Attorneys for Robert Lenoir are asking that his indictment be thrown out, pointing to what they see as a litany of procedural miscues that they say should invalidate much of what has transpired in the case over the past year.
“The procedural history in this case leading to the return of a seven-count indictment of Robert Lenoir is tangled on its best day,” Lenoir’s attorneys argued in a court filing Monday.
Lenoir is charged with first-degree murder in the death of Wendy McMahan, aka Wendy Dansby, whose body was found inside the McComb attorney’s residence on March 29, 2021.
He was indicted more than a year later, on April 16, 2022, on that charge and six other counts — two counts of possession of a controlled substance, tampering with evidence, child endangerment, felony child abuse and tampering with a witness.
Lenoir faces a November court date. His trial has been moved to Natchez.
Pike County’s two circuit court judges, Mike Taylor and David Strong, recused themselves from the case and appointed Senior Status Circuit Judge Forrest A. “Al” Johnson.
District Attorney Dee Bates stepped aside from the prosecution, and Johnson appointed Forrest County DA Lin Carter.
Lenoir’s attorneys, Tom Fortner and Ronnie Whittington, say initial orders for the judges’ recusals were never filed or sent to the Mississippi Supreme Court Chief Justice Mike Randolph for review, which would have followed protocol, nor do they appear in the court’s minutes.
That voids the recusals and any subsequent actions in the case, including the appointment of a special prosecutor and the execution of search warrants, they argue.
“There is no record of it being filed and it does not appear in the minutes of the circuit court of Pike County,” according to Monday’s filing. “A court can speak only through its minutes.’
And there’s nothing to indicate that the state Supreme Court “approved actively or passively” Johnson’s appointment, they argue.
The judges filed subsequent recusal orders on June 29, 2022, more than three weeks after Johnson appointed Carter to the case in a June 7, 2022, court order that Lenoir’s attorneys argue was invalid because “Judge Johnson was not the appointed judge in this cause” because the initial recusal orders were not properly filed.
Fortner and Whittington argue that the actions of Taylor and Strong present a conundrum in which two judges who previously recused themselves also took action on the case by appointing Johnson.
“The recused judge as described by our Supreme Court is but an ordinary man on the street,” the filing reads, but by not following court procedures, they caused a situation in which what transpired in the case is unhinged from what the law says should have happened.
Consequently, Carter’s appointment to the case “was done without authority,” they argue.
“Judge Johnson, through no fault of his own, undertook to discharge his duties,” the filing reads. “But he was not properly appointed. ... Judge Johnson should disqualify himself from this case.”
Because of that, the indictment should be dismissed because Carter, who they argue Johnson improperly appointed, didn’t have authority to even be in the grand jury room, let alone argue a case inside it, Fortner and Whittington claim.
They also question the timing of Carter’s appointment, which according to court records occurred June 7, 2022, two days before Lenoir’s indictment was returned and Johnson’s order appointing Carter was filed.
“How this appointment could have been communicated and how the District Attorney tempore could be engaged so quickly is not understood,” they wrote in their filing.
