In April, the Mississippi Supreme Court changed the rules for state courts to require that poor criminal defendants have a lawyer throughout the sometimes lengthy period between arrest and indictment. The goal is to eliminate a gap during which no one is working on a defendant’s behalf.
That mandate went into effect Saturday. But few of the state’s courts have plans in place to change their procedures in a way that is likely to accomplish what the justices intended.
A survey of courts by the Daily Journal, ProPublica and The Marshall Project found that some local court officials are unaware of the new rule. Others have not decided how they will respond. Some officials suggested that their current practice of appointing lawyers only for limited purposes will fulfill the new requirement, even though those attorneys do little beyond attending early court hearings.
That reporting suggests that impoverished defendants in many Mississippi counties are likely to remain deprived of meaningful legal assistance as they wait, often in jail, for prosecutors to decide whether to pursue felony charges.
“There’s really not a plan,” said Chuck Hopkins, a judge in a county-level justice court in northeast Mississippi’s Lee County. He fears that if officials don’t come up with one, the court could be “hung out there waiting for a lawsuit to happen.”
André de Gruy, who runs Mississippi’s Office of State Public Defender and is recognized throughout the state as an expert on indigent defense, said just four of the state’s 23 circuit court districts have asked him for advice on how to comply with the new rule. He responded by developing a model process they could use.
After someone is arrested for a felony in Mississippi, that person has an initial appearance in court. A judge informs the defendant of the charges against them, sets the conditions for being released from jail, and appoints a lawyer if the defendant can’t afford one. Under current rules, in many courts that lawyer handles just the initial appearance and, in some cases, an optional preliminary hearing when evidence is presented. After that, the lawyer exits the case.
Only after the defendant is indicted, which often takes months, is another lawyer appointed. Critics have dubbed the period between lawyers the “dead zone.”
Mississippi gives district attorneys unlimited time to indict someone after an arrest, and it’s among a handful of states where defendants can be jailed indefinitely as they await indictment, according to recent research by Pam Metzger, a legal scholar who runs the Deason Criminal Justice Reform Center at Southern Methodist University’s Dedman School of Law.
“Mississippi is among the worst of the worst on this issue,” Metzger said.
Cliff Johnson, a lawyer who pushed for the revised indigent defense rule, has documented how those two factors — the lack of an indictment deadline and the lack of legal representation in the “dead zone” — can cause defendants to be jailed for months or years. Without a lawyer, defendants may have a hard time fighting their charges or striking plea deals.
Johnson, who leads the Mississippi office of the MacArthur Justice Center, a civil rights law firm, said advocacy organizations like his will monitor courts for compliance with the new rule.
“This structural change means nothing,” he said, “if local judges don’t create and implement new comprehensive plans for indigent defense.”
Patchwork of Court Systems Handle Indigent Defense
The new rule on indigent defense makes one key change: It says a lawyer may not withdraw from a case pending indictment until another has been appointed.
Ordering that change now looks like the easy part. Implementing it is another story, largely because of the patchwork of courts in Mississippi.
Criminal defendants may move through as many as three different court systems, each with its own system of public defense, as they go from arrest to a plea deal or verdict.
Mississippi is one of only eight states without state oversight of public defense, according to the Sixth Amendment Center, which advocates for robust indigent defense. Instead, local governments bear almost all the responsibility of providing poor criminal defendants with an attorney, as guaranteed by the Constitution.
A few local governments employ full-time public defenders. Most rely on part-time public defenders or contract with private attorneys. They all generally have high caseloads.
Now, officials in those different court systems must figure out how to ensure that defendants maintain legal representation as they move from courtroom to jail to courtroom.
To understand how courts will do that, the Daily Journal, ProPublica and The Marshall Project contacted officials in all 23 circuit court districts, most of which cover more than one county, as well as more than a dozen officials in municipal courts and separate county-level justice courts. We spoke with more than 20 judges, public defenders, prosecutors, court clerks and private defense attorneys.
Only a few circuit districts said they were working to have a new policy by Saturday, including two on the Gulf Coast and one in southwest Mississippi. Many other court officials said they don’t know exactly how they’ll coordinate among the appointed lawyers who represent defendants, sometimes briefly, in court. Some officials worry they’ll have to pay to defend people who have charges pending in a different jurisdiction.
In Tupelo, located in northeast Mississippi’s Lee County, officials say they’re struggling to figure out how to bridge the gap between the municipal court, where people charged with felonies often have their initial appearance, and circuit court, where those charges are ultimately decided.
Indigent defendants are represented in Tupelo’s municipal court by a full-time public defender, Dennis Farris. He generally makes a case for a low bond so his client can be released from jail and advises the defendant on whether to request a preliminary hearing.
But after the initial hearing is held or the defendant waives their right to it, the municipal court loses jurisdiction over felony cases.
City officials agree that the new rule means Farris cannot withdraw from those cases, but they want local circuit judges to agree to appoint felony public defenders immediately after the preliminary hearing is held or waived so Farris can focus on the job he’s paid to do in municipal court.
Officials in the municipal court for Southaven, in the Memphis suburbs, want their circuit judges to agree to the same thing.
Farris spends most of every workday in municipal court, handling the steady stream of misdemeanors and felony initial appearances, with little time to tend to cases that will eventually be handled by another court system.
“If I’m still on those cases, what am I supposed to do? Send a bill to the county?” he asked. “I’ll do what I can. But I’m only one person.”
