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Politics : PRESIDENT GEORGE W. BUSH -- Ignore unavailable to you. Want to Upgrade?

To: lawdog who wrote (103258)	12/6/2000 2:42:35 PM
From: swisstrader	Read Replies (2) \| Respond to of 769667

George W may wish to take note: Felony DUI Update Newsletter Main FELONY DUI UPDATE: The Mississippi Supreme Court struck another fatal blow to defendants confronted with Felony DUI charges. What little argument was left for the defense on appeal following conviction was all but laid to rest. In Williams v. State, No. 96-KA-01227-SCT, (Miss. Mar. 26, 1998), pursuant to the holdings in McIlwaim v. State, 700 So.2d 586 (Miss. 1997) and Weaver v. State, 1997 WL 703057 (Miss. Nov. 13, 1997), the Court continued on its established course of stacking the deck against any defendant accused of felony DUI seeking a trial by jury. Williams had requested and was denied a bifurcated trial in hopes of keeping the trial jury from learning of his prior misdemeanor DUI convictions during the guilt phase of the proceeding. Citing a 1994 amendment to Miss. Code Ann. Section 63-11-30, the Court reasoned that the language contained in amendment required the prior convictions to be included in the indictment, thus making proof thereof, elements of the offense to be proved beyond a reasonable doubt during the state's case in chief. That is heavy. The legitimate concern of defense attorneys is simply that any jury tasked with the determination of guilt or innocence of DUI would more than likely be unfairly influenced by the knowledge that the defendant had been convicted of DUI in the past. As a result of the Court's decision, prosecutors may now effectively back door evidence of other crimes, wrongs or acts of a defendant without the requirement of conducting a relevance test and a weighing and balance of probative value versus unfair prejudice. Williams stands for the proposition that prior misdemeanor DUI convictions are essential elements of the offense of Felony DUI and must be specifically charged and proven beyond a reasonable doubt in the prosecution's case in chief. Any hope for a bifurcated hearing, as is done in the habitual offender cases, is unlikely at best. The writer respectfully disagrees with the holding in Williams and believes that a bifurcated hearing should continue to be requested. Prior misdemeanor convictions should only be relevant to the imposition of an appropriate sentence on conviction. Allowing proof of priors only serves to persuade a jury that a defendant acted in conformity with his prior behavior. Using prior misdemeanor convictions as elements of the offense of Felony DUI cases, notwithstanding Williams, presents serious and legitimate double jeopardy issues. This is due to the use of a prior as a subsequent enhancer. The proof of a prior conviction previously litigated should prohibit it's proof and use a second time at a subsequent proceeding. In summary, double jeopardy issues concerning the multiple use of priors is yet to be decided by our Court. Continue to raise them pre-trial and hopefully the Court may one day recognize the fundamental unfairness of the present procedures approved for trial courts. Bob Ryan, Assistant Hinds County Public Defender