1998 Regular Session
To: Judiciary; Appropriations
By: Senator(s) Turner
Senate Bill 2239
(As Sent to Governor)
AN ACT TO CREATE THE MISSISSIPPI STATEWIDE PUBLIC DEFENDER SYSTEM; TO CREATE AND PRESCRIBE THE APPOINTMENT, DUTIES AND RESPONSIBILITIES OF THE PUBLIC DEFENDER COMMISSION; TO CREATE THE OFFICE OF AND PROVIDE FOR THE APPOINTMENT OF THE EXECUTIVE DIRECTOR; TO PRESCRIBE THE DUTIES, POWERS AND RESPONSIBILITIES OF THE STATE DEFENDER; TO CREATE THE OFFICE OF AND PRESCRIBE THE POWERS AND DUTIES OF THE DISTRICT DEFENDER; TO PRESCRIBE STANDARDS FOR THE DETERMINATION OF INDIGENCE; TO REPEAL SECTIONS 25-32-1 THROUGH 25-32-19, MISSISSIPPI CODE OF 1972, WHICH ESTABLISH THE OFFICE OF PUBLIC DEFENDER, AND SECTION 99-15-15, MISSISSIPPI CODE OF 1972, WHICH DEALS WITH THE APPOINTMENT OF COUNSEL FOR INDIGENTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Title.
This act shall be known as the "Mississippi Statewide Public Defender System Act of 1998."
SECTION 2. Recognition of Interests; Declaration of Purpose.
(1) The State of Mississippi recognizes that, in the administration of its criminal justice system, its people have a number of vital interests which are present and often at tension, one with the other. Among these are:
(a) The prosecutorial interest, including the prompt detection and investigation of offenses and the speedy and vigorous apprehension and prosecution and punishment of offenders;
(b) The victim's interest, including respect for the personal tragedy, the physical, mental and emotional injuries, and the financial and other economic losses suffered by the victims of offenders;
(c) The defense interest, including respect for the presumption of innocence of persons accused of offenses and those whose liberty interests are at risk, guaranteeing to each accused person the effective assistance of competent, loyal and independent counsel, and assuring that each such person is prosecuted and punished only as may be found consistent with due process of law;
(d) The state's justice interest, which includes administration of its criminal justice system, so as to secure the just, fair, speedy, and efficient adjustment and final adjudication of each charge formally made, to protect the innocent, and to punish offenders;
(e) The state's prevention and deterrence interests, which include reducing the number and degree of offenses as much as is reasonably practicable, and holding the social costs of offenses to as low a level as is possible; and
(f) The state's budgetary interest in holding the cost of administration of its criminal justice system to its optimal level, consistent with the fair and efficient provision of the services reasonably necessary to advance the state's other interests in the premises.
(2) This enactment is made to secure the state's defense interest declared in subsection (1)(c) of this section and to secure generally the independence of public defenders in their day-to-day activities from political control and to guarantee the integrity of the relationship between the indigent person who is accused of an offense and his attorney.
(3) This enactment is also made to secure the state's justice interest declared in subsection (1)(f) of this section, its prevention and deterrence interest declared in subsection (1)(e) of this section, and its budgetary interest declared in subsection (1)(c) of this section, and, more particularly, to do all that is reasonably practicable to the end that no otherwise valid conviction or sentence is reversed, vacated or otherwise set aside on grounds of denial of the right to counsel or of the ineffective assistance of counsel.
(4) This enactment is also made to establish a mechanism for the appointment, compensation and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by indigent prisoners whose convictions and sentences have become final for state law purposes, to provide optimal standards of competency for the appointment of such counsel, and otherwise to satisfy all requirements and conditions of the Act of Congress officially designated as Public Law 104-132, Title I, Section 107, April 24, 1996, 110 Stat. 1221, and any amendments that may thereafter be made thereto.
SECTION 3. Construction.
This act, and particularly the parts thereof regarding the powers and duties of the Public Defender Commission, the executive director, and the district defenders, shall be liberally and broadly construed to promote the state's defense, justice, prevention and deterrence, and budgetary interests and to the end that each person accused of an offense shall enjoy the right to counsel and the right to the effective assistance of counsel at all stages of proceedings from and after the time when such person is first taken into custody. All other officers and personnel of the criminal justice system of this state or any political subdivision thereof are enjoined and directed to cooperate with the state defender and the commission, the executive director and the district defenders in the exercise of their powers and discharge of their duties.
