Case: 25CI1:22-cr-00068 Document #: 21 Filed: 06/10/2022 Page 1 of 6

IN THE FIRST JUDICIAL DISTRICT OF THE CIRCUIT COURT

OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

V. CAUSE NO. 22-68-JHD

TONI JOHNSON DEFENDANT

MEMORANDUM IN SUPPORT OF
MOTION TO DISQUALIFY SPECIAL PROSECUTORS

COMES NOW, the defendant Toni Johnson, (“Johnson”), by and through undersigned

counsel of record, and files this her memorandum in support of her Motion to Disqualify Special

Prosecutors and for grounds would show unto the court the following to wit:

FACTS

On February 18, 2022, with the media in tow, State Auditor investigators and Hinds

County deputies arrested Johnson, a Hinds County Election Commissioner, at her Clinton,

Mississippi home. https://www.wlbt.com/2022/02/18/hinds-co-election-commissioner-arrested-

by-state-auditor/.

Johnson’s arrest came one day after a Hinds County grand jury returned a 26-count

indictment charging her with two counts of conspiracy to commit bribery, seven counts of

conspiracy to defraud the State of Mississippi of public funds, four counts of false

representations to defraud the government, six counts of fraudulently obtaining public funds, five

counts of bribery and two counts of embezzlement. Document #: 1.

On the day of Johnson’s arrest, State Auditor Shadrack White, a self-proclaimed public

corruption czar, issued a press release. https://www2.osa.ms.gov/news/duo-arrested-for-frauud-

embezzlement-conspiracy-at-Hinds-County-election-commission/. Exhibit 1, White’s Press

Release. According to White’s press release, “[t]he Hinds County District Attorney's Office

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looks forward to working with State Auditor Shad White and his dedicated team to end public

corruption in Mississippi… The misuse of government funds designed to aid the citizens of

Hinds County will not be tolerated by our office and those who break the law will be

prosecuted.” Exhibit 1.

On March 8, 2022, Hinds County District Attorney Jody Owens, II (“Owens”)

represented the State of Mississippi at Johnson’s arraignment. On the same day, Owens filed a

Notice of Service of Discovery and Request for Reciprocal Discovery on Johnson. Document #:

13. One month after Owens produced discovery on behalf of the State of Mississippi, Richard

E. Smith, Jr., Warren County District Attorney, and one of his assistant district attorneys,

Michael Warren, entered their appearances as “Special Counsel” for the State of Mississippi in

this matter. Document #: 15. After Richard E. Smith, Jr. and Michael Warren entered their

appearances in Johnson’s case, Johnson’s counsel has not communicated with the Hinds County

District Attorney’s office about this matter. On April 20, 2022, Michael Warren sent this Court a

proposed scheduling order. Owens was not copied on the email Michael Warrant sent on April

20, 2022. On May 12, 2022, Michael Warren sent undersigned counsel a plea offer for Johnson

on Warren County District Attorney’s stationery. Richard E. Smith, Jr. was copied on the email.

Owens was not copied on the May 12, 2022, email sent to undersigned counsel. According to

Michael Warren, the offer expired 21 days from the May 12, 2022 email.

To date, there is no evidence that Attorney General Lynn Fitch is assisting Owens in

Johnson’s prosecution and/or has appointed Richard E. Smith, Jr. and Michael Warren as special

prosecutors. Similarly, Owens has not filed a motion asking this Court to appoint Richard E.

Smith, Jr. and Michael Warren as special prosecutors in Johnson’s case.

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 Case: 25CI1:22-cr-00068 Document #: 21 Filed: 06/10/2022 Page 3 of 6

LAW AND ARGUMENT

RICHARD E. SMITH, JR. AND MICHAEL WARREN

SHOULD BE DISQUALIFIED FROM PARTICIPATING
IN TONI JOHNSON’S PROSECUTION

“In criminal procedures, due process requires, among other things, that a criminal

prosecution be conducted according to established criminal procedures.” Flowers v. State, 842

So. 2d 531, 539 (Miss. 2003).

Miss. Code Ann. § 25-31-11(1) provides that “it shall be the duty of the district attorney

to represent the state in all matters coming before the grand juries of the counties within his

district and to appear in circuit courts and prosecute for the state in his district all criminal

prosecutions and all civil cases in which the state and or county within his district may be

interested;…”

Miss. Code Ann. § 25-31-21 provides:

“if, at the time of impaneling the grand jury in any circuit court, the district
attorney be absent or unable to perform his duties, or if after impaneling of the
grand jury, the district attorney be absent or unable to perform his duties or be
disqualified, the court shall forthwith appoint some attorney at law to act for
the state in the place of the district attorney during his absence or inability or
disqualification, and the person appointed shall have the power to discharge all
the duties of the office during the absence or inability or disqualification of the
district attorney, and shall receive a reasonable compensation for his services,
to be allowed by the court and certified to the auditor, who shall issue his
warrant therefor. Such allowance shall be deducted from the salary of the
district attorney, and shall not exceed the amount the salary of the district
attorney for the number of days allotted by law for the term court at which
such appointee shall act.”

