UPDATE: Judge mulls attorney conflict in Salts re-trial

By Patsy R. Brumfield / Daily Journal

TUPELO – Michael and Marie Salts, former Prentiss County funeral home owners, likely will face old embezzlement charges in November.
After discussions in open court this morning, Judge Thomas Gardner III said he will allow Tupelo attorney Jim Waide to continue his representation of Mrs. Salts, despite the obvious conflict of interest resulting from his defense of her then-husband in 2008 when they both went on trial.
Attorneys said they thought they could be available to try the case in Lee County the week of Nov. 5.
Before the lunch break Gardner questioned Michael Salts, at length, about his concerns that Waide knows information that he could use against Salts during a new trial.
After discussions in open court this morning, Gardner said he would rule about 1:30 p.m. about whether their trial attorney, Waide of Tupelo, can continue as Marie Salts’ attorney without causing a conflict of interest for her ex-husband, Michael Salts.
Gardner questioned Michael Salts, at length, about the judge’s concerns that Waide knows information that he could use against Salts during a new trial.
“I understand,” Michael Salts told him after he said it didn’t matter to him. “The truth is the truth.”
This very issue – of attorney conflict – is why their conviction was overturned and sent back to Lee County by the Fifth Circuit Court of Appeals.
Waide insisted to Gardner that Mrs. Salts has a right to representation by the attorney of her own choosing, even under the circumstances.
“That just won’t work,” said Michael Salts’ court-appointed attorney, Robert “Chip” Davis of Tupelo.
The Saltses, who are no longer married, were convicted in 2008 by a circuit court jury in Lee County and spent time in jail.
But in 2010 as they appealed their case, the Fifth Circuit reversed their convictions and ordered the Mississippi Attorney General’s Office to drop the case or take them to court within a certain amount of time.
Marie Salts completed her sentence in state custody, although Michael Salts will has some time to do related to another conviction.
Their trial attorney, Waide, appealed their 2008 convictions on the issue that he was given only a few days to prepare for their trial and that the court was wrong not to question that his representation of both of them was a conflict of interest.
The two recently were sentenced to no more jail time in a federal case alleging a scheme to use a straw-buyer to help them purchase a home. She was given probation and he to serve 12 months at the same time as his federal sentence.
Last Friday, Senior U.S. District Judge Neal B. Biggers Jr. ordered Michael Salts’ release into state custody to face whatever the Attorney General’s Office decides.
Michael Salts’ attorney, Robert “Chip” Davis, told Biggers that Lee County planned to set bond for Salts when he was transferred there, and he asked the judge to release Salts without a transfer.
Both Saltses’ arrests on an embezzlement charge were reported Monday on the Lee County Sheriff’s Office jail docket. So far. officials there have not responded to Daily Journal question about the arrests.
Today, they appeared for the Lee County hearing with their younger son. Their older son died recently after an accidental drowning.
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Below is a running account of Thursday’s hearing before Circuit Judge Thomas Gardner III.
Jim Waide was their attorney during the criminal trial. Robert “Chip” Davis represents Michael Salts on the federal charge. Marie Salts used a public defender in federal court.
Waide and Davis, both of Tupelo, were present for today’s hearing. Mikell Buckley represented the Attorney General’s Office.
The hearing was set for 10 a.m. but the time between then and its actual start was taking up with “shuttle diplomacy” with defense and state attorneys meeting in private. In between, Judge Gardner told Buckley he wasn’t going to stand in the state’s way of whatever it decided to do.
(Please forgive the typos or other glitches likely to occur as I type fast.)
11:18 – Judge, attorneys enter. Gardner says it’s appropriate to have a brief review of the history of this case.
JUDGE – Prentiss County indicted defs, case transferred for change of venue. Case tried, finally, … can’t say when. Defs found guilty of some counts and ordered to make restitution. Convictions appealed but affirmed in some sense. After that, appeal goes to Northern MS federal court – resulting in an order by Davis setting aside convictions. That order was approved by District Judge Pepper. State appealed to 5th Circuit, which affirmed Pepper’s affirmation of Davis’ order.
Matter was sent back to circuit court of Lee Cnty, with instructions that state would decide what to do with retrial or whatever. That occurred some time ago. Today, purpose is kind of limited.
First we must determine status of representation. It was THE problem that got us here. SEcond, some pending motions filed by Jim WAide. Let’s resolve representation first. Mr. DAvis is here with Salts. I’m satisified with that. I think the law is that the judge must look at the relationship or conflicts of representation. Continuing here, Waide represented both defs at trial, tho he came in at last instance. He did what he did on behalf of both of you… because I forced the issue to trial. However, the point of all this is – I have serious reservations concerning Waide’s ability to represent Marie because of prior representation. I do not know with any certainty the position of Michael Salts concerning this matter.
Mr. Davis, if you are prepared to do so, I invite you to speak.