SECTION 4. Creation of Public Defender Commission.
(1) There is hereby created the Public Defender Commission of the State of Mississippi (hereinafter the "commission").
(2) The commission shall consist of nine (9) members each of whom shall serve until his successor shall be appointed and qualified. No active prosecutor may serve as a member of the commission. The members of the commission shall be selected as follows:
(a) The Governor shall appoint one (1) member whose initial term shall expire on December 31, 2001.
(b) The Lieutenant Governor shall appoint one (1) member whose initial term shall expire on December 31, 2001.
(c) The Speaker of the House of Representatives shall appoint one (1) member whose initial term shall expire on December 31, 2001.
(d) The Chief Justice of the Supreme Court of Mississippi shall appoint one (1) member whose initial term shall expire on December 31, 2000.
(e) The Conference of Circuit Judges of the State of Mississippi shall appoint one (1) member whose initial term shall expire on December 31, 2000.
(f) The Conference of County Court Judges of the State of Mississippi shall appoint one (1) member whose initial term shall expire on December 31, 2000.
(g) The President of The Mississippi Bar shall appoint one (1) member whose initial term shall expire on December 31, 1999.
(h) The President of the Magnolia Bar shall appoint one (1) member whose initial term shall expire on December 31, 1999.
(i) The President of the Mississippi Public Defenders Association shall appoint one (1) member whose initial term shall expire on December 31, 1999.
(j) The Chairman of the Senate Judiciary Committee, or his designee, and the Chairman of the House of Representatives Judiciary B Committee, or his designee, shall serve as legislative liaisons and nonvoting members.
(3) Such selections and appointments shall be made by the respective appointing authorities not later than January 1, 1999. Vacancies on the commission shall be filled by the respective selecting and appointing authorities. In the event that any selection or appointment is not timely made, the Chief Justice of the Supreme Court of the State of Mississippi shall make such selection or appointment, and any commission member so appointed shall serve the remaining unexpired portion of the term for which he has been appointed.
(4) After the initial terms, all terms shall be three (3) years and shall commence on January 1 following the expiration of each prior term.
SECTION 5. The Powers and Duties of the Commission: Administration and Other Related Duties.
The commission shall have the following powers and duties:
(a) To appoint an executive director who shall be licensed to practice law in the State of Mississippi and shall have been so licensed for at least four (4) years prior to the appointment, and who shall be knowledgeable and experienced in the field of criminal law, and to charge the executive director with the performance of all reasonable and appropriate administrative and related duties;
(b) In its discretion, to delegate to the executive director such of the powers and duties, in whole or in part, as are provided in this act to be performed by the commission;
(c) To implement and ensure the enjoyment of the right to counsel and the right to the effective assistance of counsel secured to persons by the Constitution of the United States of America and by the Constitution of the State of Mississippi;
(d) To establish, implement and enforce policies and standards for a comprehensive and effective public defender system throughout the State of Mississippi, including, but not limited to, standards for determining who qualifies as an indigent person;
(e) To establish, implement and enforce policies and standards for the appointment, compensation and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by indigent prisoners whose convictions and sentences have become final for state law purposes, to provide optimal standards of competency for the appointment of such counsel, and otherwise to satisfy all requirements and conditions of the Act of Congress officially designated as Public Law 104-132, Title I, Section 107, April 24, 1996, 110 Stat. 1221, and any amendments that may thereafter be made thereto.
