* Legal representation by one lawyer of Michael and Marie Salts was a factual conflict of interest.
* The court’s failure to act on that fact denied them their constitutional right to a fair trial.
* The state Court of Appeals used the wrong law when it upheld their convictions.
Davis: Saltses’ convictions should be out, new trial ordered
By Patsy R. Brumfield
Michael and Marie Salts’ embezzlement convictions should be vacated and a new trial ordered, U.S. Magistrate Judge Jerry A. Davis said Thursday.
“This case does not involve potential, but actual, conflicts of interest,” Davis wrote in a 43-page response to an appeal for the former Prentiss County funeral home owners by their attorney, Jim Waide of Tupelo.
Initially, the Saltses were represented by Steve Farese of Farese amp& Farese of Ashland. He withdrew a few months later, citing a conflict of interest – which means the legal situation is different for each client and could put one’s defense at odds with the other’s.
Just before trial, Waide told Circuit Judge Thomas Gardner III the conflict existed and needed action.
In his response, the Northern District magistrate came down hard on Gardner and the Mississippi Court of Appeals. “If one attorney, telling the court of the existence of a conflict of interest is presumed to be accurate, two experienced attorneys telling the court the same thing should not be lightly disregarded,” he said.
“Both the trial and appellate state courts have brushed this aside.”
The Saltses, of Booneville, were indicted in May 2003 in Prentiss County on six counts of embezzlement for allegedly taking thousands of dollars from burial policy payments they did not forward to insurance companies.
Found guilty of three counts of felony embezzlement and one of misdemeanor embezzlement, they were sentenced to two consecutive five-year sentences in prison and fined. The case was prosecuted by the state Attorney General’s Office.
After Farese left, the Saltses hired Michael Thorne of Tupelo, who was granted several delays between the spring of 2004 and August 2005.
On Sept. 29, 2005, four days before they were scheduled to go on trial, they fired Thorne, telling Gardner he was not ready and they wanted Waide as counsel.
“The trial court was adamant that the case would not be continued,” Davis said, noting Waide asked Gardner to dismiss or continue the trial because he could not represent them both because of the conflict.
According to the court record, Gardner told Waide, “This is another of the last-minute tactics – I’m not going to grant a severance, a continuance or anything else. We’re going to try it.”
Davis faulted Gardner for not holding a hearing with testimony about conflict issues, saying the judge realized the case was in trouble before the Saltses did.
Davis scolded the Mississippi Court of Appeals for various wrong decisions, especially in saying that the Saltses were at least “complicit” in their attorney’s repeated requests for continuances or that they waived any conflict of interest.
He praised Waide’s efforts on their behalf, despite the short preparation, saying he performed “capably, even admirably.”
“The trial court committed constitutional error in refusing to hold a hearing to investigate the conflict of interest,” Davis stated, and he cited the COA for a conclusion contrary to federal law.
“The Saltses were entitled to an automatic reversal.”
Waide did not respond to a call for comment Thursday.
Davis gave both sides 10 days to object to his ruling. U.S. District Judge Glen Davidson, assigned to the case, could overrule him.
Contact Patsy R. Brumfield at (662) 678-1596 or firstname.lastname@example.org. Read her reports on Twitter, Facebook or NeMs360.com.
Patsy R. Brumfield/NEMS Daily Journal