Mississippi indictment laws

Mississippi indictment laws DEFAULT

Grand Jury and Indictment

Grand jury is the last stage in a criminal investigation. As with all criminal investigations, grand jury proceedings are secret. Grand jurors and petit (trial) jurors are selected from the rolls of registered voters in the county and judicial district where they live. Grand jurors are chosen at random from this jury pool. Twenty grand jurors are impaneled. A minimum of fifteen grand jurors is required to meet and hear the criminal cases. However, only twelve grand jury votes are required to indict a criminal charge.

Once empaneled, the circuit judge will appoint a grand jury foreman. Grand jurors and witnesses must take an oath to keep deliberations secret. Typically a grand jury panel sits for six months, meeting as often as necessary to consider criminal prosecutions and other matters required by law.

A Mississippi grand jury is authorized and empowered by the Mississippi Constitution and law to investigate crimes to decide if whether a crime has been committed and whether the defendant can be identified as the perpetrator of that crime. In order to discharge its investigative duties, the grand jury has broad subpoena powers to compel the attendance and testimony of witnesses and production of documents and evidence.

The grand jury’s broad investigative powers extend to on site inspection of the county jail, youth detention, and sixteenth section land. The grand jury can also hear from the circuit clerk, chancery clerk, tax collector, forestry commission, and board of supervisors and make recommendations in their final report.

Grand Jury Witnesses

Persons testifying before the grand jury are entitled to immunity from prosecution for the crime being investigated. Of course, every witness has a fifth amendment U.S. constitutional right not to incriminate himself and the grand jury cannot compel a witness to do so. If the target or subject of a grand jury investigation wishes to testify, that person can voluntarily waive state law grand jury immunity and U.S. constitutional fifth amendment privilege. Anyone testifying before the grand jury is entitled to seek legal advice. However, the subject’s lawyer is not permitted to appear before the grand jury and must wait outside. Gulfport defense lawyer Rufus Alldredge has represented defendants and witnesses at the state and federal grand jury stage.

The only persons authorized to appear before the grand jury are the prosecuting attorney presenting the case and any witnesses, such as police investigators or victims. Prosecutors authorized to present matters to the grand jury are the District Attorney and assistants, Attorney General and assistants and the county prosecuting attorney. However, when the grand jury votes to indict or to no true bill a case, only the grand jurors themselves are present. Even prosecutors are excluded during the grand jury vote. Unlike federal grand juries, Mississippi grand juries generally do not have a court reporter to record and transcribe witness testimony. Mississippi grand juries are authorized to send target letters to subjects being investigated. Anyone receiving a target letter from a federal or Mississippi grand jury should immediately consult an attorney for representation.

Gulfport defense lawyer Rufus Alldredge has represented clients who are the target or subject of a federal or state grand jury investigation. Mr. Alldredge has also represented clients called to testify as a witness before federal and state grand juries.

Grand Jury Indictment

When hearing criminal charges, a Mississippi grand jury is authorized to resolve the charge one of three ways. A “True Bill” is a finding of probable cause that the defendant committed the crime. The resulting accusation is called an “Indictment” and identifies the defendant, a concise statement of the facts sufficient to notify the defendant of the elements of the crime charged, jurisdiction of the court, the date of the offense and signature of the grand jury foreman and District Attorney. Depending on the nature of the crime, an exact date may not be required. As long as the defendant is on notice of the charge and its elements, the indictment is sufficient. In practice, most indictments today list the Mississippi code section charged but this is not required by law. The grand jury is authorized to indict felony crimes as well as misdemeanors. However, the overwhelming majority of indictments are for felonies only. If misdemeanor charges are indicted, they usually pertain to the felony charge subject of the indictment.

No True Bill is a Dismissal

A “No True Bill” is a grand jury finding that probable cause does not exist. This means the investigation is concluded and the charge is dismissed. Finally, the grand jury is also authorized to charge a misdemeanor even if it is not a lesser included offense. In this case, the grand jury sends the charge back to the court it originated from, usually justice court or municipal court. By investigating and hearing criminal charges, the grand jury also protects the public from unwarranted prosecution. Even if the grand jury issues a No True Bill (dismissal) the arrest remains of record. The arrest and charge can be expunged from government records upon proper application to the court.