(f) To establish the standards for determining which counties require full-time district defender offices, which, if any, require and can best be served by part-time contract district defenders, and which, if any, require and can effectively be served by a system of court-appointment of private practicing lawyers, and to review the standards so established and the needs of each county so assessed from time to time as may be appropriate, but not less often than every fifth year beginning with the effective date of this act;
(g) To maintain within its office a conflicts division and an appellate division and to appoint a qualified person to direct and perform the functions of each;
(h) To establish policies and standards for the organization and operation of its office and of the district defenders' offices throughout the state, including, but not limited to:
(i) Distribution to and among the several district defender offices of the financial resources as are made available for its office and providing, as well, for a reasonable allocation of such resources to the commission and its offices and staff;
(ii) Establishment of optimal qualifications for all attorneys particularly within or employed by the Statewide Public Defender System, whether as full-time staff attorneys, assistant state defenders, assistant district defenders, part-time contract defenders or specially appointed defenders;
(iii) Establishment of optimal standards of experience for paralegals, investigators and other personnel assigned to such offices and to particular cases;
(iv) Establishment of optimal standards for staffing, caseloads and support personnel and facilities for each district defender's office; and
(v) Establishment of employee personnel policies including compensation, salary and benefit schedules for the office of the state defender and of each district defender;
(i) To appoint a district defender for each circuit court district;
(j) To evaluate the performance of each district defender, assistant district defender, part-time attorney, contract attorney, private attorney assigned to represent indigent persons, and all other personnel of the public defender system, and to have and provide for quality control, personnel evaluation and review, incentives and rewards for meritorious performance, and to have and exercise such powers as may be reasonably necessary to enhance the quality and quantity of services delivered and to address and correct deficiencies;
(k) To reassign cases from one district defender to another district defender in another circuit court district on a volume basis or an individual basis for the purpose of avoiding conflicts, adjusting or more efficiently distributing caseloads, securing expertise needed for the defense of particular cases, and otherwise implementing the purposes and provisions of this act;
(l) To enter into contracts with attorneys who will thereafter serve as part-time assistant district defenders on such terms and conditions as may be appropriate and agreed upon;
(m) To maintain for each county and for each circuit court district a current list of private attorneys who are competent in the defense of criminal charges and are willing to accept appointments for individual representations, cases or other assignments, including the defense of capital cases, and who meet any other qualifications established by his office, and to these ends:
(i) To notify once a year all licensed attorneys residing in Mississippi by publication or otherwise that a list is being prepared and maintained of attorneys willing to represent indigent persons;
(ii) To afford attorneys notified under this section a reasonable time to submit the information requested by the commission;
(iii) To prepare, certify and update annually a list of such attorneys for each county and for each circuit court district;
(iv) To prepare, certify and update annually a separate list of attorneys competent and willing to accept appointment in capital cases for each county and for each circuit court district; and
(v) To appoint attorneys from this list for individual representations, cases or other assignments and to compensate any such attorney and, out of funds available to his office, to reimburse expenses as provided in Section 99-15-17, Mississippi Code of 1972;
(n) To commence such civil actions as may be reasonably necessary to assure the efficient and effective functioning of the Statewide Public Defender System and to enjoin or otherwise remedy or resolve attempts to interfere therewith;
(o) To prepare and approve the annual budget for the operation of the Statewide Public Defender System and for each district defender's office throughout the state, and to administer and oversee the implementation of each such budget;
(p) To compile and disseminate statutes, court opinions, legal research, articles and other information to district defenders and private attorneys participating in the Statewide Public Defender System;
(q) To maintain a law library or libraries and a brief bank for use in connection with trials and appeals at such place or places as may be reasonably practicable;
(r) To convene conferences, continuing legal education programs and training seminars or planning or strategy meetings related to the Statewide Public Defender System, and to attend or send any persons to any such conferences, programs, seminars or meetings both within and without the State of Mississippi;
(s) To accept, and to authorize a district defender to accept, monies, gifts, grants, or services from any public or private source, for the purpose of funding, operating and executing the duties of his or its office;
(t) To enter into contracts with individuals, educational institutions, nonprofit associations, or state or federal agencies, including contracts for the provision of legal services related to the defense of indigent persons;