DAVIS – I’ve spoken with Mr. Salts about this issue. If I may be allowed to give my opinion. My opinion… first, I’ve been practcing law about 17 years. Known Waide throughout. Never question his skill or his ethics or his basic orient toward justice. That said, simple facts here. Waide represented both defendants. Privy to confidential information from Michael Salts. Given nature of charges, … no question conflict of interest exists. From fed court, I would be remiss to not objecting to his continued representation of Mrs. Salts. I have told Mr. Salts … my advice as his atty to object to Waide’s representation… and to make that point. Nevertheless, Mr. Salts says he doesn’t object to Waide’s presence against my advice, he will waive any conflict of interest. I disagree very firmly, but that’s his position. He knows that Mrs. Salts is satisfied with Waide’s representation. He doesn’t want to go against her wishes. I don’t see how I can give him any further advice.
JUDGE – Mr. Waide, I want you to have chance to say whatever you wish.
WAIDE – Obvious conflict. Every atty ever involved in this case has said there’s a conflict. If any money missing, it would be Mrs. Salts atty to say she didn’t know about it. Mr. Salts to say he doesn’t know. WE;’ve always said there’s a conflict in this case… why I said at first they had to be warned of the conflict. As I understand, Chip appointed to represent Mike. That Mike doesn’t object to my rep of Marie.
This case goes back for years. Onlyw ay to defend is to have accountant look at case. Difficulty is that is I am removed, I have consulted with my neighbors across the street. I would be adamant and give her a vigorous defense to the extent that I would. In her interests for me to remain.
JUDGE – No doubt about your representation. That doesn’t answer the question. Again, the law requires that the court…. that Michael Salts is capable of waiving. May ultimately be where we wind up. But Mr. Davis, at my request, continues to represent Michael because he was involved in other criminal prosecution and a clear understanding about facts and circumstances. I asked him to continue. He agreed, if I ordered him to. I have. Think Mr. Davis has given his client good advice. I think his advice is in accord with law of US and state of MS… that Michael Salts can waive it, but I’m a little curious about whether I am required to accept his waiver.
I feel like I am required to make some on record inquiries, if he intends to waive an obvious conflict. Nobody says there isn’t a conflict. So, I, uh, think it would be appropriate if I questioned Do you ….
BUCKLEY – Only as an officer of the court … probably extraneous. Reading through briefs and 5th Circuit’s opinion. That was all for naught, if this is wghere we end up. I don’t know if Mr. Salts… it may be premature. State will ask to put case on the docket. May be plea negotiations. May come down …. but I can’t foresee the future. WE will have moved along … for this issue to come up again. This matter has been on the docket a long time. Waide well argues why he shouldn’t have been allowed to represent both of them. Looking at briefs, he basically … says Michael is working outside the business all these years… Marie was in the business but I can’t argue that. But… state has no opinion.
JUDGE – Asks Salts to stand, be sworn in. (Salts says yes.) Going to ask you some question.
Salts, defendant. Former wife. But on trial you were both accused and represented by Mr. Waide. Also def that Waide entered federal appeal. You understand … substantial conflict between you and now ex-wife in that case. That the conflict deprived you or both of you of effective representation by Mr. Waide.
SALTS – yes, when he was representing both of us.
JUDGE – Now Davis appointed for federal proceeding, now with you for state.
SALTS – Yes, I’ve got time served and three years probation. Nothing furhter. It’s over.
JUDGE – Davis has undertaken to represent you here. Heard what he had to say about your position?
JUDGE – Tell me, what is your education? (Salts -finished HS, NE attended and went to mortuary science college.)
SALTS – Almost 62. (In mortuary biz, maintained your own affairs, conducted your biz? Handled own affairs?) Until I got married. After that… (Anything about this proicess you don’t understand?) No sir, I understand. Well aware of what’s going on. (Davis says this is a question… that you do not object to Waide representing former wife?) No objection.(Any reason I have … tht would cause me to think you were incompetent?) I’m far from incompetent, your honor. (As I so find, based on your responses, demeanor.)
JUDGE – that doesn’t resolve the issues at hand, though. You are aware … at trial, preparation… that WAide knows a great deal about you as it has to do with the charges in this case? (Salts – that’s correct.) During course of trial, you talked to him, reveal to him facts about yourself and your participation or not in the charge. (Yes, all I discussed was the truth, that’s all.) If I accept your waiver of his participation in this case, he will be in a position to ask questions of you at trial where his superior knowledge of your involvement may well be to your deteriment?) I understand, but what’s true is true. (Remember, I heard testimony in first trial. I would be at a loss to speak about what was testified.)
Understand on retrial, you are not obligated to testify. (I undersstand) No one can force you to say one word. (Yes.) No question about competency of your atty or Waide. My interest … about your agreement. Mr. Davis … has no conflict in any way to represent you in the case. Problem I see if Mr. WAide. (I understand.) I am not privy to nor have a right to know wha tyou may have said to WAide when he represented you in trial, appeal etc. I don’t now and don’t want to know. But you understand, there may be in that information you gave or he learned that would be to your detriment in a very serious way. Do you understand? (Yes, I understand. But the truth …)
You understand that if during retrial you were to take the stand and testify, Waide would have right to cross-examine you and use information he gained during time he represented you? (Yes sir.) If he took aggressive attitude … put pressure on you? (I understand. But the truth is the truth, I don’t have problem with who cross-examines me.) Very well. I suppose this proceeding should have taken place a couple of years back and we wouldn’t be here today.