Waiver of Indictment and Bill of Information

The defendant has the right to waive grand jury presentation and indictment after advice of counsel. Frequently, waiver of indictment follows plea negotiations with the prosecutor resulting in a more favorable or reduced charge. The defendant can agree to prosecution by a Bill of Information and Waiver of Indictment.

Multi Counts

Other special considerations for the grand jury are multiple counts and multiple defendants charged in a single indictment. The defendant can file a motion to sever counts and co-defendants in order to provide the jury with a clear and unbiased view of the facts. Severance of counts and co-defendants is granted in order to fairly determine the defendant’s guilt or innocence.

Amendment as to Form Only

Upon proper motion by the prosecution, indictments may be amended for form but not substance. Under some circumstances, an indictment can be amended to conform to the proof.

Habitual Offender

Amendments to the indictment that affect sentencing have been held by the Mississippi Supreme Court to be formal (a matter of form) and not substantial (a matter of substance). This means that the prosecutor can file a motion in court before plea or trial to charge the defendant as habitual offender. Habitual offender status means that the defendant has been convicted of two prior felonies and sentenced to a year to serve on each, even if the defendant got probation. An habitual offender can be sentenced to the maximum time to be served day for day without parole or early release. A life habitual offender means the defendant has two prior felony convictions, that he served at least a year in prison on each conviction, and one conviction was for a crime of violence. A life habitual sentence means life without parole. Habitual offender sentences, like all sentences, must not be cruel or unusual. The sentencing court has authority to reduce the sentence below the maximum to avoid cruel, unusual or disproportionate punishment. However, all habitual offender sentences will be served day for day without parole or early release.

Drug Enhancement Doubles the Penalty

Sentencing enhancement for possession or sale of drugs near a church, school or playground enhances or doubles the penalty for a drug conviction. If the defendant has a prior drug conviction, the penalty can also be enhanced or doubled. The grand jury is authorized to include the sentencing enhancement in the indictment. Alternatively, the District Attorney, on written motion, can ask the court to amend the indictment to include sentencing enhancement.

Trigger Lock - Guns and Drugs

Mississippi has a trigger lock law which adds a sentencing enhancement for possession of a firearm during a drug crime. The Mississippi trigger lock law increases the penalty for a drug conviction where the defendant possessed a firearm at the time of the offense or the arrest. Like other sentencing enhancements, the grand jury is authorized to include the enhancement in the indictment. Alternatively, the District Attorney can move the court to amend the indictment for the enhanced penalty.

Do Not Delay

If you are a target, subject or witness regarding a grand jury proceeding, call immediately. Call the law office of Rufus Alldredge today at 228.863.0123. We are located at 1921 22nd Avenue in Gulfport, Mississippi.

Sours: https://www.arrestedms.com/grand-jury-and-indictment.html

2013 Mississippi Code
§ 13-7-35 - Requirements for "True Bill" of indictment; place where indictment is to be tried [Repealed effective July 1, 2014]

MS Code § 13-7-35 (2013) What's This?

(1) In order to return a "True Bill" of indictment, twelve (12) or more state grand jurors must find that probable cause exists for the indictment and vote in favor of the indictment. Upon indictment by a state grand jury, the indictment shall be returned to the impaneling judge. If the impaneling judge considers the indictment to be within the authority of the state grand jury and otherwise in accordance with the provisions of this chapter, he shall order the clerk of the state grand jury to certify the indictment and return the indictment to the county designated by the impaneling judge as the county in which the indictment shall be tried.

(2) Indictments returned by a state grand jury are properly triable in any county of the state where any of the alleged conduct occurred. The impaneling judge to whom the indictment is returned shall designate the county in which the indictment shall be tried. If a multicount indictment returned by a state grand jury is properly triable in a single proceeding as otherwise provided by law, all counts may be tried in the county designated by the impaneling judge notwithstanding the fact that different counts may have occurred in more than one (1) county.

(3) In determining the venue for indictments returned by a state grand jury, the impaneling judge shall select the county in which the state and defendant may receive a fair trial before an impartial jury taking into consideration the totality of the circumstances of each case.

(4) When the indictment has been returned to the circuit clerk of the county designated by the impaneling judge, the capias shall be issued as otherwise provided by law. The indictment shall be kept secret until the defendant is in custody or has been released pending trial.

