Email trial (Part I): Jury set to begin hearing testimony in Lee case

By Patsy R. Brumfield / Daily Journal

(Rolling updates will be added to the bottom of this account, as this trial develops. Please forgive the typos and glitches likely as I type this as it happens. 9:15 A.M., 9:27, 9:41, 9:45, 10:25, 10:55, 11:00, 11;09, 12:15)

TUPELO – Twelve jurors and two alternates were selected this morning for a trial likely to focus on free-speech issues.

James “Mike” Surratt, 60, a retired Memphis businessman, faces two felony counts that he harassed two members of the Heardtown Estates homeowners association with more than three dozen emails over a five month period.

Surratt insists he wanted steps taken to correct problems with restrictive covenant violations in the subdivision northwest of Tupelo.

Among likely witnesses this week is Mitchell Scruggs, the subdivision’s co-developer. He also is under fire as a longtime official with the North Lee Water Association, which is under investigation for water quality and management practices.

• Come back to NEMS360.com as this trial continues in the Lee County Justice Center.

• • •

9:15 A.M. – Judge James L. Roberts Jr. presiding. Jak Smith of Tupelo, attorney for defendant Surratt. Paul C. Gault, assistant D.A. for State of Mississippi.

(FYI – HERE IS MISSISSIPPI’S CYBERSTALKING LAW:
MISSISSIPPI CODE of 1972

TITLE 97. CRIMES
CHAPTER 45. COMPUTER CRIMES AND IDENTITY THEFT

Miss. Code Ann. § 97-45-15 (2011)

§ 97-45-15. “Cyberstalking”; penalties

(1) It is unlawful for a person to:
(a) Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
(b) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying or harassing any person.
(c) Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person’s family or household with the intent to threaten, terrify or harass.
(d) Knowingly permit an electronic communication device under the person’s control to be used for any purpose prohibited by this section.

(2) Whoever commits the offense of cyberstalking shall be punished, upon conviction:
(a) Except as provided herein, the person is guilty of a felony punishable by imprisonment for not more than two (2) years or a fine of not more than Five Thousand Dollars ($ 5,000.00), or both.
(b) If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than five (5) years or a fine of not more than Ten Thousand Dollars ($ 10,000.00), or both:
(i) The offense is in violation of a restraining order and the person has received actual notice of that restraining order or posting the message is in violation of an injunction or preliminary injunction.
(ii) The offense is in violation of a condition of probation, a condition of parole, a condition of pretrial release or a condition of release on bond pending appeal.
(iii) The offense results in a credible threat being communicated to the victim, a member of the victim’s family, or another individual living in the same household as the victim.
(iv) The person has been previously convicted of violating this section or a substantially similar law of another state, a political subdivision of another state, or of the United States.

(3) This section does not apply to any peaceable, nonviolent, or nonthreatening activity intended to express political views or to provide lawful information to others. This section shall not be construed to impair any constitutionally protected activity, including speech, protest or assembly.

HISTORY: SOURCES: Laws, 2003, ch. 562, § 6, eff from and after July 1, 2003.MISSISSIPPI CODE of 1972

*** Current through the 2011 Regular Session and 1st Extraordinary Session ***)

• • •

9:20 A.M. – Remaining jury pool invited into the Lee Justice Center courtroom. 42 of them left after winnowing from about 100 on Monday.

Roberts says they began late because lawyers wanted to speak with him before things got started. Tells them Monday afternoon was used to conduct a “considerable” amount of business, which had to be done outside the jury’s presence.

(“The Rule” is invoked – that means all witnesses will not be allowed into the courtroom until they are called to testify. That way, they don’t hear others’ testimony before theirs.)

Roberts speaks to the jury pool about questions coming from him and then counsel. Designed to discover if any have any personal involvement, personal knowledge or any experience that might cause them to identify with either side. Judge says juror can be excused “for cause” and then attorneys may excuse a limited number (it’s 6 today) for any reason. Fourteen will be chosen – 12 regular and 2 alternates.

This is a criminal case, judge says, a prosecution. (Roberts begins to ask questions for jury pool. I am not going to report much of this, unless something unusual happens.)

• • •

9:39 – Gault says he’ll call these witnesses: Lt. Scottie Reedy, investigator Bobby Bean, Peter McCormick, Leonard Witt, and perhaps James Cunningham.

• • •

9:42 – One man says Leonard Witt is his boss.

Smith says he may call Mitchell Scruggs, Jean Russell, Cindy Clements, Jane Smith, Sheila Witt and Mrs. Peter McCormick.

• • •

9:46 – Woman says she works for insurance company, which handles Mitchell Scruggs’ account and speaks regularly with Cindy Clements, his office manager. Man says he worked for Mitchell Scruggs about three years ago.

