JACKSON, MS (Mississippi News Now) -
The case as to whether pardons are valid is becoming a legal argument as to whether a court can even make the decision.
"The primary issue here is can any court review the exercise of the governor's pardon power under these circumstances and our position is they can not, it's non re-viewable," said Hattiesburg defense attorney Tom Fortner.
Fortner represents four of the five former trusties who were pardoned by former Governor Haley Barbour.
Fortner filed an emergency petition in hopes of getting his client's cases out of a Hinds County Circuit Courtroom and up the steps to the State Supreme Court.
Fortner says a judge should not have the authority to consider the validity of a governor's pardon power.
"To allow the pardon power to then be question by the courts, completely wipes out why we have the pardon power in the first place," Fortner said.
In a statement, Attorney General Jim Hood called efforts by Fortner a "side show" and the fact is, Governor Barbour didn't follow the law.
"They're going to try to get it up there and slow everything down but really it's a simple issue," Attorney General Hood said.
That issue is the State Constitution which requires a thirty day notice be published for anyone seeking a pardon before it can be granted.
Attorney General Hood says the requirement was not met in most cases including those who served as trusties.
Fortner says it didn't have to be.
"If the separation of powers argument is confirmed by the Mississippi Supreme Court then all the other talk about publication and who is or who isn't an applicant and so forth it's unimportant, it's irrelevant," Fortner said.
Pointing to the same section of the state constitution Fortner says only the legislature can review a governor's pardon which is why he asking the state's high court step in before Judge Tommie Green makes a decision as early as Friday as to whether a handful of pardons should be voided.
"I think Mr. Hood is refusing to address the initial issue or whether or not a court can review the governor's right to pardon," Fortner said.
At this point, there's been no ruling from the justices on this current petition.
But with Friday three days away, it's expected to happen soon.
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