(u) To cooperate with any individual or public agency, whether state or federal, or with any law school, public or private, or with any institution of higher learning of the State of Mississippi, to obtain by gift, grant or otherwise any financial, professional, investigatory, training, educational or research or other assistance; provided, however, that any grants or any financial assistance whatever for the purpose herein set out shall be paid over to the commission and administered by the commission consistent with the provisions of this act;
(v) To receive, allocate and disburse funds appropriated for the operation of the Statewide Public Defender System pursuant to guidelines established by its office, in cooperation with and after consultation with the Administrative Office of Courts, and to reallocate available resources within the Statewide Public Defender System as may be necessary to carry out and implement more effectively the purposes and policies of this act;
(w) To approve the purchase, lease, rental and use of office space, equipment, or personnel and the sharing of same between and among district defenders and between and among the counties within the several circuit court districts;
(x) To provide to the Administrative Office of Courts and the Mississippi Judicial Advisory Study Committee any and all information, reports, statistics and other forms of assistance as may from time to time be requested or otherwise required by law;
(y) To present to the Governor and to the Legislature within ninety (90) days after the end of the fiscal year an annual report on the operation of the Statewide Public Defender System, and recommendations for improvement;
(z) To appear before and provide assistance to, and make recommendations to the Legislature and other relevant bodies regarding matters related to the public defender system, including, but not limited to, recommendations regarding the phasing in of the statewide public defender system, the transition from the current county based system of indigent defense, and regarding the appropriateness and practicability of the repealer dates provided herein for the statutes repealed by this act;
(aa) To maintain records of the operation of the Statewide Public Defender System, including, but not limited to, the following:
(i) Detailed descriptions of the organization of each district defender's office;
(ii) Caseload of each district defender's office, broken down by counties and including cases assigned to private attorneys;
(iii) Budgets and actual expenditures of the office of the commission and each district defender's office;
(iv) Reassignment of cases from one district defender to another district defender in another circuit court district;
(v) Use of part-time contract attorneys; and
(vi) Assignment of cases to private attorneys;
(bb) To employ and set the compensation of the executive director, his assistants and other employees as are necessary to enable the commission to exercise its powers and perform its duties;
(cc) To purchase professional liability insurance to cover and protect all persons within the Statewide Public Defender System;
(dd) To educate the public regarding the state's defense interest and regarding the history, need, importance and legal dimensions of the right to counsel;
(ee) To cooperate with, share information with and receive assistance from the American Bar Association and, particularly, its Standing Committee on Legal Aid and Indigent Defendants, The Mississippi Bar, and other associations of attorneys;
(ff) To perform any and all functions necessary for the efficient operation of such an office to the end that adequate legal defense for indigent persons accused of offenses shall be provided at every stage of their cases, and in post-conviction proceedings with regard thereto;
(gg) To adopt and promulgate reasonable and necessary rules and regulations, formally or informally, as may be appropriate, to administer the Statewide Public Defender System, to perform its duties and powers hereunder, and to implement the provisions of this act; and to propose forms for the use of the courts, the commissions and other persons with powers and duties hereunder;
(hh) To have and exercise such implied duties and powers as may reasonably be necessary to assure the efficient and effective functioning of the Statewide Public Defender System;
(ii) To delegate to the district defenders in whole or in part the exercise and performance of powers and duties set forth in this section where and to the extent that the commission determines such powers and duties are suitable for exercise and performance at the district level;
(jj) In the exercise and performance of any and all powers and duties provided by this act, to cooperate fully with, to seek the advice, assistance and support of, the Administrative Office of Courts and the Mississippi Judicial Advisory Study Committee;
(kk) In the exercise and performance of any and all powers and duties provided by this act, to establish priorities for the provision of counsel for indigent persons by reference to the stage of proceedings against such persons and the nature and importance of the charges against such persons, and to do so by reference to the availability of financial, professional and other resources, and to adjust such priorities from time to time as may be appropriate; and
(ll) In cooperation with and with the assistance of the Administrative Office of Courts, to develop policies and procedures for the transition from the current county-based system of indigent defense to the Statewide Public Defender System authorized and contemplated by this act, including a timetable for phasing in and implementing the provisions of this act and for staffing and funding the offices created and provided herein, and to implement same.
SECTION 6. Powers and Duties of the Commission in Representation of Indigent Persons.