Disclaimer: These codes may not be the most recent version. Mississippi may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

Sours: https://law.justia.com/codes/mississippi/2013/title-13/chapter-7/section-13-7-35/
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2. INITIAL APPEARANCE. Within 48 hours of arrest, the person arrested must be brought before a judge to be informed of the charges that are holding him or her in jail and to have the judge set a bond.
3. BOND HEARING. The person arrested on a felony cannot get out of jail without a bond. A bond is an amount of money paid by the person arrested (cash bond) or with the help of a bondsman who takes a percentage of cash money on the bond issued by the Court(about 10 percent)and then insures the remaining amount. A bond is paid to insure that the arrested person will come to Court. If the accused person does not show up for court after “bonding out of jail”, then a judge will issue a bench warrant for the accused person’s arrest and a judgment that if the accused is not arrested the bond is forfeited. The bonding company attempts to capture the accused to avoid paying out the judgment for the full amount of the bond. If a bond is set unreasonably too high for the accused to be released, then the accused’s lawyer can request a bond reduction hearing before the judge. There are some instances when the accused is not entitled to a bond due to being a flight risk or risk to the safety of the victim.
4.PRELIMINARY HEARING. A preliminary hearing is conducted to show whether there is probable cause to hold the accused in jail until the Grand Jury meets. The accused person has a preliminary hearing if he or she cannot successfully be released from jail on a bond. If the accused is released from jail on a bond, then there is no right to preliminary hearing.
5.GRAND JURY. In Mississippi, a “felony” criminal case moves from the local city or Justice Court to Circuit Court after the accused is indicted by a grand jury. The district attorney’s office presents a “felony” criminal case to a secret grand jury to determine if the State of Mississippi has enough evidence to fairly require a citizen to answer to and defend against a felony criminal charge. If the grand jury rejects the district attorney’s case for indictment, then the lower court may take the case back and prosecute the case as a misdemeanor. The primary difference between a felony and misdemeanor is that if convicted of the felony, the possible jail time for the accused is more than one year.
6.SERVICE OF CAPIAS AND INDICTMENT. After the grand jury issues a felony capias and indictment against the accused, the sheriff will serve a copy of the capias and indictment to the accused person with a list of charges and a date to appear before the Circuit Court. If the person is already out of jail on a bond and on good terms with the bonding company, then sometimes the accused can pick up their capias and indictment from the sheriff’s office instead of being arrested again. Sometimes the accused has to be arrested for the first time upon the indictment and released from jail with a bond.
7.ARRAIGNMENT. An arraignment is a formal hearing where the accused appears before the Circuit Court and pleads guilty or not guilty of the felony charge or charges stated in the indictment from the grand jury.
8.6th AMENDMENT RIGHT TO AN ATTORNEY. A person accused of a felony can either hire a private attorney to help defend against the felony indictment or may be entitled to a public defender if the accused is indigent or unable to pay for a private defense attorney.
9.DISCOVERY. After the accused either hires a defense attorney or utilizes the services of a court appointed attorney, the attorney will request discovery from the district attorney’s office. Discovery is basically all the evidence that the State of Mississippi has in the felony case, both good and bad. The defense lawyer will provide a copy of the discovery to the accused person and schedule an appointment to review discovery. The attorney and accused will also begin to discuss any plea offers made by the State of Mississippi. If the accused decides to take the case to trial, then reciprocal discovery from the accused will be required to be submitted to the district attorney’s office. Basically, both sides must submit any evidence they plan to introduce at trial in the discovery process prior to trial or risk that evidence not being admitted at trial.
10.PLEA. If the accused decides to accept a plea offer from the district attorney’s office, rather than take the case to trial, then the accused will submit a plea petition and participate in a hearing before the Circuit Court Judge to accept that plea. Typically, the district attorney will have a recommendation for sentencing on the case but the Circuit Court Judge is not required to accept that recommendation from the district attorney.
11.TRIAL. If plea negotiations are unsuccessful or the accused maintains his or her innocence, then the case may proceed to trial. If the accused is found not guilty or innocent at trial, then the case is over and the accused is free to leave. If the accused is found guilty at trial, then the Court can proceed or put off sentencing of the convicted person to a later date.
12.APPEAL. If the accused person is found guilty and the Circuit Court Judge will not reconsider his ruling, the convicted person may appeal the Circuit Court Judge’s ruling to either the Mississippi Court of Appeals or the Mississippi Supreme Court to decide whether the Circuit Court Judge’s decision will be upheld. A ruling from the Mississippi Court of Appeals may be appealed to the Mississippi Supreme Court.

