OXFORD • A second judge has stepped away from a federal wrongful death lawsuit filed by the family of a woman shot and killed by a former Oxford policeman.
At the same time, Oxford officials are asking that a California-based member of the family's legal team be disqualified for not following accepted legal procedures.
Magistrate Judge Roy Percy, who is based in the Oxford office of the U.S. District Court, has been replaced by Magistrate Judge Jane Virden of the Greenville office in the civil suit filed by the family of Dominique Clayton against the city of Oxford, Police Chief Jeff McCutchen and former officer Matthew Kinne.
Percy's departure was not termed a "recusal." The Aug. 27 order simply says the case was reassigned to Virden. Magistrates are the first line of judicial contact and handle a variety of legal matters leading up to trials.
U.S. District Judge Neal Biggers was originally assigned to hear the case, Three weeks ago, he recused himself from the case, noting he was personally acquainted with parties and witnesses in the case. The case was been reassigned to Senior Judge Glen H. Davidson, a senior status judge from Tupelo, who normally hears cases in the Aberdeen court location.
By having a trial judge and magistrate from outside of Oxford, the court will avoid most conflicts of interest.
The city of Oxford filed a motion last week to disqualify Los Angeles, California, attorney James Bryant from the case because he is not licensed in the state and never received temporary permission to practice in the state.
In the lawsuit complaint filed by Clayton's family on Aug. 5, Bryant was listed as a co-counsel with the notation that his application for temporary status was "pending." Bryant has represented himself as a co-counsel in two press conferences — one following Kinne's guilty plea and again a week later after the civil suit was filed.
City of Oxford attorney Todd Butler said Bryant never filed an application for "pro hac vice," the legal term for permission to practice in Mississippi. Under the rules guiding legal procedures in Mississippi, the "pro hac vice" should be denied if the nonresident attorney failed to secure permission before appearing in the case.
Butler said he notified the family's lead attorney, Carlos Moore, of the discrepancy shortly after the lawsuit was filed. When Moore took no actions to correct the problem over the next two weeks, Butler and Oxford filed a motion to disqualify Bryant on Aug. 26.
Moore and Bryant finally applied to practice law in Mississippi the following day, Friday, Aug. 27. The court has not ruled on the motion.
In a separate matter, Moore was forced to withdraw a series of subpoenas because they were issued well before the initial attorney conference, violating accepted court rules.
Kinne, 40, pleaded guilty to capital murder on July 30 in Clayton’s death. He was sentenced to life in prison without the chance of parole by Circuit Court Judge Kent Smith.
The wrongful death lawsuit claims that Kinne was acting under the color of law when he conducted a welfare check on Clayton, 32, and shot her in the head while she slept in her own bed in May 2019. It alleges he was in uniform and in a marked Oxford Police Department vehicle, making witnesses believe he was there on official business.
The lawsuit claims the city and police department are liable because they hired Kinne despite an allegedly checkered past. The complaint said Kinne violated Clayton’s Fourth and 14th Amendment rights and additionally blames the department for the negligent training, supervision and retention of Kinne.