Prosecution witnesses never called. A subpoena never served. An expert witness never called to rebut a defense expert, and questions about prosecutors’ role that led the judge to acquit a defendant in north Mississippi charged with attempted murder.

Documents filed in the appeal of that acquittal detail apparent missteps by prosecutors when Union County Circuit Judge Kent Smith last year acquitted Lane Mitchell, now 23, of the stabbing of Tennessee resident Russell Rogers at New Albany’s Tallahatchie Gourmet. 

On Feb. 9, 2019, within half an hour of arriving at the restaurant, Mitchell approached Rogers from behind, holding a knife from the bar behind his back and stabbed Russell three times in the neck, video of the attack shows. Stabbed from behind, Rogers never saw his attacker.

Mitchell said he believed the unarmed Rogers was a threat to staff – including his father who was working as a manager and bartender – and others. Rogers, who often hiked in the New Albany area, had been a regular at the restaurant.

Rogers, 37, nearly bled out and was given a 1% chance of survival and suffered a stroke, according to court records. He was left with mental conditions such as post-traumatic stress disorder. Months after the attack, a judge found Rogers was disabled from his mental condition and placed him under the conservatorship of his father, which remains to date. 

In his order of acquittal, Judge Smith found Rogers’ absence from court was not an accident, but rather his conservator’s efforts to conceal him, which he saw as deprivation of Mitchell’s right to a fair trial and his constitutional rights. 

But June court filings by Mitchell’s attorneys and cited by the victim argue that Russell didn’t come to court because prosecutors assigned to the case from the attorney general’s office didn’t actually subpoena him. 

To remedy the “clear error,” the victim and conservator are asking the court to order a new trial, an effort legal experts say may be difficult to overcome because of double jeopardy, which prevents a person from being tried for the same offense following an acquittal. 

The July 3 filing points to examples of how prosecutors tried to subpoena Rogers a month before trial and later misrepresented the success of that effort, citing the June appellee brief filed on Mitchell’s behalf. 

“But as (the) appellee correctly states repeatedly in his brief with citations to the record, there was no subpoena from which Russell evaded service,” the July 3 court filing states. 

“Appellee thus confirms that the foundation upon which the trial court dismissed the charges was utterly void.” 

In a Monday statement, the attorney general’s office said the state was “no more able to secure the victim’s trial attendance than Mitchell,” adding that it’s not uncommon for victims of violent crimes, like Rogers, to be reluctant to testify.

In court transcript excerpts from a May 2023 pretrial hearing, the prosecution repeatedly said Rogers couldn’t be found and, since returning from travel abroad, his parents were trying to get him to voluntarily come, despite him experiencing  fear and paranoia. 

“We continue to fight for the principle that appropriate evidence can be presented to make the case for conviction beyond a reasonable doubt and in a constitutionally-compliant way, even where a victim may be reluctant to take the stand – especially here where the entire incident was reported for the jury to view,” the attorney general’s office said in a statement in reference to to the video. 

Despite the defense’s efforts to subpoena the victimIn addition, a Tennessee probate court judge quashed a certificate by Mitchell’s defense team for Rogers to be subpoenaed and brought to Union County court because his disability and mental health condition made him incompetent to testify. Further, going through with testimony would cause “irreparable damage to his mental health,” according to court records.

Establishing that Rogers “was made ‘intentionally unavailable’ to testify at trial” by the trial court also served as the basis for the Court of Appeals to reject a previous request by the victim and conservator to file an amicus curiae brief, they argue in the July filing. In this “friend of the court” brief, someone not a party to the case – that is, neither the defense nor prosecution – offers information that those parties had not requested that may have bearing on the case.

“Amici respectfully admit that (the) appellee’s revelations in their brief underscore the fact that the state cannot represent or protect amici’s interest adequately in this matter,” the motion for reconsideration states. 

In a March proposed amicus brief, they highlighted the perspective of the victim and provided additional information, such as Rogers’ rights as a crime victim and arguments about how the circuit court violated those rights. 

That proposed brief also highlighted how in April 2023 the state subpoenaed several witnesses,  not including the victim or his conservator, and how the service process was invalid. 

The prosecution stands by its argument from its appellant’s brief that the burden to show a compulsory process violation, according to the attorney general office’s statement, and the defendant failed to show Rogers’ testimony would be both “material and favorable to his defense” but not cumulative witness testimony. It argues Rogers did not witness the attack because he had his back turned during the stabbing. 

