Baby killers appeal struck down by court | Free News

Gilbert claimed ‘ineffective counsel’ in 2021 conviction for causing crash with pregnant teacher

A Jones County man who was intoxicated when he caused a crash that killed a teacher’s unborn child appealed his conviction, claiming that he had ineffective counsel and that exercising his right to remain silent was used against him in trial.

James Cory Gilbert, 36, was ordered to serve 52 years in the full-time custody of the Mississippi Department of Corrections after a jury found him guilty of three felonies — DUI-related death of an unborn child, aggravated DUI and leaving the scene of an accident — after a trial in Jones County Circuit Court in October 2021. Gilbert had been drinking alcohol and smoking marijuana before causing a head-on collision on Welch Road, near Soso, in January 2020 with South Jones Elementary School teacher Mashayla Harper. She was eight months pregnant and on her way home from a baby shower for her unborn daughter Londyn. Harper was seriously injured and her baby was killed.

Gilbert, who was represented by attorneys Thomas Brame and Nick Cerra, claimed four instances of “ineffective assistance of counsel” and contended that then-District Attorney Tony Buckley, in his closing argument, “improperly drew attention to (his) exercise of his right to remain silent.”

The state Court of Appeals found Gilbert’s claims “are without merit” and unanimously affirmed the decision that was reached in Jones County Circuit Court. The high court’s decision was handed down on Aug. 29.

In the appeal, Gilbert’s new attorney questioned whether his client’s videotaped confession to investigators with the Jones County Sheriff’s Department and DA’s office was voluntary and admissible. But he “made no meaningful argument that his recorded interview was involuntarily given,” according to the appellate court ruling. It was noted that the video showed Gilbert being given his Miranda rights and agreeing to give a statement “without any evidence of intimidation or coercion.” Gilbert admitted to driving under the influence, crossing the center line of the road to cause the crash and “was quite remorseful upon learning that Harper’s baby did not survive,” according to the ruling, “but nothing to indicate that he did not knowingly, intelligently and voluntarily waive his Fifth Amendment rights and give the recorded statement. Trial counsel cannot be found to be constitutionally ineffective for failing to make futile objections to the admissibility of evidence.”

The appeals court also shot down another similar claim that “is simply not supported by the record.” Gilbert also took issue with Brame for admitting to the jury that Gilbert left the scene of the crash. But that was likely a “trial tactic,” the ruling acknowledged, since the jury saw Gilbert’s videotaped confession admitting to that, so his attorneys turned their attention to defending him on the DUI charges.

Gilbert also objected to his attorneys’ failure to object to then-Deputy Johnel Rogers’ testimony that the defendant’s wife told him that her husband was in possession of the truck after he called her about the abandoned, crashed vehicle that was registered in Gilbert and her names. Gilbert also argued that his attorneys should have challenged the admissibility of testimony by Deputy Patrick Oster, who told the jury that the defendant admitted that a toxicology test would show “THC and alcohol” in his system. But neither showed “deficient” counsel, according to the appeals court.

Gilbert also claimed that Buckley pitted “the testimony of the victim against the silence of the victim” in his closing argument, and his attorneys’ failure to object to that was “another instance of ineffective assistance of counsel.”

The ruling quoted a portion of Buckley’s closing, when he noted that the first thing Harper asked when she woke up in the hospital was to inquire if Gilbert was OK then if her baby was OK.

“Do you know the first thing James Cory Gilbert did after the wreck?” Buckley asked the jury. “He fled. He didn’t check on her, and he left her figuratively, literally, factually to die in a ditch in Jones County.”

Those “were not comments on Gilbert’s right to remain silent or directed toward his failure to testify,” according to the appeals court.

All of the high court’s rulings were supported by case law. Gilbert can still appeal to the state Supreme Court.

Gilbert’s blood-alcohol level — which was taken more than six hours after the crash — was a little more than .10, a crime lab expert testified. The legal limit for operating a vehicle is .08.

Brad Thompson, who is now DA, was the state’s key witness. He had been hunting near the crash site and was credited with saving Harper’s life.

A Jones County jury — made up of eight white men, three white women and one black woman — deliberated for only 45 minutes before returning the guilty verdict against Gilbert after three days of testimony.

Jurors did not hear Gilbert’s criminal history of 21 arrests since 2004, which included a felony DUI conviction and at least seven other alcohol-related offenses. But Judge Dal Williamson considered all of that before sentencing him to 52 years in prison.

“Mr. Gilbert, you have been a ticking time bomb for a long time,” the judge said,“ and today, it’s going to stop.”

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