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Sours: https://dabarlaw.com/2018/05/31/basic-mississippi-felony-procedure/

Felony Law


The word felony refers to a group of crimes that are considered to be the more serious and are distinguished from the lesser crimes called misdemeanors. In Mississippi the criminal justice system still uses the terms felony and misdemeanor, while other states have done away with the terms and classify crimes as Class A, B, C, ect. The kinds of crimes that are considered to be felonies include, but are not limited to murder, rape, arson, drug crimes, embezzlement, grand larceny and some repeat misdemeanors, such as a third offense for shoplifting or a third offense driving under the influence.


In Mississippi a felony can only be returned by a Grand Jury. A Grand Jury is a group of citizens from a County who are summoned to the Courthouse just like a Petit jury, or trial jury, and who are given an oath and the responsibility to inquire into crimes that have been committed in the County. The Grand Jury does not determine guilt or innocence, they only decide if there is probable cause to believe that a crime has been committed and that the person charged committed the crime. No one generally appears for the accused citizen and he is not called by the Grand jury. If the Grand Jury finds probable cause, they will return a True Bill or as it is commonly called, an Indictment. The Indictment is not evidence of a crime and may not be introduced into evidence. It is merely the charging document that starts the formal criminal process in Circuit Court. In some instances citizens accused of felonies can waive their right to have an Indictment returned by a Grand Jury. When this is done it is often part of a plea bargain and the accused agrees to allow the prosecution to proceed forward on what is called an Information. This is simply an Affidavit, much like what is used in misdemeanor cases.

Merrida Coxwell in trial

The answer to this question is yes and no. A accused citizen charged with a felony can only have his charges presented in Circuit Court by way of Indictment unless the accused waives Indictment and agrees to allow the Prosecution to proceed by Information. However, charges are often brought against a person prior to a Grand jury Indictment. In the usual scenario law enforcement authorities respond to information of a crime and begin their investigation. The results of that investigation often focuses one or more persons. If the law enforcement officials arrest a person(s), they do this based on probable cause to believe they committed the crime. They can arrested with or without a warrant. Though a warrant is preferred in the law, in many instances it is not practicable for the law enforcement officials to obtain a warrant, such as a crime in progress, so they take the offender into custody. Once the person is arrested he will be taken to jail to await his first appearance before a Judge.

If you have found yourself on the wrong side of the law and are facing criminal charges, please contact the experienced criminal defense firm at Coxwell & Associates, PLLC today to schedule a confidential meeting.

Sours: https://www.coxwelllaw.com/felony-law.html

Laws mississippi indictment

Withholding felony representation for months at a time in Mississippi

Pleading the Sixth: Felony defendants throughout Mississippi are arrested and then routinely wait from typically two months to up to a year before a lawyer begins working on their behalf. When a felony lawyer is finally appointed, the attorney is too often under-resourced, overworked, and financially conflicted between working on behalf of the defendant’s legal interests and doing what the attorney needs to do to please the judge to secure the next contract or appointment. With the situation so dire, why then is the 6AC optimistic that change is finally coming?

In United States v. Cronic, the U.S. Supreme Court said, “the adversarial process protected by the Sixth Amendment requires that the accused have ‘counsel acting in the role of an advocate.’” Yet the vast majority of indigent persons accused of felony crimes in Mississippi never have an attorney working on their behalf prior to their arraignment in circuit court. Instead, during the entire period between a felony arrest and the arraignment on indictment, indigent felony defendants fall into a “black hole” in which they are not represented by an attorney. This is the principal finding of the Sixth Amendment Center’s new report, The Right to Counsel in Mississippi: Evaluation of Adult Felony Trial Level Indigent Defense Services, released March 19, 2018, that assessed services in ten local jurisdictions (Adams, Clarke, DeSoto, Forrest, George, Harrison, Hinds, Leflore, Lowndes, and Pearl River counties).

