Smith v. Simes, 430 S.W.3d 690

Background

Tony Bernard Smith was arrested in April 2011 for the homicide of Michael Campbell and charged with aggravated robbery and capital murder on July 15, 2011; he has been detained since arrest.
In April and May 2013, elected prosecutor Fletcher Long (through deputy Todd Murray) moved to nolle prosequi the case, citing the unavailability/unreliability of the State’s main eyewitness; the circuit court took the May motion under advisement and did not rule immediately.
Smith petitioned for various extraordinary writs and habeas relief; the circuit court denied the May 15 motion to nolle pros and stated a special prosecutor should be appointed to assess the motion, but initially did not appoint one.
On August 16, 2013 the circuit court entered an order disqualifying Long and appointing a special prosecutor (Ronald L. Davis) and set a September trial date; Smith sought expedited review in the Arkansas Supreme Court.
The Arkansas Supreme Court held that the circuit court exceeded its jurisdiction in disqualifying the elected prosecutor under Ark. Code Ann. § 16-21-112(a) because the record did not show Long had neglected or failed to attend court or prosecute as required by law; the Court granted certiorari, ordered rescission of the disqualification order, and directed the trial court to lift the stay and set the matter for trial.
The Supreme Court declined to order nolle prosequi or Smith’s release and refused to address Smith’s judicial-bias claim as it was not preserved below.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the circuit court properly disqualified the elected prosecutor and appointed a special prosecutor under Ark. Code Ann. § 16-21-112(a)	Smith: Disqualification was improper; Long did not neglect or fail to attend or prosecute—he appeared and moved to nolle pros.	Circuit court/State: Long was not diligent in pursuing the case; his conduct justified disqualification and appointment of a special prosecutor.	Court held disqualification/appointment exceeded jurisdiction; § 16-21-112(a) requires neglect or failure to attend/prosecute, which the record did not show.
Whether a writ of prohibition was available to challenge the disqualification order	Smith: Extraordinary relief necessary because other remedies are inadequate.	State: The order already entered and review should be by certiorari if appropriate.	Writ of prohibition denied as improper for an already-entered order; certiorari available and granted.
Whether certiorari should be granted to correct the disqualification order	Smith: No adequate remedy and the record shows clear excess of jurisdiction.	State: Circuit court acted within discretion to protect the public interest and ensure prosecution.	Certiorari granted because record on its face shows the judge acted in excess of jurisdiction and no other adequate remedy existed.
Whether the court should order nolle prosequi or Smith’s release	Smith: Request to nolle pros and immediate release since prosecution was improperly interfered with.	State: Prosecutor has discretion to request nolle pros; trial court has discretion to grant/deny; release not shown as required.	Court declined to order nolle pros or release; declined to review trial court’s discretionary denial of nolle pros and found Smith not illegally detained.

Key Cases Cited

White v. Palo, 380 S.W.3d 405 (Ark. 2011) (writ of prohibition standards and limits)
Int’l Paper Co. v. Clark Cnty. Cir. Ct., 289 S.W.3d 103 (Ark. 2008) (extraordinary writs are narrow and to be used with caution)
Allen v. Circuit Ct. of Pulaski Cnty., 303 S.W.3d 70 (Ark. 2009) (prohibition not available to undo an already-entered order)
Casement v. State, 884 S.W.2d 593 (Ark. 1994) (certiorari to correct proceedings erroneous on face of the record)
Lupo v. Lineberger, 855 S.W.2d 293 (Ark. 1993) (scope of certiorari and superintending control)
Venhaus v. Brown, 691 S.W.2d 141 (Ark. 1985) (limited circumstances for appointing special prosecutor outside statute)
Weems v. Anderson, 516 S.W.2d 895 (Ark. 1974) (appointment of special prosecutor when elected prosecutor is under investigation)
Webb v. Harrison, 547 S.W.2d 748 (Ark. 1977) (prosecutor’s discretion to nolle pros and trial court’s discretion to grant or deny)
Ark. Game & Fish Comm’n v. Herndon, 226 S.W.3d 776 (Ark. 2006) (requirements for certiorari; plain, manifest abuse or lack of jurisdiction)
Noland v. State, 580 S.W.2d 953 (Ark. 1979) (trial court discretion over dismissal of charges)
Conner v. Simes, 139 S.W.3d 476 (Ark. 2004) (writ lies when judge acts in excess of authority)