Neither the Mississippi Constitution nor common law “permits the involuntarily

disqualification of a duly elected district attorney from the lawful performance of his duty and

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the substitution of the attorney general in the district attorney’s place and stead in a case in which

no legal grounds for the district attorney’s disqualification exists.” Hood v. State, 523 So.2d 302,

312 (Miss. 1988). A district attorney, however, may voluntarily disqualify himself and his

office in a criminal proceeding. Butler v. State, 292 So.3d 251, 260 (COA 2019).

In Williams v. State, 184 So. 3d 908, 915-916 (Miss. 2014), the Mississippi Supreme

Court “…recognized that Mississippi Code Annotated section 7-5-53 (Rev. 2014) permitted the

Attorney General to assist a local district attorney in the discharge of his or her duties only when

(1) required by public service or (2) directed by the governor in writing. The Williams court

found, however, that the district attorney neither requested nor required the Attorney General’s

assistance and that no record evidence demonstrated that public service required the assistance.”

The Williams court also discussed “three situations in which a district attorney pro tempore shall

be appointed: the district attorney is absent, the district attorney is unable to perform his duties,

or the district attorney is disqualified.” Id. “The Williams court found, though, that the circuit

court never articulated any lawful reason or statutory authority for recusing the district attorney

and appointing a special prosecutor, that the district attorney’s office never filed a motion setting

forth grounds for its disqualification or recusal from Williams’s case, and that the record as a

whole was devoid of any specified statutory bases for the appointment of a district attorney pro

tempore. As a result, the supreme court concluded that the circuit court lacked statutory

authority to appoint the Attorney General to intervene in Williams’s case.”

In the instant case, Richard E. Smith and Michael Warren entered their appearances on

behalf of the State of Mississippi on April 8, 2022. Docket Entry #: 15. Richard E. Smith, Jr.

and Michael Warren did not articulate any lawful reason or statutory authority for entering

Johnson’s case which is not in the Ninth Circuit Judicial District where Richard E. Smith, Jr. is

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the duly elected district attorney and where Michael Warren works as an assistant district

attorney. There is no evidence Owens asked the Attorney General’s office to assist him in the

discharge of his duties. Similarly, there is no proof that Mississippi Governor Tate Reeves

directed the attorney general to assist in the discharge of his duties. Likewise, there is no

evidence Attorney General Lynn Fitch appointed Richard E. Smith, Jr. and Michael Warren as

special prosecutors pursuant to Miss. Code Ann. § 7-5-5 & -7 which gives her “unlimited

discretion to appoint a special prosecutor.” Jordan, 786 So. 2d at 1011. More telling, this Court

has not appointed Richard E. Smith, Jr. and Michael Warren and the record does contain any

specified statutory bases authorizing them to enter their appearances as “Special Counsel” in

Johnson’s case. Consequently, Richard E. Smith, Jr. and Michael Warren have no authority to

assist Owens in Johnson’s prosecution since there is no evidence that Owens ever requested

assistance from the attorney general; that Attorney General Lynn Fitch appointed Richard E.

Smith, Jr. and Michael Warren as special prosecutors; that Owens filed a motion requesting the

appointment of district attorney pro tempore and that this appointed Richard E. Smith, Jr. and

Michael Warren “to act for the state in the place of the district attorney during his absence or

inability or disqualification.”

WHEREFORE PREMISES CONSIDERED, Johnson requests this Court enter an

Order prohibiting Richard E. Smith and Michael Warren from participating as “Special Counsel”

in Johnson’s case for the reasons outlined above.

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 Case: 25CI1:22-cr-00068 Document #: 21 Filed: 06/10/2022 Page 6 of 6

RESPECTFULLY SUBMITTED, this the 10th day of June 2022.

/s/ Lisa M. Ross

Lisa M. Ross (MSB#9755)
Post Office Box 11264
Jackson, MS 39283-1264
(601) 981-7900 (telephone)
(601) 981-7917 (facsimile)
[email protected]

CERTIFICATE OF SERVICE

I, Lisa M. Ross, attorney for Plaintiff, do hereby certify that I have this date filed the foregoing

with the Clerk of the Court using the MEC system which sent notification of such filing to all attorneys of

record.

This the 10th day of June 2022.

