Attorney writes Facebook post complaining about state AG's office, leading state to file Motion to Seal

A Mississippi lawyer recently found his own Facebook post the subject of court deliberation after the state attorney general's office filed a Motion to Seal the court record. Havard v. Epps, NO. 5:08CV275KS (S.D. Miss. 2013).

The defense counsel appeared to be frustrated with the state as the parties filed motions related to a habeas corpus proceeding, posting on Facebook:

After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson. There are some similarities between prophetic songwriters and lawyers:

And you still can hear me singin’ to the people who don’t listen, To the things that I am sayin’, prayin’ someone’s gonna hear. And I guess I’ll die explaining how the things that they complain about, Are things they could be changin’, hopin’ someone’s gonna care. I was born a lonely singer, and I’m bound to die the same, But I’ve got to feed the hunger in my soul. And if I never have a nickle [sic] I won’t ever die ashamed. ‘Cause I don’t believe that no one wants to know.

Following the post, the state sought to have the records sealed, arguing:

Mr. Carner’s inability to maintain his professional integrity could compromise a case which is sensitive in nature. The victim in this case is a minor, a 6-month-old girl who was sexually battered before she was murdered. Mr. Carner has already demonstrated he is unable to refrain from speaking about this case to the public.

Judge Keith Starrett, however, felt that the request was not necessary.

Respondents' concern was apparently triggered by a Facebook post of one of Petitioner's counsel about the Motion for Clarification discussed above. In particular, counsel wrote, "After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn't want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson." However ill-advised this post may have been, in terms of the standards of professionalism by which lawyers are encouraged to govern themselves, this statement does not give rise, in the Court's opinion, to a need to seal this record, for three reasons. First, there is no indication that the record of these proceedings in state court is unavailable to the public; second, the state court record was conventionally filed in this Court and is not available for electronic access; and, finally, information about this case is so widely available through Internet sources that closure of this record will not prevent dissemination of the details of the charges or the identification of the infant victim in this case. For these reasons, the Motion to Seal will also be denied.

According to the Hattiesburg American, a spokesperson for the AG's office acknowledged the ruling was correct and claimed they were preparing to withdraw the motion, but the judge ruled on it before they had the chance to do so.