Supreme Court Presiding Justice James W. Kitchens, chairman of the Public Defender Task Force, said, “I feel very strongly that Mississippi would benefit in multiple ways from a well organized and adequately funded state defender system so we wouldn’t have great disparity in the quality of legal representation in different parts of the state.” Justice Kitchens, a former district attorney who has also represented indigent defendants, said, “The DA system is a very good, functioning system. The counterpart of that system is the public defender system. The majority of defendants in circuit courts in Mississippi are indigent. They can’t afford a lawyer who is as good, experienced and well trained as the district attorney and his or her assistants.”

The Justice’s words underscore the seriousness with which state policymakers and criminal justice actors are taking the new report, which was commissioned by a legislative task force and funded through a U.S. Department of Justice, Bureau of Justice Assistance grant. Indeed, the Task Force is already working to determine the most appropriate way to promulgate, monitor, and enforce uniform right to counsel standards in a way that accommodates the unique procedures and substantive law of the state, is fiscally responsible, and protects public safety. “I have been extremely impressed with the seriousness with which the Task Force undertook their mission and have no doubt that its members will continue their hard work to rectify these issues,” stated 6AC Director David Carroll upon the report’s release.

The ABC’s of indigent defense in Mississippi

Unlike many states where municipal courts only hear local ordinance violations, Mississippi’s 246 municipal courts adjudicate misdemeanors and hold initial and preliminary hearings on felonies. This makes cities and towns responsible for much of the cost of right to counsel services initially, and then after felony preliminary hearings the full cost of felony defense is borne by Mississippi’s counties. Local governments, however, have significant revenue-raising restrictions placed on them by the state, while being statutorily prohibited from deficit spending. There are three revenue sources available to local governments: real estate taxes; fees for permits and services; and assessments on ordinance violations, traffic infractions, and criminal convictions. But, because Mississippi limits the amount of property tax that counties can impose, local governments must rely more heavily on unpredictable revenue streams, such as court fees and assessments, to pay for their criminal justice priorities. It comes as no surprise then that there is wide inconsistency in how indigent defense is provided across the state.

Mississippi requires that counsel be provided either through a public defender office or through appointment of individual private attorneys. Whichever system is used, the circuit court judges presiding in a county select the attorneys who represent indigent people charged with felonies, within the budget allotted by the county board of supervisors.

In those counties that have established a public defender office, the circuit or senior circuit judge selects an attorney to serve as the full-time or part-time public defender. Only seven of Mississippi’s 82 counties have established full-time public defender offices, including Forrest, Harrison, Hinds, and Pearl River, all of which were studied closely for the evaluation.

Where the county board of supervisors does not establish a public defender office or when the public defender office has a conflict of interest, the circuit court judge appoints an individual attorney to represent an indigent defendant charged with a felony. The attorney is paid out of the county’s general fund. The court may approve compensation in whatever manner (hourly rate or fixed fee) and at whatever amount the appointed attorney is willing to accept, but the maximum amount that an attorney can be paid for a single felony case is $1,000 plus reimbursement of actual expenses.

Only 12 counties in the state, including Leflore, provide representation to indigent felony defendants exclusively through appointed private attorneys who are paid an hourly rate. The remaining 63 counties, including Adams, Clarke, DeSoto, George, and Lowndes, provide the right to counsel through appointed private attorneys who are paid a fixed fee to represent an unlimited number of indigent felony defendants.

Waiting for justice: the denial of counsel in felony prosecutions

When a person is suspected of a felony offense in Mississippi, he will be arrested. Every person arrested on a felony charge in Mississippi has a right to an initial appearance before a judge within 48 hours, unless the defendant has been indicted by a grand jury or is released from custody prior to the initial appearance occurring.

A defendant who is arrested for a felony and who has not been indicted by a grand jury is entitled to have a preliminary hearing. The preliminary hearing is a critical stage in a criminal case at which the indigent defendant has a right to counsel. Only a very small percentage of indigent defendants who are arrested on a felony in Mississippi ever have a preliminary hearing, because as a practical matter, the scheduling of a preliminary hearing is treated as a triggering mechanism to have some attorney present in court to represent an in-custody felony defendant for the limited purpose of securing a bond reduction. In all ten of the studied counties, felony defendants are almost always offered and accept a bond reduction in exchange for waiving their right to preliminary hearing.