/s/ Lisa M. Ross

Lisa M. Ross

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 Case: 25CI1:22-cr-00068 Document #: 20 Filed: 06/10/2022 Page 1 of 3

IN THE FIRST JUDICIAL DISTRICT OF THE CIRCUIT COURT

OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

V. CAUSE NO. 22-68-JHD

TONI JOHNSON DEFENDANT

MOTION TO DISQUALIFY SPECIAL PROSECUTORS

COMES NOW, the defendant Toni Johnson, (“Johnson”), by and through undersigned

counsel of record, and files this her Motion to Disqualify Special Prosecutors and for grounds

would show unto the court the following to wit:

FACTS

On February 18, 2022, with the media in tow, State Auditor investigators and Hinds

County deputies arrested Johnson, a Hinds County Election Commissioner, at her Clinton,

Mississippi home. https://www.wlbt.com/2022/02/18/hinds-co-election-commissioner-arrested-

by-state-auditor/.

Johnson’s arrest came one day after a Hinds County grand jury returned a 26-count

indictment charging her with two counts of conspiracy to commit bribery, seven counts of

conspiracy to defraud the State of Mississippi of public funds, four counts of false

representations to defraud the government, six counts of fraudulently obtaining public funds, five

counts of bribery and two counts of embezzlement. Document #: 1.

On the day of Johnson’s arrest, State Auditor Shadrack White, a self-proclaimed public

corruption czar, issued a press release. https://www2.osa.ms.gov/news/duo-arrested-for-frauud-

embezzlement-conspiracy-at-Hinds-County-election-commission/. Exhibit 1, White’s Press

Release. According to White’s press release, “[t]he Hinds County District Attorney's Office

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 Case: 25CI1:22-cr-00068 Document #: 20 Filed: 06/10/2022 Page 2 of 3

looks forward to working with State Auditor Shad White and his dedicated team to end public

corruption in Mississippi… The misuse of government funds designed to aid the citizens of

Hinds County will not be tolerated by our office and those who break the law will be

prosecuted.” Exhibit 1.

On March 8, 2022, Hinds County District Attorney Jody Owens, II (“Owens”)

represented the State of Mississippi at Johnson’s arraignment. On the same day, Owens filed a

Notice of Service of Discovery and Request for Reciprocal Discovery on Johnson. Document #:

13. One month after Owens produced discovery on behalf of the State of Mississippi, Richard

E. Smith, Jr., Warren County District Attorney, and one of his assistant district attorneys,

Michael Warren, entered their appearances as “Special Counsel” for the State of Mississippi in

this matter. Document #: 15. After Richard E. Smith, Jr. and Michael Warren entered their

appearances in Johnson’s case, Johnson’s counsel has not communicated with the Hinds County

District Attorney’s office about this matter. On April 20, 2022, Michael Warren sent this Court a

proposed scheduling order. Owens was not copied on the email Michael Warrant sent on April

20, 2022. On May 12, 2022, Michael Warren sent undersigned counsel a plea offer for Johnson

on Warren County District Attorney’s stationery. Richard E. Smith, Jr. was copied on the email.

Owens was not copied on the May 12, 2022, email sent to undersigned counsel. According to

Michael Warren, the offer expired 21 days from the May 12, 2022 email.

To date, there is no evidence that Attorney General Lynn Fitch is assisting Owens in

Johnson’s prosecution and/or has appointed Richard E. Smith, Jr. and Michael Warren as special

prosecutors. Similarly, Owens has not filed a motion asking this Court to appoint Richard E.

Smith, Jr. and Michael Warren as special prosecutors in Johnson’s case.

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 Case: 25CI1:22-cr-00068 Document #: 20 Filed: 06/10/2022 Page 3 of 3

WHEREFORE PREMISES CONSIDERED, Johnson requests that after a hearing on

her Motion to Disqualify Special Prosecutors that this Court will enter an Order prohibiting

Richard E. Smith, Jr. and Michael Warren from participating as “Special Counsel” in Johnson’s

case for the reasons outlined above.

RESPECTFULLY SUBMITTED, this the 10th day of June 2022.

/s/ Lisa M. Ross

Lisa M. Ross (MSB#9755)
Post Office Box 11264
Jackson, MS 39283-1264
(601) 981-7900 (telephone)
(601) 981-7917 (facsimile)
[email protected]

CERTIFICATE OF SERVICE

I, Lisa M. Ross, attorney for Plaintiff, do hereby certify that I have this date filed the foregoing

with the Clerk of the Court using the MEC system which sent notification of such filing to all attorneys of

record.

This the 10th day of June 2022.

