Judge takes dismissal motion under advisement

Published 2:57 pm Friday, March 5, 2010

Justice Court Judge James Hal Breland here on Thursday took under advisement motions from defense attorney Albert Necaise requesting that the judge dismiss a misdemeanor charge against Pearl River County School District superintendent Dennis E. Penton, who was charged on Aug. 12 by a former teacher for alleged failure to report “unlawful activity” on school property.

Former teacher Jill Frierson of Picayune in Justice Court charged that Penton had failed to report an alleged assault on her by another teacher and that state law required Penton to do so immediately.

On Thursday, the trial never got underway as Necaise, sparred with Marion County special prosecuting attorney Scott Phillips over whether or not Necaise’s motions should be considered first, or after the state had presented its evidence in a trial.

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Penton was accompanied by his wife and Frierson by her husband. Penton took a seat at his defense attorney’s table. Also seated at the table with Penton and Necaise was PRC. school board interim attorney Jim Keith.

There were two witnesses subpoenaed for the expected trial, former school board member Margie Creel and current school board member Jeff Jones, who were present. However, no arguments, except on Necaise’s motions, or witnesses were heard since no trial ever got underway.

Phillips was appointed by a court order as special prosecutor in the case after Pearl River County prosecuting attorney Aaron Russell recused himself from the case because his wife is a teacher in the Pearl River County school system. Phillips is Marion County’s prosecuting attorney.

Necaise, a Gulfport attorney and former district attorney, told Breland that following a Dec. 4 court hearing, Circuit Court Judge Prentiss Harrell ruled that there was no probable cause in a case involving Pearl River Central assistant principal and athletic director Noel Doug Smith and threw out the charges of simple assault filed by Frierson, also on Aug. 12, against Smith.

Frierson alleged the assault took place in January 2009.

The charge against Smith formed the basis for the charge against Penton.

“There is no probable scause in the underlying case and, therefore, there is no cause to report,” said Necaise. “In addition, the case was reported to the Pearl River County Sheriff’s Department, and they called the Friersons in to tell them (sheriff’s deputies) what happened.”

Necaise also maintained that the law under which Penton was charged did not apply to the situation. “The law refers to students and not teachers,” he told Judge Breland.

Frierson filed both charges against Smith and Penton on Aug. 12, after resigning as a teacher at Pearl River Central on July 7.

Harrell, on Dec. 4, saying there was no probable cause that a crime had been committed, threw out the charges against Smith.

However, Circuit Court Judge Richard W. McKenzie had ruled on Oct. 22 that there was probable cause in Penton’s case and that it could go forward.

Necaise argued that the matter was reported to the proper authorities, that there was no reason to even have the trial since the underlying charge, on which the charge against Penton was based, was thrown out of court, and that the statute under which Penton was being charged and tried did not apply “to this set of facts.” Said Necaise, “There was no underlying crime on which to base this case.”

Replying, Phillips said, “In the statute the word crime never is mentioned. It does not have to be a crime to fall under this statute. It says that if the superintendent has a reasonable belief that an act — Did I say crime? — was committed that the superintendent, Dennis E. Penton, shall immediately report the matter, when he finds out, to the proper agency.”

Added Phillips, “It doesn’t say to wait eight months and see what the school board says, or to give Doug Smith a letter of reprimand; it says to immediately report the act to an appropriate law enforcement agency.”

He continued, “I agree with Mr. Necaise. Mr. Penton did report the matter to the sheriff, eight months after it happened.”

“The motion to dismiss this case should be denied and the case should be allowed to go forward,” Phillips told Breland.

Judge Breland told the attorneys that he would review the motions and “rule one way or the other.”

If Breland affirms Necaise’s motions, the case probably will be over.

After the hearing, which lasted about 20 minutes, Phillips would not say whether or not he would appeal the case if he lost. If Breland overrules or denies Necaise’s motions, the trial will proceed when another court date is set for the trial.

Breland gave no indication of when he might rule on Necaise’s motions. However, he did tell Necaise that “it will not be today. … It will be later.”

Necaise, in filing his motionon Jan. 12 to dismiss the charge, said McKenzie’s Oct. 22 ruling, that there was probable cause in Penton’s case and it could go forward, was “premature” and in a cover letter said that Penton was entering a plea of not guilty to the Aug. 12 charge.