10:11 – Gault has questions for jury pool. He describes 7-county First District. Says seeking to find a fair jury. Says the charge is a somewhat new statute, cyberstalking, makes it a crime to harass somebody via email. Asks if anybody thinks it’s wrong for that to be a felony? (One man says he has some reservations about it. Woman agrees. Another says she’d have to hear more about it.)

Gault says First Amendment is absolute right, freedom of speech. Asks if anybody has a problem with that? Of course you don’t, I don’t, he says. Does merely complaining about covenant violations is not a violation of the law? That’s my stance, he says. Does anybody NOT agree that because you’re mad about something, it doesn’t give you a right to harass others? Anybody have problem with theory that causing emotional distress is harassment?

About law enforcement connections, will any of you tend to give more credibility to a deputy’s testimony than another person’s? About anybody who read about this case in the media, did what you read caused you to form any type of idea about this case?

State’s burden of proof is “beyond a reasonable doubt.” Key word is “reasonable.” Asks jurors not to leave your common sense outside.

• • •

10:27 – Smith questions jury pool. Walks them through why America has freedom of speech. Case is about following the rules, he says. Asks if they believe they have a right to voice a complaint? Other means of communication these days. Do you believe that sending an email is a proper way to voice a complaint? Right, under freedom of speech, to make more than one complaint, and to continue until they fix it?

Anybody in North Lee Water District? Do you think they have a legitimate right to complain if water is unfit to drink? (Jury pool nods in agreement.) What if you complained and the board emailed you back and said you don’t have a right to complain? If you keep complaining that the board, mayor, whoever … do they have a right to have you arrested and charged with a felony, harassment? (Man says, depends on what law says about it.) What is harassment, Smith asks. (He tells them what the law says about emails to harass.) Does anybody have an idea about what the state meant by harassment? (Nobody answers) I didn’t think so, Smith says. That’s what this case is about.

If you sent 30-40 emails to North Lee Water board and they refused to do it and you keep sending them emails, as my client did, would they have a right to have you arrested under this statute? It doesn’t say anything about causing emotional distress. What think about this – if I’m sending emails for a legitimate purpose … does anybody here (assuming I’m not threatening anybody) think non-threats, non-violent purpose to enforce the rules – does anybody have a problem with that? Should state be able to prosecute you if you’re writing for a legitimate purpose? Does the number of emails matter? (Will say my client wrote Mr. Witt about 40 emails over a 5-month period.)

Client arrested Sept. 1, 2009. Does everybody understand … how many of you live in a subdivision or ever have? (large show of hands) How many live in country? (Some) Big difference, isn’t it? No rules in country. If live in city, there are rules we have to follow. People in Heardtown subdivision decided they wanted restrictive covenants, which are rules. Everybody there must abide by that. Are you familiar with that concept? Have any of you ever been on a homeowners association board? (nobody responds)

Rules will show you my client had right to contact them by any and all means to enforce the rules? Anybody think by sending emails is harassment? (no response) Asks if anybody knows anybody in Heardtown subdivision? (A few answer)

We’ve talked about Mitchell Scruggs a little bit. Do anybody of you shop at Scruggs’ big store? (Some respond) Asks about Scruggs’ daughter, Lisa. Brother named Eddie.

Asks if anybody knows Lee County law enforcement (mentions some who are on witness list). Would you believe a police officer from witness stand, give him more credence, than average citizen?

Followup on what Mr. Gault said, just because you’re mad, does that infringe on your right to send legitimate complaints to a governing body? To send emails?

We have rules, homeowners association has rules. You may not agree with the rules, do any think the board could pick and choose which rules they will follow? Or that they should follow all the rules?

Anybody feel they cannot sit on this jury and give my client a fair trial? Hold state to proving my client harassed somebody, hold state to a high burden to beyond a reasonable doubt? 10:54 a.m.

• • •

10:56 – Judge asks one more question, if any other reasons anybody can’t serve impartially? (No responses.)

This is a little bit different case, some new law in terms of technology. Now, we need to do some things outside your presence (they will be striking potential jurors). Believe we can get this done by noon, then you can go about your other business.

Do not discuss the case with each other or let anyone else approach and discuss it with you.

In recess until 12:00 noon.

• • •

11:01 – Judge asks if attorneys have challenges “for cause.” Attorneys walk through the names they think should not be on the jury. Gault and Smith to meet in jury room to make final selections.

• • •

12:02 – Roberts, attorneys return to courtroom. Judge announces jury selection – 5 men (1 African American), 7 women (3 African Americans). Alternates are two white women. Others allowed to leave.

Jury sworn in. Admonished not to use electronic devices or other reference material for definitions of anything. Instructed to return at 2 p.m.

• • •

(READERS – I will go to a new story file for this afternoon, so this account doesn’t run any longer. This first account will be marked Part I. This afternoon will be marked Part II.)

patsy.brumfield@journalinc.com