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Appeal from Tishomingo County centers on speedy trial issues

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Tishomingo County courthouse

The Tishomingo County Courthouse is located in Iuka.

IUKA • Sitting in a South Mississippi prison hundreds of miles from home and over a year after his arrest in Tishomingo County on allegations that he shot into a dwelling, possessed a firearm as a felon and committed drug crimes, Brian Berryman had no lawyer, no court date and no idea he had already been indicted months before.

Brian Berryman

Berryman

Arrested in February 2017 near the Goat Island Recreation Area, Berryman – then out on parole for 1990 murder and armed robbery convictions – went to sit in jail, awaiting the long march of blind justice.

He was not indicted for 211 days.

He was not arraigned for 399 more days, with authorities admitting they lost track of him.

He saw four state appointed attorneys represent his case.

When the long-delayed trial finally came, it yielded a conviction for firearm possession by a felon and a lifetime sentence as a violent habitual offender.

That 2020 conviction is now before the Mississippi State Court of Appeals. Berryman is represented on appeal by the Office of State Public Defender, which argues that Berryman’s constitutional right to a speedy trial was violated.

“There is no excuse for this happening other than systemic failure,” said Andre de Gruy, director of the state public defender’s office.

Criminal justice reform advocates say Mississippi’s criminal justice system is infected by the problems that plagued Berryman’s prosecution, including lengthy and unnecessary imprisonment of people awaiting trial.

“People get stuck in pre-trial detention, and folks forget about them,” said Cliff Johnson, director of the MacArthur Center for Justice at the University of Mississippi Law School. “We see miscarriages of justice where people are just stuck in jail without an avenue to a courtroom or a lawyer or an advocate.”

Appeals Court asked to overturn conviction

Local Circuit Court Judge Kelly Mims already delivered one victory to Berryman on speedy trial grounds last year.

District Attorney John Weddle’s indictment of Berryman included a pair of related charges: Firing into a dwelling and possession of a firearm by a felon.

At the 2020 trial, Mims found that, due to the death of a witness potentially useful to Berryman’s defense, the long delay of his trial violated Berryman’s right to defend himself against the shooting into a dwelling charge, and Mims dismissed it.

Berryman motion

While incarcerated at South Mississippi Correctional Institution and waiting trial in Tishomingo County, Brian Berryman filed many motion on his behalf, such as this one here. Berryman's 2020 conviction of being a felon in possession of a firearm is now on appeal.

However, Mims allowed the possession of a firearm charge to proceed, and the district attorney won a conviction.

The office of Attorney General Lynn Fitch is defending the conviction on appeal. The office argues that despite lapses in the prosecution, Berryman’s conviction – and his life sentence without parole as a habitual offender – should stand.

Even were he to win on appeal, Berryman’s legal troubles won’t end. His parole is likely to remain revoked for previous reporting violations, which would keep him in jail on the capital murder conviction. He may also have to answer for unrelated rape charges in Tennessee, according a document filed in trial court by prosecutors.

Judge questions state delays

In a May hearing before the Appeals Court, a panel of three judges took aim at the state’s delay in indicting and arraigning Berryman.

Seven months after his arrest, Berryman was indicted on Sept. 22, 2017. He was not formally served noticed of this indictment for over a year, and was arraigned on November 2018, despite the fact that he was in state custody during the entirety of this period.

Appeals Court judges expressed significant concern both that it took seven months to bring an indictment on a straightforward charge and that state authorities failed to serve notice of the indictment for over a year.

“I can go on the MDOC website and figure out, just myself, where a prisoner is, you don’t need an investigator to go find him,” Judge Jack Wilson said. “I’m having a hard time. Isn’t it gross negligence? It isn’t just negligence, is it?”

Allison Horne, the attorney general lawyer, downplayed the significance of this delay because authorities say it wasn’t intentional.

“While we agree that this was negligent, it was one of these out-of-sight, out-of-mind issues,” Horne, said.

That response drew rebuke from a judge.

“Can you say out-of-sight, out-of-mind when you’re dealing with bringing someone to trial?” Judge David Neil McCarty asked.

Weddle, the local district attorney, did not respond to requests for comment about the Berryman case, including questions about the delay in serving the indictment.

Revolving door of attorneys

At his November 2018 arraignment, John White was appointed Berryman’s public defender. However, White’s election as a circuit court judge was then a certainty, and White and once he took office was not be able to represent Berryman beyond the arraignment appearance.

Richard Bowen was eventually appointed by the court to Berryman’s case.

However, a problem arose. Bowen realized that he had successfully prosecuted Berryman for the 1990 capital murder conviction.

Bowen then recused himself from Berryman’s defense.

Daniel Sparks was then appointed Berryman’s public defender. A state senator, time spent by Sparks in the Capitol ultimately prompted a circuit judge to appoint Will Bristow to join the case as a defense lawyer 11 days before trial.

In the eyes of the court, Berryman had legal counsel from his 2018 arraignment until his 2020 trial, but his appeal argues that, in reality, he largely lacked representation throughout much of this period.

“On paper, in the minutes of the circuit court, he had a lawyer, but he didn’t have anyone working on his case,” said Mollie McMillin during the appeals hearing.

McMillin works with the Office of State Public Defender, which handles all appeals for indigent defendants.

Errors in indictment

Finally, Berryman argues that his indictment did not properly provide notice that he could be sentenced to life without parole as a habitual offender.

At the appeal hearing, judges agreed that the indictment, as written, confuses two different statutes in its language. All this adds up to at least four errors in the indictment, as counted by McCarty.

“It’s baffling,” McCarty said. “I don’t know if I would have known what it was.”

The state argues that, despite errors, Berryman was sufficiently on notice that he faced the prospect of life in prison.

Berryman trial exhibit 2

These shell casings, and ammunition, were presented as evidence during the 2020 trial of Brian Berryman in Tishomingo County on charges that he was unlawfully in possession of a firearm as a felon. He was convicted and now appeals that conviction, claiming his right to a speedy trial was violated.

“The perfect storm”

According to Johnson, defense lawyers often grimly complain that “speedy trial is dead in Mississippi,” and that “there’s a perception out there that speedy trial motions will not be well received.”

As much as prosecutorial oversight, the state’s patchwork public defense system plays a role, with court appointed defense lawyers often facing time pressures and even financial incentives not to devote many resources to indigent clients.

Beyond bolstering public defense resources, Johnson has also advocated for a statewide database of people held in local jails – though that likely wouldn’t have helped Berryman, since he was in a state facility.

Reviewing the case his office is handling, de Gruy knows, like Johnson, that speedy trial claims often face a steep climb in Mississippi courts, but he believes the Berryman facts are as stark as can be found.

“This case presents the perfect storm,” de Gruy said. “I think that’s why we had an oral argument and we’re cautiously optimistic. I think this is as good a fact based cased as you can have for a speedy trial case.”

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