For the small number of indigent felony defendants who actually have a preliminary hearing, in only two of the ten counties will the attorney who represents an indigent felony defendant at a preliminary hearing conduct any investigation to prepare for the hearing. Indigent felony defendants usually meet their preliminary hearing attorney for the first time at the courthouse on the day of the hearing for a brief 5- to 10-minute conversation.

In most of the studied counties, the attorney appointed to represent an indigent felony defendant at a preliminary hearing is not, other than through coincidence, the attorney who will represent the defendant following any indictment subsequently returned by a grand jury.

Once a preliminary hearing is either waived or held, an indigent felony defendant in the ten closely studied counties is not represented by any lawyer until arraignment in circuit court after a grand jury indictment. The Mississippi Constitution requires that felony prosecutions be instituted by a grand jury indictment. A large amount of time can pass between an indigent felony defendant being arrested and/or bound over and a grand jury returning an indictment, and Mississippi law does not impose any limits on the amount of time that is allowable. On average, the delay between arrest and grand jury indictment in the ten studied counties ranges from two months to over a year.

Once an attorney is appointed other systemic deficiencies take hold

The 6AC has written extensively about the preeminent need for a public defense system to ensure the independence of the lawyers from undue judicial interference. Far from ensuring that independence, the State of Mississippi statutorily imposes undue judicial interference with the right to counsel for indigent defendants. It does so in two primary ways: by requiring judges to hand-select the attorneys who are paid to provide representation to indigent defendants, rendering the defense attorneys beholden to the judge for their livelihood; and by allowing judges to enter into payment agreements with indigent defense attorneys that create a conflict of interest between the defense attorney’s financial self-interest and the criminal case interests of the indigent defendants whom they are appointed to represent.

Attorneys in judicially controlled indigent defense systems often, consciously or unconsciously, follow or adjust to the needs of each judge in each court, rather than focus on providing constitutionally effective services for each and every defendant. Fearing the loss of their job if they displease the judge who hires them, defense attorneys bring into their calculations what they think they need to do to stay in the judge’s favor. When public defense attorneys take into consideration what must be done to please the judge in order to get their next appointment or hold on to their contract, by definition they are not advocating solely in the interests of the client, as is their ethical duty.

In counties with a public defender office, the judges are supposed to choose the public defender from a list of attorneys recommended by the local bar association, but in the counties studied for this report, there was no indication that judges follow this direction. The designated public defender is statutorily authorized to choose the assistant public defenders, but in only two of the four public defender offices evaluated in this study does the public defender select the assistant public defenders independently of the judges. Thus, even where the legislature has attempted to impose a degree of independence from the judges in selecting attorneys to represent the indigent accused, this is rarely occurring in practice.

In counties where private attorneys are appointed, the circuit court judges by and large decide how much money the attorneys will be paid to represent indigent felony defendants.

Where judges choose to pay attorneys an hourly rate, because an attorney cannot be paid more than $1,000 in a single defendant’s case, the number of hours an attorney will devote to each indigent defendant’s case is determined by the hourly rate of pay set by the judges. For example, if the judges set pay at the relatively high rate of $100 per hour, the attorney cannot be paid for any more than 10 hours of work in a single case, no matter how many hours a client’s legal interests require. If the attorney devotes even a single minute more than 10 hours, he is donating his time for free to represent the indigent defendant.

Once the attorney reaches the number of hours for which he can be paid, a capped hourly rate creates an incentive for the attorney to rush a client to plead guilty without regard to the facts of the case, avoid conducting investigation or legal research, and avoid engaging in hearings or a trial. Additionally, because an attorney can earn up to $1,000 for each appointed case, it is in the attorney’s own financial interest to accept as many appointed cases as possible without regard to the attorney’s ability to provide effective assistance of counsel to each individual indigent defendant. In eight of the 10 counties studied closely in this evaluation, some or all of the attorneys appointed to represent indigent felony defendants are paid capped hourly rates that create a conflict of interest between the attorney’s own financial interest and the legal interests of the indigent defendants whom the attorney is appointed to represent.