Former Mississippi Court of Appeals judge and Supreme Court Justice Oliver Diaz Jr. said it’s unusual to have an amicus brief that challenges basic facts of a case. 

Amicus briefs are discretionary and the appellate court doesn’t have to accept them because they are filed by someone who is not a party in the case. He said typically when the court allows them, they are from an expert or organization who can provide information that can be helpful to make a decision. 

In this case, Diaz said a brief doesn’t add anything that the prosecution and defense attorneys can’t bring up in their own briefs. 

If the court allows the victim and conservator to file an amicus brief, he said it could open the door for other victims to file them. Much of the job as an appellate court judge is reading briefs and court transcripts, and allowing victim amicus briefs could lead to a filing of more briefs that the judges would be expected to read, Diaz said.

He understands how victims can disagree with the trial judge’s findings of fact and how prosecutors handle a case. But at the same time, Diaz said, it seems that the victim and conservator were not willing to work with the prosecution, such as coordinating victim testimony.  

“This case seems like the victim was not working with the prosecution and seemed to be working against them at some point, and I think that all led to the outcome of this case, which is not itself ideal either,” Diaz said. 

“That’s what happens when the parties don’t work together for the ultimate goal.”

In the nearly five years that the case was with the trial court and in appeal, at least four people from the attorney general’s office joined and then left the prosecution team, according to court records. The most recent duo came four months before the April 2023 trial: Bilbo Mitchell and Jessica Malone. 

Both of the attorneys no longer work for the attorney general’s office, a spokesperson confirmed. Malone was listed as lead counsel in the appeal until June when an appearance form was filed for Danielle Love Burks. 

To date, there have been a number of other unorthodox actions spanning years between the incident and trial that can be gleaned from court records. 

Typically when someone is charged with a violent offense, they are taken to jail with an option to pay bail to be released, if bail is available, or remain in prison until trial. Mitchell paid a $50,000 bond to be able to leave the Union County jail to await his next court date. 

As part of his bail conditions, District Attorney Ben Creekmore and Mitchell’s attorneys agreed to transport Mitchell to a Memphis behavioral health center to receive counseling and remain there until medical officials decided he could be released. 

The agreed bond order also said that prior to his release, reports would be given to Mitchell’s attorneys and the court to determine whether to set additional bond conditions, according to court records. Additional conditions were not set, and Mitchell did not remain at the center. 

In 2019, Mitchell worked as a campaign manager for Rep. Sam Creekmore IV,  the DA’s brother, according to Mitchell’s LinkedIn. By September 2021, DA Creekmore recused himself from the case due to a conflict of interest, but court records did not specify why. 

Mitchell enrolled at the University of Mississippi while he was under indictment and lived on campus. 

Almost to the date after the New Albany stabbing, two women students alleged Mitchell assaulted them at a formal, according to court records. Prosecutors cited these allegations as the basis for asking the judge to revoke Mitchell’s bond, but that did not happen. 

Typically, bond can be revoked if a person was found to have violated any terms of their release, including committing a new crime. 

Although the women reported the incident to the university police and Ole Miss initiated a student misconduct investigation, Mitchell withdrew from the university in March 2020 without facing sanctions by Ole Miss, according to court records. 

Mitchell’s educational records from Ole Miss were filed under seal but inadvertently included as part of his case records on the Mississippi Electronic Courts website. Shortly after Mississippi Today reached out for comment to the defense attorneys in 2023, the court issued a gag order. 

About a week before the start of trial, prosecutors requested a continuance because at the time a number of motions had not been addressed, leaving not enough time to prepare. Trial proceeded. 

During an in-chambers conference during trial, Bilbo Mitchell said a continuance was the right procedure for when necessary witnesses cannot be found, but he “would object strongly to that too, because we’re here and we have a jury,” according to an excerpt from court transcripts. 

Each side had secured former FBI expert witnesses who analyzed in reports submitted to the court how Mitchell acted during the shooting. But only one of those experts was called in: Matthew Campbell who testified for the defense that Mitchell was justified to stab Rogers because of an active shooter situation. Rogers did not have a firearm or weapon on him or inside his car. 

The women who accused Mitchell of assault at the university event also did not testify, according to court records. 

The prosecution rested its case on day two of the four-day trial. 

A jury did not get a chance to rule because Judge Smith entered a judgment of acquittal and dismissal of charges, citing legal issues that came up in the case and their inability to hear Rogers testify. 

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.