Political Wickedness Has Deadly Consequences In Mississippi Senate Race

Mark Mayfield

The Senate Republican runoff primary race between six-term incumbent Sen. Thad Cochran and Tea Party-supported candidate Chris McDaniel was by all accounts as dirty as campaigns in this country can get. Republican operative Karl Rove's involvement on behalf of the incumbent pretty much ensured that outcome. It's not often, though, that dirty politicking results in criminal charges and suicide, both of which occurred in this pathetic campaign, which ended on Tuesday with Cochran eking out a narrow victory of a few thousand votes in a run-off election after McDaniel had finished ahead of the incumbent in the initial primary election by a little more than a thousand votes. Cochran was criticized by conservative Republicans in the state for urging Democrats to cross over and vote in the Republican primary race. One pro-Cochran group put out a racist flier that purported to be produced by the Tea Party to inflame the state's African-American voters against McDaniel in hopes they would come out and vote for Cochran in the closely-fought race. McDaniel has refused to concede the race, arguing that persons who voted earlier in the Democratic primary had illegally cast votes in the run-off primary election race to secure a win for Cochran.

The most bizarre incident during the campaign, however, occurred when a young political blogger who supported McDaniel's campaign entered a nursing home where Cochran's wife, Rose, has been confined for more than a decade, suffering from advanced Alzheimer's Disease, and recorded images of her asleep in her bed on Easter Sunday. The blogger, Clayton Kelly, used the images in a negative YouTube clip he uploaded to the Internet but quickly took down after it was denounced by the Cochran and McDaniel campaigns alike. The purpose of obtaining the images was to advance allegations that Cochran was involved in an inappropriate relationship with a female staffer who frequently accompanied him on trips. Cochran denies having an inappropriate relationship with the staffer, although he supposedly lives in the basement of her Washington, D.C. home.

Naturally, the Cochran campaign exploited the unseemly actions of Kelly to tarnish McDaniel, who denied any involvement with Kelly's actions. The Madison County district attorney, Michael Guest, a supporter of Cochran's re-election campaign, in a highly unusual move charged Kelly with a felony charge for photographing Cochran's wife without her consent where there is an expectation of privacy, a criminal voyeurism statute intended to be used against persons accused of photographing or filming a person in a state of undress for the person's sexual gratification. Guest surprised many observers when he added more charges against Kelly and charged three more men associated with the Tea Party, including a prominent and well-respected real estate attorney in Jackson, Mississippi, Mark Mayfield, of conspiring with Kelly. In bringing the charges, the district attorney said there was no evidence the McDaniel campaign had any involvement with the photographing of Cochran's wife. He never elaborated on the role the other men charged played in aiding Kelly with the alleged crime. Kelly's attorney claimed he had never met any of the other men prior to their arrest and was surprised to learn they were charged in connection with his case.

Mayfield was charged with conspiracy, along with a radio talk show host, John Mary. A third man, Richard Sager, a physical education teacher and coach, was charged with evidence tampering and conspiracy. Questions about the overcharging and the manner in which the case was being prosecuted quickly arose. Friends of Mayfield claimed that a SWAT team of six police officers descended on Mayfield's law office to make his arrest. Mayfield's attorney described the arrest as something you would see in China or Russia. Unlike Mayfield, Kelly had been allowed to turn himself into police voluntarily to face charges, while the other two men had been arrested by police in a discrete manner. Attorneys for the men all complained about bail being set unusually high for all four men. Sager's bond was initially set at $500,000, while bail for Mayfield, Mary and Kelly was set at $250,000. Kelly's bail was later reduced to $75,000, and Sager's bail was reduced to $50,000 after their attorneys appealed to the judge to set the amount in line with the charges brought against the defendants. Mary was released from jail due to health problems. Mayfield had already been bailed out on a $250,000 bond.

According to friends, the fallout from the criminal charges came fast and hard for Mayfield. "The day after his arrest, he started losing law clients, including three banks that were large clients, those close to him have shared" the Clarion-Ledger reported. Friends told the newspaper that the ordeal had "destroyed him" and left him "clearly scared and anguished." Yesterday morning, he took a revolver with him into a storage room of his garage and shot himself. His wife found him dead, along with a suicide note he left nearby. Police have refused to disclose the contents of the note. The Clarion-Ledger spoke to Pat Bruce, a friend and fellow Tea Party associate about Mayfield's shocking death. "He was a small man in stature, physically, but he was the biggest man I knew inwardly," Bruce said. He was kind and smart and passionate about what he believed in. He was the finest man I know." "They killed him . . . They sent a SWAT team to his office, six officers, just to arrest him." The newspaper disputes the account that a SWAT team was utilized, but it acknowledges that multiple police officers in several police cars with lights on showed up at his law office compared to the low-profile manner in which the other arrests in the case were made. "Politics has gone too far, Bruce said. "I'm just outraged."

Before Mayfield took his life, his attorney, Merrida Coxwell, protested his innocence. "Not only did Mr. Mayfield not agree to take the photographs, but he also did not conspire to take them." Coxwell challenged the sufficiency of the underlying charge against Kelly, let alone the conspiracy charge against his client. "They have to show Clayton Kelly's actions were lewd, licentious or indecent--not journalistic," Coxwell told the Clarion-Ledger in reference to the state voyeurism statute. "A journalist, even a small journalist--and the Supreme Court has ruled bloggers are journalists--have the same protections of any other journalists." "This may be protected speech in a political arena," Coxwell continued, admitting that doing so was "stupid." "Regardless, they not going to find any proof of Mr. Mayfield's involvement." Unfortunately, Mayfield's guilt or innocence has been rendered moot by his unfortunate death. Coxwell seems to have a very valid point on the validity of the underlying charge against Kelly. Mississippi's voyeurism statute reads:

Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony and upon conviction shall be punished by a fine of Five Thousand Dollars ($ 5,000.00) or by imprisonment of not more than five (5) years in the custody of the Department of Corrections, or both.

The words "lewd, licentious or indecent" all connote that Kelly's intent in photographing Cochran's wife was sexual in nature of which there is no evidence. There is also no evidence that the victim was in a state of undress. According to news reports, the images Kelly posted on his blog showed her asleep in her bed clothed in sleep wear. I think the prosecutor would have been hard pressed to prove the elements of Mississippi's video voyeurism statute regardless of how poor in taste it was for Kelly to take the images. It is not at all uncommon that we witness tabloid photojournalists photographing and videotaping various celebrities in various states of declining health under questionable circumstances. Although Sen. Cochran is clearly a public person, it would be harder to argue that his mentally infirm wife who is permanently confined to her nursing home bed is a public figure. It seems that a civil remedy for invasion of privacy claim by Sen. Cochran, however, would have been a more appropriate remedy to have pursued against Kelly for photographing Cochran without her consent rather than criminal charges. What are your thoughts?