The commission shall have the following powers and duties with respect to the representation of indigent persons accused of felony offenses and to appear in and before courts and other tribunals in all proceedings; provided, however, that the fact that the commission, or, if the commission so provides, the executive director, may have authority to appear in and before such courts or tribunals in such proceedings shall not be construed to require any such appearance unless a court of competent jurisdiction by order appoints the executive director to so appear or unless the executive director agrees with any person eligible for representation under this act to so appear:
(a) To implement and ensure the enjoyment of the right to counsel and the right to the effective assistance of counsel secured to persons by the Constitution of the United States of America and by the Constitution of the State of Mississippi;
(b) To investigate charges against any indigent person accused of a felony and all facts surrounding the same, and to appear at all stages of proceedings from and after the time when such accused person is first taken into custody, and to appear at all pre-trial proceedings with regard to such indigent accused, and in any and all trial and appellate courts on behalf of the indigent person in all cases, to have free access to the accused who shall have compulsory process to compel the attendance of witnesses in his favor, to engage the services of expert witnesses and consultants on such terms as may be reasonable and appropriate;
(c) To assist and counsel the several district defenders, as from time to time may be necessary or appropriate, regarding the handling of matters and issues that may be unusually difficult or complex or that may likely affect or become a part of any appeal; the commission may provide the same level of assistance to district defenders as the Attorney General of Mississippi is authorized to provide to the district attorneys in the prosecution of offenders;
(d) To appear in or initiate habeas corpus proceedings and any and all matters or proceedings related to bail bonds and other bonds in the case of an indigent person accused of a felony;
(e) To appear in any forfeiture, restitution or contempt proceedings;
(f) To appear in habeas corpus, coram nobis and other post-conviction or sentence review proceedings regarding indigent persons accused or convicted of felonies in any state or federal trial or appellate court; provided, however, that in the event of any such appearance in the courts of a jurisdiction, state or federal, other than the State of Mississippi, the authority is to do all that is necessary or practicable (i) to satisfy all requirements and conditions of the Act of Congress officially designated as Public Law 104-132, Title I, Section 107, April 24, 1996, 110 Stat. 1221, and any amendments that may thereafter be made thereto; and (ii) to assure that full advantage is taken of all funds available under the Act of Congress known as the Criminal Justice Act, as amended, or any other program for compensation of attorneys for indigents, including accepting appointments of the court or other appointing authority within any such jurisdiction as counsel for an indigent;
(g) To appear in extradition proceedings both within and without the State of Mississippi;
(h) To appear in and before such other and additional courts, tribunals, boards or agencies as may be necessary to represent and protect the interests of indigent persons accused of felony offenses;
(i) To commence such civil actions as may be reasonably necessary to assure the efficient and effective functioning of the Statewide Public Defender System and to enjoin or otherwise remedy or resolve attempts to interfere therewith; and
(j) Without limitation of the foregoing, to do any and all things and perform every character of legal service on behalf of an indigent person that a member of The Mississippi Bar would have the duty and authority to do if privately engaged to represent a person accused of an offense or whose liberty interests are at risk, including the full discharge of the attorney's duty of care and duty of loyalty to such indigent person.
SECTION 7. Creation of Offices of District Public Defenders.
(1) There shall be a district public defender for each circuit court district in the State of Mississippi (herein "the district defender").
(2) The commission shall appoint each district defender who shall have been a member in good standing of The Mississippi Bar for three (3) consecutive years next preceding the appointment. The district defender shall serve for a term of four (4) years and such term shall coincide with the term of the district attorney. The district defender shall be eligible for reappointment.
(3) Each district defender shall be provided with a staff of assistant district defenders, investigators, secretarial assistance, office space, and all reasonable facilities and expenses for the operation of his office according to the policies, standards and directives of the commission substantially equal to that provided to the district attorney of the circuit court district in which the district defender serves.
(4) The commission may discharge the district defender for inefficiency in his office, ineffectiveness in the performance of his duties, or other cause.
SECTION 8. Powers and Duties of District Defender.
(1) Each district defender shall advise, represent and defend indigent persons accused of felony offenses or whose liberty interests are at risk at all stages of proceedings in any court in the counties of the circuit court district and as may be designated by the commission.
(2) Each district defender shall perform all duties assigned to him by the commission.
(3) Each district defender shall appoint and employ all personnel serving within the office of the district defender pursuant to guidelines published by the commission.
