Ellard v. City of Natchez et al

Filing 33

ORDER granting 32 Motion for Recusal. Signed by Honorable David C. Bramlette, III on 9/22/2011 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JASON W. ELLARD
VS.

PLAINTIFF
CIVIL ACTION NO. 5:10-CV-111-DCB-JMR

CITY OF NATCHEZ, DEWAYNE JOHNSON,
JOHN DOES I-V, AND ELVIS PRATER

DEFENDANTS

ORDER
Before the Court is a Motion for Recusal filed by Eileen
Mary Maher, attorney on behalf of her client, Elvis Prater.
Docket Number [32].
1.
In support of the Motion counsel asserts that at the sentence of
Dewayne Johnson the Court voiced the opinion that this defendant
did not assault Jason Ellard and by so stating, implied that an
assault occurred at the hands of her client, Elvis Prater. For
reasons set forth herein such a suggestion is wrongheaded and/or
represents a fundamental misunderstanding of the evidence
presented in the two criminal trials.
2.
A Grand Jury sitting in the Southern District of Mississippi
handed down a multi-count indictment against Prater, including a
charge that he violated the civil rights of an individual who
later was identified as Jason Ellard. Dewayne Johnson was also

indicted on several counts, including a civil rights violation as
well as charges for credit card fraud.
3.
There were two trials. At the first Johnson was convicted on
one credit card misdemeanor count, and the jury was unable to
reach a verdict on other remaining counts. Prior to a second
trial in which a jury acquitted Prater on all counts, Johnson
entered a plea of guilt on a credit card conspiracy count,
leading to the sentence alluded to in counsel’s motion.
4.
At the Johnson sentencing the Government made a 5K1.1 Motion
for a downward departure based upon Johnson’s assistance at
trial. Although the Government cited to Johnson’s reticence and
lack of forthcoming testimony, it, nevertheless, moved for the
departure. In ruling upon such motion a Court must consider a
number of factors including a fair assessment of the defendant’s
culpability, his acceptance of responsibility as well as his
conduct both pre-conviction as well as post-conviction. For
reasons stated at sentencing the Court did not grant the
acceptance of responsibility reduction available under the
Federal Sentencing Guidelines but did grant the Government’s
5K1.1 motion. Precedent thereto the Court stated that the motion
would not be granted if, in the opinion of the Court, defendant
Johnson assaulted Jason Ellard. The Court carefully monitored the

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testimony in both trials and came to the conclusion that there
was absolutely no credible evidence from which any reasonable
Court (or jury) could find that Johnson assaulted Jason Ellard;
otherwise, the Court, as it stated, would not grant the
departure.
5.
During the Prater trials defense counsel offered a two prong
defense. First, counsel posited that Ellard suffered all injuries
during an altercation with Prater which resulted in a face down
fall to a concrete curb, causing serious injuries. Second,
defense counsel suggested to the jury that if Ellard was
subsequently assaulted it was at the hands of Johnson, not
Prater. However, there was no credible evidence offered by the
Government implicating Johnson in an actual assault nor did the
Grand Jury make such a charge. Thus, with this factual background
any suggestion that the Court implicated Prater at the Johnson
sentencing is ill-judged.
6.
The Court recognizes, however, that the Plaintiff in this
civil litigation must overcome the lesser preponderance burden
than the beyond a reasonable doubt hurdle faced by the Government
in the two criminal cases. In his defense, Prater could suggest
to the Court and jury, as did his counsel during the two criminal
trials that if an assault occurred, it was at the hands of

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Johnson. This Court having come to the conclusion - as stated at
the Johnson sentencing - that there was absolutely no credible
evidence to implicate Johnson in an assault, the Court recognizes
that in this civil litigation where a Judge is empowered with the
authority to direct a verdict or grant a Rule 50 dismissal, the
defendant Prater and his counsel may harbor concern that a
measure of objectiveness could be compromised.

While not the

case, the Court elects to avoid even the slightest appearance of
partiality and therefore elects to recuse notwithstanding the
injudicious conjecture set forth in the motion.
7.
A separate Recusal Order will follow.

SO ORDERED this the

22nd

day of September, 2011.

s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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