I don’t believe that … well, that you …. well, counsel, let me give you opportunity.
DAVIS – I have no questions…
JUDGE – Let me ask a few. Mr. Salts, you have heard what Davis said about his discussions with you. In effect, that he has warned you about this, recommended that you not agree to waive the obvious conflict and that you have determined that you will in fact make no objection to or waive the conflict? (Yes sir.) Did he give you his thoughts? (He advised me not to.) How long discussed? (About an hour. I’m just basing everything on the truth.) You understand that all of this is to protect you. (I understand and appreciate.)
BUCKLEY – Assume court is saying that during triam, if this conflict re-arrose and Mr. Salts changed his position, he would be allowed to? (Judge – I don’t think so. That could not be so because having undertaken to waive and if case proceeds … I don’t think he’s in position to say he’s changed his mind. A waiver is a waiver.)
DAVIS – BEfore court rules, that’s why I stood up a moment ago. Your honor has heard his position. Again, as much professional and personal respect I have for Waide … I don’t see how on earth this can work. I don’t see how it can work. Let’s say we go to trial, make a decision that Mr. Salts has to testify. How is Waide going to cross-examine his old client. You can’t un-ring a bell. He can’t unlearn what he learned when he represented Mr. Salts. How does he not use privileged information? If he’s going to do a competent job for Mrs. Salts? It’s so fraught with danger, with difficulty. I fail to see how … how this is a workable situation.
If AG decides to drop charges, wonderful. But if we go to trial and Mr. Salts does not testify, maybe it could work. But I don’t know. (Judge – Waide has responsibility that he use whatever he might have at hand to defend Marie Salts.) How could he not? (He’s got to.)
WAIDE – At this point, I represent Marie only. I think concern .. they were both of my neighbors across teh street. I have a lot of personal affection for them. If I am removed, someone else would not be so loyal, doesn’t know the background. I believe Mike will get the benefit of my representing him. They have common defense that prosecution was vindictive. Attorney was not prepared. They have a common interest in a vigorous defense. Believe Mr. Salts isn’t making an irrational decision. He wants truth to come out. But Marie has a right to counsel of her choice. If not, she’s deprived of that constitutional right. If Mike waives, I should not be removed.
BUCKLEY – I agrued everything he argued at 5th Circuit. He’s saying these two people had a conflict. Says he was ineffective with a conflict. But now he says he’s the only one that could be effective to represent Mr.s Saltts. (Waide- at 5th cicuit, it was about their having same attorney.) But 5th circuit found him ineffective. (I disagree, it was conflict.) I disagree.
JUDGE – To protect this defendant…. but found him competent, and questioning him about waiver and his understanding. Seems to me that if a conflict in first, there continues to be one in the second. Only difference is that you Waide know all about the defendant. He says it doesn’t matter. I want to think about it for a moment. I will give this priority, could rule maybe even today about whether Waide can proceed.
WAIDE – Pending motions for appointment of an accountant. This is AG’s prosecution. Would like to look at statute, but must have accountant look at all these records. Wonder if this should be at expense of AG’s Office. (Judge – rather resolve one issue at a time.)
JUDGE – My cicumstance is such to undertake whatever … so, I would like to set a trial date… and… so we can get this thing moving. Hopefully …not going to rush, but want it scheduled so we can move toward it. Was one problem in debacle of first round. So, tell me … I want you to discuss with Susan …. judge’s atty … will consider issue of accountant later.
Now, Waide and DAvis … can you wait to talk with her? (Yes)
DAVIS – A lot of housekeeping needs to take place today.
JUDGE – Need to set orders so don’t string this out forever. I don’t know what’s in the files about evidence. I will return it … whoever has it. Just identify what you want. Other than that, let’s be ready to try it.
DAVIS – When? Special or during term? (Judge – it doesn’t matter.) (Waide- we need a motion day.) (Judge – we will have all tht done before get to trial.)
BUCKLEY – You’re taking rep issue under advisement? (Judge – it may well happen before dark.)
JUDGE – Matter of joint motion for accountant, responded? (Buckley – made at last trial, Was denied.) (Waide – wasn’t. No ruling on it. (Davis – does court intend to rule o accountants today or later? Meaning we would want our own accountants.) Ah, now we have a conflict. (Davis – that’s the issue. I don’t want to use the same accountant, for him to say something that hurts Mike. My own can look and give me advice, opposed to give advice to two parties. My motion for my accountant. Salts is indigent. As long as we get a competent forensic accountant.)
BUCKLEY – May be premature. We plan to go to trial, but if there’s a way to resolve this matter, I’m available to discuss it.
JUDGE – Let’s deal with issues before the court. (Waide – I agree with separate accountants.) Let me suggest this, now after 12 o’clock. To explore this fully, ask you to come back at 1:30 – let’s get a trial date … and I’ll try to bde prepared to address attorney problem then.
12:05 – Recess. Back at 1:30.
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