on Judicial Performance v. Underwood, 644 So. 2d 458 (Miss. 1994); Gunn, 614 So.
2d at 390-391.
¶58. Factors have been established by the Court to determine if a public reprimand should be
imposed. Walker, 565 So. 2d at 1125; In re Baker, 535 So. 2d 47, 54 (Miss. 1988). These factors
include:
(1) The length and character of the judge's public service.
¶59. Judge Sanders has served as Circuit Court Judge since 1995, and she held the same position
during a portion of 1989-1990. No witnesses testified as to the character and public service of Judge
Sanders.
(2) Positive contributions made by the judge to the courts and the community.
¶60. Judge Sanders offered no evidence on this factor.
(3) The lack of prior judicial precedent on the incident in issue.
¶61. According to Mississippi statute and case law, Judge Sanders was clearly wrong to release
Binion and Spears. Judge Sanders admitted to many ex parte communications which are clearly in
violation of the Judicial Canons. Judge Sanders stated she read the Judicial Canons and believed she
did not violate any rules of judicial conduct; if she had read the Canons she would not have heard or
issued an order in the Binion matter. Judge Sanders knew or should have known the limits of her
authority. This weighs heavily in favor of public reprimand.
(4) Commitment to fairness and innovative procedural form on the part of the judge.
¶62. Judge Sanders offered no evidence on this factor.
(5) The magnitude of the offense.
¶63. Mississippi law clearly defined the limits of a circuit court judge's authority. Judge Sanders'
conduct of releasing two convicted defendants without authority or jurisdiction to do so represents
the type of behavior that tarnishes the dignity of the judiciary before the public. This weighs heavily in
favor of public reprimand.
(6) The number of persons affected.
¶64. It is difficult to quantify the number of persons affected. However, the improper and
unauthorized release of two inmates tarnishes the image of the Mississippi Judiciary before the entire
state.
(7) Whether "moral turpitude" was involved.
¶65. The Commission contends moral turpitude was not involved.
¶66. The Commission asserts Judge Sanders' misconduct is extremely serious. The sanction should
recognize the misconduct, deter and discourage similar behavior, preserve the dignity and reputation
of the judiciary and protect the public. Hall v. The Mississippi Bar 631 So. 2d 120, 125 (Miss.
1993); The Mississippi Bar v. Hall, 612 So. 2d 1075-1077-78 (Miss. 1992);Mississippi State Bar v.
Blackmon, 600 So. 2d 166, 173 (Miss. 1992); Mississippi Bar v. Strauss, 601 So. 2d 840, 844
(Miss. 1992); Attorney Q v. Mississippi State Bar, 587 So. 2d 228, 234 (Miss. 1991); Fougerousse
v. Miss. State Bar Ass'n, 563 So. 2d 1363, 1366 (Miss. 1990) . Having weighed each factor, we are
of the opinion that a public reprimand is warranted. As previously stated, this Court has upheld a
public reprimand in Russell in which the circuit court judge suspended the sentences of four inmates
while lacking any authority or jurisdiction to do so. Likewise, Judge Sanders, acting without
authority or jurisdiction, suspended the sentence of a former client and later released and placed a
second inmate on probation after his conviction and sentence had been affirmed by a superior court.
Judge Sanders' testimony that she believed she acted within her jurisdiction after having read the
Judicial Canons and applicable case law is inconceivable. The facts and testimony presented support
the recommendations of the Commission.
CONCLUSION
¶67. The conduct of Judge Sanders constitutes willful misconduct in office and conduct prejudicial to
the administration of justice which brings the judicial office into disrepute, in violation of § 177A of
the Mississippi Constitution of 1890, as amended. The Commission recommends a sanction of public
reprimand and a $1,500 fine pursuant to § 177A of the Mississippi Constitution. Finally, the
Commission submits that costs of this proceeding should be taxed to Judge Sanders pursuant to Rule
36 of the Mississippi Rules of Appellate Procedure.
¶68. Judge Sanders admitted that she had knowingly released a former client, and released a second
inmate although she knew that his conviction and sentence were affirmed by the Mississippi Court of
Appeals. Judge Sanders relies upon her misreading of clear Mississippi law for her defense in regard
to Spears, and still proclaims her innocence. Her argument is without merit. Judge Sanders admitted
she had ex parte communications with Binion, Binion's attorney, the district attorney's office, and
Spears's attorney. Further, Judge Sanders admitted to asking a parole officer for advice regarding
Binion. Finally, Judge Sanders states her constitutional right of confrontation has been violated due
to an anonymous tip to the Commission which led to the formal charges. Because Judge Sanders
admitted to the misconduct of releasing Binion and Spears, this argument is without merit and does
not warrant discussion. Judge Sanders' conduct is clearly prohibited by Mississippi law and the
findings and recommendations of the Commission are affirmed.
¶69. JUDGMENT IS AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, SMITH, MILLS AND
WALLER, JJ., CONCUR. McRAE, J., NOT PARTICIPATING.
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