(4) To the extent he may do so consistent with the provisions of Sections 5 and 6 of this act, each district defender shall have and may exercise within the district which he serves each and every duty and power given to the commission and/or the executive director by Sections 5 and 6 of this act; moreover, each district defender shall assist and cooperate with the commission and/or the executive director in its or his exercise and discharge of the duties and powers set forth in Sections 5 and 6 of this act.
SECTION 9. Conflicts of Interest.
(1) The duty of vigilance, investigation, assessment and judgment regarding conflicts of interest rests upon each attorney participating in the Statewide Public Defender System, with the ultimate responsibility being shared equally and independently by the court and by the commission. If either the commission or the court determines that a conflict of interest exists between an indigent person and the district defender, the commission shall reassign the representation of any such person to another attorney within or without the Statewide Public Defender System with respect to whom no conflict exists.
(2) Unless all affected persons give their informed consent to representation under the limitations and conditions provided in subsection (3) of this section, a district defender may not represent an indigent person if the representation would constitute a conflict of interest. A conflict of interest exists if there is a substantial risk that the district defender's representation of the indigent person would be materially and adversely affected by the district defender's duties to another person.
(3) (a) A defender may represent an indigent person notwithstanding a conflict of interest prohibited by subsection (2) of this section if each affected person gives informed consent to the defender's representation. Informed consent requires that the person have reasonably adequate information about the risks and advantages of such representation to that person;
(b) Notwithstanding each affected person's consent, a defender may not represent an indigent person if:
(i) The defender represents an opposing party in the same proceeding;
(ii) One or more of the persons is legally incapable of giving consent; or
(iii) Special circumstances render it unlikely that the defender will be able to provide adequate representation to one or more of the persons.
(4) (a) If a conflict of interest is determined by the commission or by the court to exist between the district defender and the indigent person or if for any other reason the commission or the court determines that the district defender cannot or should not represent the indigent person, the commission shall provide that the indigent person be represented by a district defender from another area or by a private attorney appointed for that purpose;
(b) Subject to caseload restrictions and conflict of interest considerations, the court may notify the commission to represent the indigent or provide representation for the indigent.
(5) In the event of conflicts, the commission may appoint a private attorney who is competent in the defense of criminal charges and/or is included in a list of volunteers who have agreed to accept such appointments as provided in Section 5 of this act who shall be compensated and be reimbursed for expenses as provided in Section 99-15-17, Mississippi Code of 1972.
(6) The commission shall attempt to equalize the appointments for all attorneys on the list, but this act does not deprive the commission of the power to appoint particularly qualified and willing attorneys in unusual or complex matters.
(7) If the court finds that an indigent person is in a case of such a nature that he cannot be properly represented by the commission or district defender alone, the court may appoint additional counsel to assist the defender. In such cases, the attorney so appointed shall be compensated and be reimbursed as provided in Section 99-15-17, Mississippi Code of 1972.
SECTION 10. Prohibited Acts and Practices.
(1) The members of the commission, the executive director, members of the commission staff, each district defender, and each deputy district public defender shall not:
(a) Receive any funds, services or other thing of monetary value, directly or indirectly, for the representation of an indigent person pursuant to court appointment, except the compensation authorized by law; or
(b) Refer any person, indigent or otherwise, who contacts the district defender to any other attorney, except pursuant to guidelines established by the commission.
(2) Nothing in this section shall be construed to bar a prosecution or other disciplinary action against any attorney within the Statewide Public Defender System who commits a violation of law or of the Model Rules of Professional Conduct, or one or more provisions thereof, as they exist and are enforced in the State of Mississippi.
(3) Neither the executive director, nor a district defender, nor any other full-time assistant or employee of the commission or any district defender shall engage nor be associated with any person in the private practice of law. Part-time assistant defenders, contract assistant defenders and persons on volunteer appointment lists may engage in the private practice of law as long as such practice does not relate to the prosecution of criminal matters.
(4) Subject to the proper performance of his duties under this act, nothing herein shall be construed to prohibit the members of the commission, the executive director, the commission staff, a district defender or any person serving with the Statewide Public Defender System from speaking, writing, lecturing, teaching or participating in other activities concerning the law, the legal system and the administration of justice and accepting compensation therefor and reimbursement of expenses in connection therewith.
SECTION 11. Conflicts Division Created.