Lee County’s justice court faces a different, but common, challenge in following the new rule: The private attorney who handles indigent defense typically has a limited role. Dan Davis handles only bond reductions, weeks after a defendant’s initial appearance in court.
Davis doesn’t attend initial appearances and rarely requests preliminary hearings for his clients. He acts on behalf of defendants only if they remain in jail after 30 days. If so, he contacts them to gather information to file a bond reduction motion.
“If someone bonds out, my part is basically done” except in rare circumstances, Davis said. “They’re off my list.”
Given that the justice court has limited expectations of what he must do, Davis believes he fulfills his obligations to defendants.
He anticipates little change in how he does his job under the new rule. Since he never files motions to withdraw from his cases, Davis said, he will remain a defendant’s attorney until an indictment, and the new rule will appear to be satisfied.
But he believes it is “very unusual” for a defendant to require much legal assistance after bonding out. If he were to find his workload increasing, he may not want to keep the job. Hopkins, the justice court judge, said the county may need to find a full-time public defender.
Experts say during the first few months after someone is arrested for a felony, there’s important work to be done: interviewing witnesses, securing evidence, perhaps seeking an early plea deal. If someone is jailed for months without being indicted, their attorney can ask the DA what’s taking so long or file a motion to dismiss the case.
Justin Cook, the former head of the state public defender’s association, warned attorneys against superficial adherence to the new requirement.
“You owe an indigent defendant effective representation under the Constitution,” he said. “You are not nominally their lawyer. You are their lawyer, and you have duties and obligations to them.”
An Alibi That Grew Cold
A case in Hinds County that is wending its way through federal appeals shows what can happen if an appointed lawyer doesn’t act early and aggressively to investigate a defendant’s claims of innocence.
Sedrick Russell has spent more than 15 years arguing in court filings that he lacked representation after he was arrested for a nonfatal shooting with no eyewitnesses.
From his arrest in December 2006 until February 2008, Russell claims, he spoke with a public defender just once, briefly. During that time, he sent seven handwritten letters to the court alleging that his right to a speedy trial had been violated and complaining that he hadn’t spoken to an attorney.
Russell has claimed in court filings that at his preliminary hearing in January 2007, he tried to tell a lawyer with the Hinds County Public Defender’s Office about an alibi. But he didn’t get far.
Russell claims that before the shooting, he got into a car driven by a friend he knew only as Ron Ron, and the two left the site where the shooting later took place.
“The assistant public defender who came to his preliminary hearing brushed off Russell’s request to get Ron Ron to testify, telling Russell, ‘It was just a preliminary.’ She never came back,” U.S. District Judge Carlton Reeves later wrote, after Russell had appealed his conviction.
In February 2008, the state trial judge removed the Hinds County Public Defender’s Office from the case and appointed a private lawyer, Don Boykin. Within about a month, Boykin told prosecutors that Russell intended to raise an alibi defense. But Boykin never found Ron Ron.
Russell was convicted in a jury trial in January 2009 and sentenced to two life terms because he had been deemed a habitual offender.
It took years for Russell to exhaust his appeals in state court. When he took his case to federal court, Reeves ruled that Russell had been denied his Sixth Amendment right to an attorney, even though, as far as the local courts were concerned, he was represented by indigent counsel the entire time. The judge determined that Russell had been “completely abandoned by counsel” for 14 months, including eight before he was indicted.
Reeves vacated Russell’s conviction but stayed his order pending an appeal to the Fifth U.S. Circuit Court of Appeals.
In May, the appeals court reversed Reeves’ ruling and reinstated Russell’s conviction. The three-judge panel ruled that Reeves had overstepped his limited authority to overturn a state court, given a federal law that sets a high standard for doing so. The court also expressed doubt about whether Ron Ron even existed, let alone whether his testimony would’ve exonerated Russell.
Alysson Mills, Russell’s federal court-appointed attorney, said her client intends to appeal to the U.S. Supreme Court.
Cook, who handles state-level appeals for indigent defendants, said at least half of the defendants he represents claim that key witnesses or other evidence have gone missing. But he can’t introduce new evidence on appeal, and even if he could, it can be difficult to verify those claims.
“Hopefully that is what will get remedied by this new rule,” Cook said. “People can meet with their lawyers and that investigative work can happen early.”
Gail Lowery, the head of the Hinds County Public Defender’s Office, said she has discussed Reeves’ ruling with attorneys in the office. She said she stressed the need to investigate cases early and to locate key witnesses or evidence before it can be lost.
Lowery said she doesn’t know whether Russell’s public defender ignored his alibi claim. She didn’t work there at the time, and two key people involved have since died. But if his claim was ignored, Lowery said, “that will never happen again.”
The public defender initially assigned to a case, she said, interviews the defendant, typically within a week of an arrest, and seeks to identify witnesses and key evidence.
“That pre-indictment time, it’s critical. We’ve been doing it, but we’re shoring it up in light of the changes” to the rule on indigent defense, Lowery said. “I’m reminding everyone, we need to be vigilant.”
She acknowledged, however, that there’s limited time for investigative work given caseloads and limited resources.
Johnson, the MacArthur Center head who pushed for the rule change, knows this.
“The next step in our fight,” he said, “is to convince legislators to provide our public defenders with resources equal to those given to prosecutors and law enforcement.”