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AG Lynn Fitch Answer To Hinds DA Jody Owens' Amicus Brief
AG Lynn Fitch Answer To Hinds DA Jody Owens' Amicus Brief
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v.
STATE OF MISSISSIPPI
Appellee
Attorney has filed a brief contesting the State’s arguments. That brief
gets the law wrong, the record wrong, and this case wrong. Officer Fox
never should have been convicted. This Court should reverse and render.
1. To start, the District Attorney gets the law wrong. The
controlling case here is Brown v. State, 304 So. 3d 692 (Miss. Ct. App.
2020), which reversed a culpable-negligence-manslaughter conviction on
sufficiency-of-the-evidence grounds. As the State has explained, all facts
that were material in Brown are the same here. State Br. 13–18. Like
resulting in severe blunt-force trauma. State Br. 15–17. Like Brown, Fox
could not reasonably have foreseen that death was likely to follow from
an everyday effort to subdue a resisting, non-compliant suspect using
traditional non-lethal means. Id. at 17. Under Brown, then, the evidence
is insufficient to show that Fox acted with “wanton disregard of, or utter
indifference to, the safety of human life.” Ibid. So Fox’s culpable-
negligence-manslaughter conviction should be reversed. Id. at 17–18.
The District Attorney says that the State “clearly misapprehends”
Brown and that Brown’s holding is “wholly inapplicable” to this case. DA
Br. 11, 13; see id. at 11–15. According to the District Attorney, Brown,
Jackson, and Hawkins “all pertain to the causal relationship between the
defendant’s actions and the cause of the victim’s death, where the medical
cause of death is a collateral result of the defendant’s actions.” Id. at 13.
Unlike in those cases, the District Attorney says, here “there is no
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collateral comorbid condition that caused the death”—George Robinson
died only of “multiple blunt force trauma to the head.” Ibid.
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physical struggle was too remote from the fatal heart attack. His claim
was that the evidence did not show that he was culpable. He claimed that
he came upon the victim, found him lying on the floor splattered in blood,
and leaned down to help—and the victim then grabbed him, a struggle
ensued, and the victim tried to rob him. Ibid. Recognizing that the jury
accepted the State’s view and did not accept the defendant’s view, the
court ruled that the evidence was sufficient to support the conviction.
Ibid. Jackson turned on culpability—whether there was enough evidence
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defendant’s confession, and more, the court ruled that the evidence was
sufficient “to establish the elements of depraved heart murder”—which
is to say, all elements, not just causation. Ibid.; see id. at 644 (“In the
present case, sufficient evidence was before the jury to establish that the
defendant physically assaulted the victim, that the defendant’s actions
were eminently dangerous and evinced a depraved heart, and that the
victim’s heart attack resulted from Hawkins’s physical assault on [the
victim].”) (internal quotation marks and alterations omitted).
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are examples where the defendant could not reasonably have foreseen
that his conduct would lead to death. So that conduct does not rise to the
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id. at 3, 9, 10, 13–14. This claim is aimed at ratcheting up the case for
Fox’s culpability. But the claim defies the record.
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Tr. 446–47. Nor did she say where the alleged “stomp” landed. Tr. 446–
47. And her testimony was not credible anyway. State Br. 18–19.
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contact with an object.” Tr. 817. Dr. LeVaughn’s testimony in toto
indicates one moment of impact that resulted in three superficial
abrasions. Even Arnold and Bolton’s testimony support only one impact
between Robinson’s head and the pavement. Tr. 387–88, 445–46. Neither
Arnold nor Bolton suggested that Fox repeatedly hit Robinson’s head
against the ground. And no witness who saw Robinson that night
testified to seeing more than one abrasion—not the officers, the EMT on
Jones Avenue, Johnson, or the EMTs at the hotel. The autopsy photos
show one larger abrasion on Robinson’s forehead, but the other two are
so small that they escaped notice of any eyewitness. Exs. S-7, D-2.
Third, the District Attorney attempts to divert attention from the
material, dispositive facts in this case. Under Brown, what matters here
is that Officer Fox engaged in a single act to secure Robinson in the face
of his possible wrongdoing and the danger he presented, that he did not
engage in an extensive struggle involving multiple severe blows to
Robinson, that he could not have reasonably foreseen that death was
likely to result from an everyday effort to subdue a resisting suspect
using traditional nonlethal means—and that he accordingly did not act
with the wanton disregard or utter indifference that defines culpable
negligence. State Br. 17–18.
Rather than accept the clear import of the material facts, the
District Attorney attempts not just to shift attention away from these
facts, but to shift focus to factual assertions that are unfounded. The
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District Attorney hints at a police coverup that he never proved and that
has no basis in the verdict. E.g., DA Br. 9. The District Attorney claims
that Robinson was “partially paralyzed,” id. at 2—a claim that conflicts
with the only testimony on the subject. Tr. 420. And the District Attorney
fails to report facts that hurt his narrative. Though he notes, for example,
that Robinson’s autopsy-toxicology report showed only marijuana, DA Br.
3, he fails to note that a toxicology screen taken upon admission to
UMMC returned a positive result for cocaine use—a fact supporting the
officers’ claims that Robinson ate something that he was hiding while
resisting arrest. Tr. 822, 1345; Ex. D-4 at 14.
This effort to divert the Court’s attention from the material facts
that decide this case—and to do so based on unfounded factual claims—
confirms that the verdict here is insupportable and should be reversed.
3. The State has explained that, even independent of Brown, Fox’s
conviction cannot stand because it rests on the insupportable claim that
Fox threw or “body slammed” Robinson. State Br. 18–19. Rather than
confront that point, the District Attorney repeatedly embraces the view
that Fox “slammed” Robinson “into asphalt head first.” DA Br. 13; id. at
3, 9, 10, 13–14. The District Attorney does not try to square this repeated
assertion with the experience of any rational juror. It has no basis in the
record—and is so preposterous that it shows that the District Attorney’s
star witnesses were not credible. This unrebutted point provides an
independent basis to reverse and render. State Br. 18–19.
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* * *
The record speaks to a struggle between officers and a resisting,
LYNN FITCH
Attorney General of Mississippi
CASEY B. FARMER
Special Assistant Attorney General
Mississippi Bar No. 104435
P.O. Box 220
Jackson, Mississippi 39205-0220
Telephone: (601) 359-2866
Email: [email protected]
Counsel for Appellee
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CERTIFICATE OF SERVICE
LYNN FITCH
Attorney General of Mississippi
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