(1) There is hereby created within the office of the commission a conflicts division which shall function under the direction and supervision of the commission.
(2) The conflicts division shall develop policies and procedures for identifying conflicts of interest at the earliest practicable moment and for remedying such conflicts. The conflicts division shall also monitor and assess all questions regarding conflicts of interest as provided and contemplated by Section 9 of this act.
SECTION 12. Appellate Division Created.
(1) There is hereby created within the office of the commission an appellate division which shall function under the direction and supervision of the commission.
(2) The appellate division may perfect and prosecute direct appeals, petitions for rehearing, petitions for writs of certiorari, and petitions for post-conviction relief, and perform such other duties as the commission shall direct.
(3) The appellate division may provide assistance and counsel to a district defender regarding the handling of matters and issues that may be unusually difficult or complex or that may likely affect or become a part of any appeal.
SECTION 13. Coordination Authorized Between Conflicts and
The commission is authorized to organize the conflicts and appellate divisions in such a way as it deems appropriate, to provide for the cooperation of each division with the other and, within its discretion, to provide that one or more persons within each division also serve within the other division.
SECTION 14. Initial Appearance.
Every arrested person shall be taken before a judicial officer without unnecessary delay. Upon the arrested person's initial appearance, the judicial officer shall ascertain his true name and address, and amend the formal charge if necessary to reflect this information. The arrested person shall be informed of the charges against him and provided with a copy of the complaint. The judicial officer shall also advise the arrested person of the following:
(a) That he is not required to speak and that any statements he makes may be used against him;
(b) If he is unrepresented, that he has the right to assistance of counsel, and that if he is unable to afford counsel, an attorney will be appointed to represent him; and
(c) That he has the right to communicate with counsel, family or friends, and that reasonable means will be provided to enable him to do so.
SECTION 15. Determination of Indigence.
(1) An inquiry to determine financial eligibility of an accused for the appointment of counsel shall be made whenever possible prior to the initial appearance and by such persons as the court may direct.
(2) At or before the initial appearance, or whenever any person shall be taken into custody upon suspicion of a felony, then the arresting authority and, thereafter, the presiding judge at the initial appearance, shall afford such person an opportunity to sign an affidavit stating that such person is an indigent and unable to employ counsel. Upon the signing of such affidavit by such person, the commission and a district defender shall represent said person and shall have authority to act for said person, unless the right to counsel be waived by such person. In addition thereto, the alleged indigent person shall give a statement, under oath, listing all assets available to the indigent for the payment of attorney's fees and legal expenses, including the ownership of any property, real or personal, and setting out therein the alleged indigent's employment status, number of dependents, income from any source, the ability of his parents or spouse to provide attorney's fees and legal expenses, and any other information which may be prescribed by the commission and which might prove or disprove a finding of indigence. The affidavit and statement shall be a part of the record in the case and shall be subject to review by the appropriate court. Based on review of the affidavit, statement or other appropriate evidence, if the appropriate court finds that the accused is not indigent, said court shall terminate the representation of the accused by the commission and district defender. The ability to pay any part of the cost of adequate representation at any time while the charges are pending against an accused shall not preclude the appointment of counsel for the defendant.
(3) The court may require an accused, to the extent of his ability, to compensate or reimburse the commission for all or part of the reasonable value of the representation he has received, plus any sums reasonably and necessarily expended in the course and scope of such representation. In making any such order, the court shall consider and give priority to the victim's rights to restitution, compensation or damages.
SECTION 16. Appointment of Counsel for Indigent Person.
(1) If the accused does not already have an attorney, one shall be appointed no later than the time of initial appearance, and, once appointed, counsel shall continue to represent the accused on all matters arising out of the transaction or occurrence, or series of transactions or occurrences, as may have given rise to the original charge or charges, until permitted to withdraw by proper order of the court.
(2) In all cases in which the person who is the subject of felony proceedings gives the statement provided by Section 15(2) of this act, and is eligible for the appointment of counsel and so requests, the court by order shall appoint the commission to represent such person. Any such order for appointment shall also be deemed the appointment of the district defender of the district in which the person is being prosecuted. The clerk of the court entering such an order for appointment shall cause copies of same to be delivered forthwith to the commission and the office of the district defender, and shall at once communicate the contents of the order to such other person or attorney in the county where the case is docketed as the district defender may have designated to receive such orders, all to the end that the person or attorney so designated shall learn of the order as soon as possible after it has been entered.