/s/ Lisa M. Ross

Lisa M. Ross

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 Case: 25CI1:22-cr-00068 Document #: 18 Filed: 06/03/2022 Page 1 of 3

IN THE FIRST JUDICIAL DISTRICT OF THE CIRCUIT COURT

OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

V. CAUSE NO. 22-68-JHD

TONI JOHNSON DEFENDANT

MOTION TO DISQUALIFY STATE AUDITOR

COMES NOW, the defendant Toni Johnson, (“Johnson”) by and through undersigned

counsel of record, and requests this Court disqualify State Auditor Shadrack White (“White”)

and his office from participating in her prosecution for the reasons set forth below:

1. On February 18, 2022, with the media in tow, investigators from the State Auditor’s

office and Hinds County deputies arrested Johnson, a Hinds County Election Commissioner, in

her Clinton, Mississippi home. https://www.wlbt.com/2022/02/18/hinds-co-election-

commissioner-arrested-by-state-auditor/. See also, Exhibit 1, White’s February 18, 2022 Press

Release. Johnson is charged with two counts of conspiracy to commit bribery; seven counts of

conspiracy to defraud the State of Mississippi; nine counts of fraudulently obtaining public

funds; four counts of making false statements or representations; four counts of bribery; and two

counts of embezzlement.1 Docket Entry No. 1. (Quotations added).

2. White didn’t stop with his February 18, 2022 press release. Instead, on February 27,

2022, White sent his supporters an email and used the arrests of Johnson, Cedric Cornelius and

Sudie Jones to solicit donations for his political action committee: “Friends of Shad White.”2

1
Miss. Code Ann. § 7-7-73 provides “[w]hen the state auditor shall have reason to believe that a public
officer or employee has embezzled any public funds, he shall notify the governor and the proper district attorney,
and shall attend the trial as a witness for the state, if necessary.”
2
Miss. Code Ann. § 23-15-801(c) provides that a political committee shall mean any committee, party, club,
association, political action committee, campaign committee or other groups or persons or affiliated organizations
which receives contributions aggregating in excess of Two Hundred Dollars ($200.00) during a calendar year or

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 Case: 25CI1:22-cr-00068 Document #: 18 Filed: 06/03/2022 Page 2 of 3

Exhibit 2. White stated in part: “[o]ur arrests show the dangers of private funding of elections.

More money means more risk of fraud. But the arrests also how we are committed to putting a

stop to this fraud. I know a lot of people have lost faith in government right now, especially in

DC. What we’re doing in the Auditor’s office can help restore that faith-that the government can

work for the people again. We do that by showing folks that those in government who steal face

serious consequences.” Exhibit 2.

3. White signed the document and wrote” “P.S. Want to lend a helping hand? Forward this

email to a friend. Tell them to visit www.shadwhite.com and sign up to receive more emails like

this, so they can stay informed on how their tax dollars are spent. DONATE TODAY.” Exhibit

2. Online donors were given the option of making donations of $25.00, $50.00, $100.00,

$250.00, $500.00, $1,000.00, $2,500.00 and $5,000.00. Exhibit 3. “To donate by mail, please

send check, payable to Friends of Shad White, to Friends of Shad White, P.O. box 320275,

Flowood, MS 39232. Exhibit 3. The January 31, 2022, Report of Receipts and Disbursements

2021 Annual Report list “Friends of Shad White” as the name of the candidate for the position of

State Auditor. Exhibit 6.

WHEREFORE PREMISES CONSIDERED, Johnson prays that after reviewing her

Motion and Memorandum in Support of her Motion to Disqualify the State Auditor and his

office from Johnson’s case that this Court will set a hearing on her Motion to Disqualify Shad

White, allow her to present evidence of the number of emails White sent to his supporters

referencing Johnson’s case and soliciting donations as well as the amount of money collected by

Friends of Shad White after he sent the email solicitation on February 27, 2022.

which makes expenditures aggregating in excess of Two Hundred Dollars ($200.00) during a calendar year for the
purpose of influencing or attempting to influence the action of voters for or against the nomination for election, or
election, of one or more candidates, or balloted measures.”

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 Case: 25CI1:22-cr-00068 Document #: 18 Filed: 06/03/2022 Page 3 of 3

RESPECTFULLY SUBMITTED, this the 3rd day of June 2022.

/s/ Lisa M. Ross

Lisa M. Ross (MSB#9755)
Post Office Box 11264
Jackson, MS 39283-1264
(601) 981-7900 (telephone)
(601) 981-7917 (facsimile)
[email protected]

CERTIFICATE OF SERVICE

I, Lisa M. Ross, attorney for Plaintiff, do hereby certify that I have this date filed the

foregoing with the Clerk of the Court using the MEC system which sent notification of such

filing to all counsel of record.

This the 3rd day of June.

//s// Lisa M. Ross______________

Lisa M. Ross

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