by Jo Ellen Nott

The Mississippi Supreme Court mandated on April 13, 2023, that poor criminal defendants must have an attorney throughout the entire criminal process. In re Miss. Rules of Crim. Procedure, 2023 Miss. LEXIS 103 (2023). The state high court made this decision to eliminate the “dead zone” that many defendants face when they are left without legal representation after their initial appearance in court.

As well intentioned as the new rule is, it does not address the underlying problem of historically inadequate legal defense of the poor in Mississippi. The state has one of the highest rates of indigent defense funding in the country, and many counties have no public defender office at all. This means that poor defendants are often represented by inexperienced or overworked lawyers who are not able to provide them with the quality of representation they deserve.

In an article covering the April mandate, the nonprofit newsroom ProPublica quoted the executive director of the Sixth Amendment Center, a group who studies how states provide indigent criminal defense. “There is no other state where a defendant can be sitting in jail without an attorney for months or years while charging decisions are made,” said David Carroll.

Cliff Johnson, of the MacArthur Justice Center, pushed for the revised indigent defense rule. Johnson’s work showed how Mississippi’s 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. Those defendants trapped in the “dead zone” without legal counsel cannot fight their charges or strike a plea deal.

Johnson vows that advocacy organizations like his civil rights law center 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.”

The new rule took effect on July 1, 2023, but most of Mississippi’s state courts have not changed their procedures to be in compliance. The Marshall Project, the Daily Journal, and ProPublica surveyed courts and discovered that some local court officials were not even aware of the Supreme Court mandate. Others believed their current practice of appointing lawyers for limited purposes fulfills the new requirement despite the fact those attorneys only attend preliminary court hearings. Other courts do not know how they will respond and are considering options.

According to the head of the Mississippi Office of State Public Defender, only four of the state’s 23 circuit court districts have asked for advice on how to comply with the new rule. Andre de Gruy, an expert on indigent defense, responded by developing a model process the districts could use. His “Procedure for Appointment of Counsel for Indigent Defendants” covers training, qualifications, compensation, and timelines for representation. 

Perhaps the most significant challenge Mississippi faces in implementing the new rule is the lack of coordination between its different court systems. The state has a mishmash of court systems, and it is not always clear who is responsible for providing defense to the poor in each system. This leads to confusion and delay in ensuring that defendants have a lawyer.

ProPublica reports that 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.” Local governments shoulder most of the responsibility for providing poor defendants with legal representation, yet very few local governments have full-time public defenders, with most relying on part-time public defenders or contracts with private attorneys.

To make matters worse, Mississippi is one of only eight states in the U.S. without state oversight of public defense, so local jurisdictions operate without guardrails. With the new rule, officials in that jumble of different court systems must sort out how to provide defendants with legal representation as they move from courtroom to jail to courtroom.

The situation in northeastern Lee County shows how difficult it will be to comply with the new rule. There, officials are struggling to resolve how they will “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.”

Full-time public defender Dennis Farris represents the poor in Tupelo’s municipal court in Lee County. Farris’ first move in most cases is to argue for a low bond and then advise the defendant if he or she should request a preliminary hearing. After the initial hearing is held or the defendant waives their right to it, the municipal court loses jurisdiction over felony cases.

Tupelo city officials understand that the new rule means Farris cannot withdraw from those cases. Their solution is to have local circuit judges appoint felony public defenders to pick up the case immediately after the preliminary hearing to free up Farris to do the job he is paid to do in municipal court.

Farris says he has little to no time to tend to cases that will end up being handled in another court system. Regarding adhering to the new rule, he asks, “If I’m still on those cases, what am I supposed to do? Send a bill to the county? I’ll do what I can. But I’m only one person.”

The new Supreme Court rule is a step in the right direction, but it is only one piece of a big legal board game. Mississippi needs to invest more resources in indigent defense to ensure that all defendants have access to quality legal representation and monitor the implementation of the rule to ensure that it is being followed in all counties. Perhaps then the poor of Mississippi will receive the representation they need to protect their rights and receive a fair trial.  

Source: Propublica 

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