(3) At the earliest practicable moment, the court, the commission, and the district defender shall inquire whether there may be a possible conflict of interest and take such action as may be required by this act or may be otherwise appropriate.
SECTION 17. Salaries and Expenses.
(1) (a) The annual salary of each district defender shall be the same as the annual salary paid the district attorney within the circuit court district within which the district defender serves.
(b) The commission shall establish the salaries of all other personnel within the Statewide Public Defender System and shall approve all provisions of all contracts entered into with part-time attorneys who serve as assistant district defenders. Private practicing attorneys appointed to represent persons shall be compensated and have their expenses reimbursed as provided in Section 99-15-17, Mississippi Code of 1972.
(c) Members of the commission shall receive a per diem as provided in Section 25-3-69, Mississippi Code of 1972, for actual attendance upon meetings of the commission, together with reimbursement for traveling and subsistence expenses incurred as provided in Section 25-3-41, Mississippi Code of 1972, except that members of the commission who are members of the Legislature shall not receive per diem for attendance while the Legislature is in session and no member whose regular compensation is payable by the state or any political subdivision of the state shall receive per diem for attendance upon meetings of the commission.
(2) The compensation, administrative staff, office space and secretarial assistance, travel and other expense allowances of the commission shall not be reduced or diminished but may be increased during his term of office.
SECTION 18. Funding: Powers and Duties Subject to
Availability of Funding and Other Resources.
(1) The Statewide Public Defender System created by this act in all of its units and features shall be funded by appropriations made by the Legislature to the commission and by funds from any other source not prohibited by law.
(2) The board of supervisors of any county may supplement the resources available for financing the defense of indigent persons within that county at such times and in such sums as it determines to be reasonable and necessary, including, but not limited to, such sums as may be necessary to compensate attorneys and provide for reasonable and necessary legal expenses in cases where this act directs that such fees and expenses be as provided in Section 99-15-17, Mississippi Code of 1972. Any such sums shall be delivered to the commission for administration, although disbursement shall be restricted to funding the defense of indigent persons in that county.
(3) The commission may accept fees and reimbursement of expenses if an attorney employed by or participating with this system is appointed as counsel for an indigent by a court of a jurisdiction, state or federal, other than the State of Mississippi.
(4) All duties imposed upon the commission, the district defenders and all other personnel of the Statewide Public Defender System, and all powers conferred upon such persons, are made subject to the availability of financial and other resources.
SECTION 19. Sections 25-32-1, 25-32-3, 25-32-5, 25-32-7, 25-32-9, 25-32-11, 25-32-13, 25-32-15, 25-32-17 and 25-32-19, Mississippi Code of 1972, which establish and govern the Office of Public Defender, are repealed from and after July 1, 1999.
SECTION 20. Section 99-15-15, Mississippi Code of 1972, which deals with the appointment of counsel for indigents, is repealed from and after July 1, 1999.
SECTION 21. (1) All new programs authorized under this Senate Bill No. 2239 shall be subject to the availability of funds specifically appropriated therefor by the Legislature during the 1998 Regular Session or any subsequent session. This act shall be codified but no amendment to a code section or repeal of a code section enacted by this Senate Bill No. 2239 shall take effect until the Legislature has funded any new programs authorized hereunder by line item appropriation, said line item appropriation to be certified by the Legislative Budget Office to the Secretary of State.
(2) Notwithstanding any other provision of this act, the only actions authorized under this act to be funded shall be the hiring of the executive director, the hiring of a secretary for the executive director, expenses necessary for the operation of the commission and the executive director's office and expenses incidental thereto, and providing per diem for the members of the commission unless other legal funding as authorized under this act other than by appropriation of the Legislature is available. The commission shall assess the feasibility and cost of the implementation of this act and report its findings to the Legislature not later than January 1, 1999. This subsection (2) shall stand repealed on July 1, 1999.
SECTION 22. This act shall take effect and be in force from and after July 1, 1998.