Where judges choose to pay attorneys a fixed fee, the attorney is responsible for representing an unlimited number of indigent felony defendants in return for a certain amount of money. Because an attorney is paid exactly the same amount no matter how few or how many cases he is appointed to handle, and no matter how few or how many hours he devotes to each case, it is in the attorney’s own financial interest to spend as little time as possible on each defendant’s case.

For example, if an attorney is paid $24,000 a year to represent indigent felony defendants, and if his indigent felony cases take up all of his available working hours, then that attorney cannot earn more than $24,000 in a year. On the other hand, if this attorney devotes only half of his working hours to his indigent clients, then he can spend the other half of his working year on more lucrative paying cases or other employment, thereby greatly increasing his annual income. A fixed fee creates incentives for the attorney to rush a client to plead guilty without regard to the facts of the case, avoid conducting investigation or legal research, and avoid engaging in hearings or a trial. It also incentivizes the attorney to favor the legal interests of his paying clients or other employment over the legal interests of the indigent defendants he is appointed to represent.

The situation is worse yet if the attorney is not reimbursed for overhead and case-related expenses. In our example, this means any resources devoted to an indigent defendant will come out of the attorney’s $24,000 compensation. This creates a disincentive for the attorney to, for example, hire an investigator or experts, accept toll calls from a client in jail, or incur any overhead costs that benefit indigent defendants (such as secretarial time, legal research capability online or through books, or malpractice insurance), without regard to whether the resources are necessary to provide effective representation.

Fixed fees create a conflict of interest between the attorney’s own financial interest and the legal interests of the indigent defendants whom he is appointed to represent and also create a conflict between the legal interests of an attorney’s paying clients and those of his indigent clients. Yet throughout Mississippi, this is the method predominantly used to pay the private attorneys who are appointed to represent indigent felony defendants.

Next steps

Providing the Sixth Amendment right to effective counsel is a state obligation under the due process clause of the Fourteenth Amendment. When a state chooses to place this responsibility on its local governments, then the state must guarantee that the local governments are not only capable of providing adequate representation, but that they are in fact doing so. The State of Mississippi currently has no method of ensuring that its local governments meet the state’s constitutional obligations and, for the most part, has not established any statewide standards for the provision of Sixth Amendment right to counsel services in its trial courts. This systemic lack of accountability pervades not only Mississippi’s indigent defense systems, but its broader criminal justice system as well.

That a Task Force made up of representatives of all three branches of state government, the Mississippi Bar, the Association of Supervisors, Circuit Judges, prosecutors, and defenders commissioned this evaluation is an indication of the level of cooperation with which the work was conducted and of how improvements can be achieved. Throughout the country, there is a growing consensus that the answer to every government problem cannot be to simply increase spending. And, simply increasing funding for indigent defense in Mississippi would do nothing to alleviate the systemic pressures caused by intertwining aspects of law enforcement, prosecution, defense, and adjudication.

One area of discussion needs to be how best to decrease the need for indigent defense attorneys in the first place. The Sixth Amendment right to counsel attaches only to those criminal and delinquency cases where the defendant faces loss of liberty. A concerted effort focused on increasing diversion out of the criminal justice system entirely for appropriate offenses and offenders and on reclassifying appropriate petty and/or regulatory offenses to non-jailable violations are just two methods that should be considered.

Despite the systemic deficiencies documented in the report released today, the 6AC remains optimistic that the Mississippi Public Defender Task Force can devise Mississippi-specific solutions to ensure effective state oversight of indigent defense services, including:

  • A state-level entity to promulgate standards that define how effective indigent defense services are to be provided, including at minimum: attorney qualification standards; attorney performance guidelines; attorney supervision protocols; time sufficiency standards; continuity of services standards whereby the same attorney provides representation from appointment through disposition; client communication protocols; and data collection standards.
  • An entity to train criminal justice system actors about the requirements of the standards, so that they are implemented effectively and efficiently. While the standards must be the same statewide, implementation should allow for variations that accommodate local circumstances.
  • A state-level entity to monitor and enforce compliance with standards throughout the courtrooms of the state.



Tagged with: commissions, compensation & expenses, county systems, evaluations of systems, Mississippi, Sixth Amendment Center

Sours: https://sixthamendment.org/withholding-felony-representation-for-months-at-a-time-in-mississippi/
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