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Stewart v. District Attorney for the Eighteenth Circuit Court District for the State of Mississippi8/23/2005
his fact in mind, the law clearly states that "neither law nor equity helps or pities one that sleeps on his rights." Carter v. Spencer, 5 Miss. 42 (4 Howard 42) (1839).
. Some of the statements of the dissent require clarification. It's stated by the dissent that " hile there was a warrant issued for a Gary Stewart, it was a warrant for a white Gary Stewart." We believe this statement is trying to convey the fact that the individual who was actually wanted pursuant to the capias was the white "Gary Stewart," the one guilty of the crimes. This sentence can also be misinterpreted to mean that the capias stated that the individual sought was white and yet, a black individual was arrested. It should be noted that race was not present on the capias. Mel Riley testified to this fact as follows:
Q: Since this Gary Stewart who's sitting here, the African-American Gary Stewart, has been released from those charges, but he was picked up on these indictments, have there been any attempts to have new capiases issued for the white Gary Stewart?
A: I can't - - I can't answer that. I know capiases wouldn't have the race on them anyway, so it wouldn't matter there.
This was further supported by the testimony of Stewart who stated:
Q: Did any of the capias documents, Gary, that you looked at indicated - - the capias documents were those documents that they - - is this the documents that they showed you when you were in court - - well, excuse me - - when you were incarcerated in Jones County? Remember you told me the transportation - -
A: (Deponent examining document.) Yeah. This is the - - yeah, this is.
Q: Did any of those documents reflect the race of the person they were arresting that you recall?
A: Talking about in Jones County?
Q: Yeah.
A: No, I didn't see no race on here. It just got my name and Social Security number on some of them.
. Lastly, the dissent feels that the discrepancy in birth dates from the wanted "Gary Stewart" and the arrested Gary Stewart clearly proves negligence by the district attorney's office. During Riley's deposition, he testified that this is not an uncommon event and would not raise a glaring red flag. The applicable portion of Riley's deposition is as follows:
Q: Could you, Mr. Riley, tell us about that conversation.
A: Okay. What happened, I got a call. I don't know what time it was. I was asleep. So it was late at night. And I don't go to bed until about 10, 10:30. He said - - and he was obviously talking to law enforcement on another phone because he said they have Gary Stewart. Do we still want him? And I said, "Well, if that's the Gary Stewart, yes, if that's the right one." He said, well, the birth dates are not the same, but he said the Social Security numbers match up. And I said, okay. Then he said - - there's a pause there for a minute. Then he says, "Well, they say this is got to be him cause he's doing the same thing down here." And I said, "Well, if that's him, bring him to Mississippi then."
Q: When they said that there were two difference Social Security numbers, did you - -
A: There was - - no, it was not two different Social Security numbers. His date of birth did not match.
Q: Okay. The date of births, excuse me.
A: But that's not uncommon for us. I can go through the jail roster and pick up the same guy in there with dozens of dates of birth.
. Further, the dissent is at a loss as to how the district attorney's office could allow a person of a different race to remain incarcerated under the charges. As stated previously,
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