CARLTON W. REEVES, District Judge.
Before the Court is the parties' joint motion to approve their proposed Agreed Order. The parties propose the following language:
See Email from Jason P. Steed, Counsel for Petitioner (Sept. 23, 2019).
I do not know how the parties arrived at this statement. It seems to contradict respondents' written and oral arguments before the Fifth Circuit. See, e.g., Respondents' Supplemental Letter Brief, Montalto v. Miss. Dep't of Corr., 938 F.3d 649 (5th Cir. 2019) (No. 18-60274, Dkt. # 72); Respondents' Supplemental Letter Brief, Montalto v. Miss. Dep't of Corr., 938 F.3d 649 (5th Cir. 2019) (No. 18-60274, Dkt. # 56); Brief of Respondents, Montalto v. Miss. Dep't of Corr., 938 F.3d 649 (5th Cir. 2019) (No. 18-60274, Dkt. # 16).
As I told the parties in September, however, I think the above language is factually correct. See Docket No. 72. I will sign and enter it today. Perhaps that will finally resolve this case. It is up to the Fifth Circuit.
The limited remand of this matter presents an opportunity to place this case in its proper context. Montalto is not the first time I have been frustrated with this unit of the Attorney General's Office.
In Wansley v. Mississippi Department of Corrections, I observed that
No. 4:10-CV-149-CWR-FKB, 2013 WL 1827765, at *9 (S.D. Miss. Apr. 30, 2013), rev'd on other grounds, 769 F.3d 309 (5th Cir. 2014). I expressed my displeasure with this course of action:
Id. at *11 (citations and brackets omitted).
Despite this behavior, in both Wansley and Montalto, I did not sanction the responsible Assistant Attorney Generals. In part that may be due to the benefit of the doubt public servants so often receive. But I also fundamentally believe that fault does not lie solely at counsel's feet.
I attempted to explain why in McDonald v. Jenkins, an ongoing habeas case in which the Mississippi Department of Corrections' private prison contractor lost two years' worth of evidence, "for reasons unknown, notwithstanding its duty to preserve those documents." No. 3:16-CV-800-CWR-LRA, Docket No. 41 (S.D. Miss. Mar. 29, 2018). When the Assistant Attorney General was unable to meet an already-extended deadline, I elaborated on what I believe to be the true problem underneath all of these cases.
Docket No. 30 (S.D. Miss. Feb. 5, 2018).
I continue to believe all of that. A lawyer is "an officer of the court and a key component of a system of justice, dedicated to a search for truth." Nix v. Whiteside, 475 U.S. 157, 174 (1986). If there is some structural problem impeding attorneys from being able to engage in that search, we should try to find a structural solution.
Habeas defense is difficult. The records are voluminous; the law is too complex. Mississippi also has a great deal of habeas petitions to defend. Counsel's job is made more difficult when her various clients—MDOC, private prisons, and local District Attorney's Offices—lose documents and testify in open court about patently unconstitutional conduct. E.g., Montalto v. Miss. Dep't of Corr., No. 3:15-CV-457-CWR-FKB, 2017 WL 4340273, at *4 (S.D. Miss. Sept. 29, 2017) ("Officer Cooper then explained that the contents of the hearing had no bearing on her finding Montalto guilty of the alleged housing violation. Rather, Officer Cooper testified that she found Montalto guilty because she was instructed to do so before the hearing began."). It is an unenviable position.
Over the years, I had hoped that the Attorney General's Office would recognize that these cases deserved more attention—and more attorneys—to make sure we arrive at the truth of every case. That remains my hope for the future. After assessing the Office, perhaps the new Attorney General may find a solution to this problem.
I will sign and enter the proposed Agreed Order this day. The Clerk of Court will subsequently transmit the supplemental record to the Fifth Circuit.