MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary A; Appropriations

By: Representative Capps

AN ACT TO CREATE THE MISSISSIPPI CAPITAL POST-CONVICTION COUNSEL ACT; TO CREATE THE MISSISSIPPI OFFICE OF CAPITAL POST-CONVICTION COUNSEL AND SPECIFY ITS PERSONNEL; TO PROVIDE QUALIFICATIONS FOR ATTORNEYS IN THE OFFICE; TO PRESCRIBE THE DUTIES OF ATTORNEYS IN THE OFFICE; TO PROVIDE FOR COMPENSATION; TO SPECIFY OFFICE HOURS; TO AUTHORIZE THE DIRECTOR TO ACQUIRE OFFICE SPACE, SUPPLIES AND EQUIPMENT; TO REQUIRE THE DIRECTOR TO MAINTAIN A DOCKET; TO AUTHORIZE THE APPOINTMENT OF ATTORNEYS IN SITUATIONS WHERE CONFLICTS ARISE; TO CREATE THE SPECIAL CAPITAL POST-CONVICTION COUNSEL FUND; TO PROVIDE THAT ATTORNEYS APPOINTED TO THE OFFICE SHALL BE FULL-TIME; TO PROVIDE FOR THE REMOVAL OF ATTORNEYS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act may be cited as the "Mississippi Capital Post-Conviction Counsel Act."

SECTION 2. There is created the Mississippi Office of Capital Post-Conviction Counsel. This office shall consist of two (2) attorneys, one (1) investigator and one (1) secretary. The attorneys shall be appointed by the Mississippi Public Defender Commission from a list of qualified candidates furnished by the Mississippi State Bar Association. The commission shall designate one (1) of the attorneys to act as the director of the office.

SECTION 3. In order to be qualified for appointment as an attorney with the Mississippi Office of Post-Conviction Counsel the attorney must meet the following qualifications:

(a) Must be licensed to practice law in the State of Mississippi and a member in good standing of the Mississippi State Bar;

(b) Must have been engaged in the active practice of law for four (4) years in the Mississippi state courts or equivalent experience;

(c) Verified attendance at three (3) approved appellate training programs, including one (1) program concerning the capital litigation within the two (2) years prior to appointment;

(d) Must have worked as lead counsel on at least one (1), or worked as co-counsel on at least two (2), post-conviction proceedings before the Mississippi Supreme Court, with at least one (1) of these proceedings involving a capital murder conviction; or worked as lead counsel on at least one (1), or worked as co-counsel on at least two (2), direct appeal proceedings before the Mississippi Supreme Court, involving a capital murder conviction;

(e) Submission of two (2) appellate or post-conviction briefs written by the attorney, one (1) of which involves a capital murder conviction, for review by the Mississippi State Bar committee that makes the recommendations to the Chief Justice.

SECTION 4. The attorneys appointed to serve in the Office of Capital Post-Conviction Counsel shall devote their entire time to the representation of indigent capital defendants in state post-conviction proceedings. No person appointed as an attorney with the Capital Post-Conviction Counsel shall in any manner participate in the trial or direct appeal of any capital case in this state. Such participation shall be grounds for immediate termination from employment with the Capital Post-Conviction Counsel's office.

SECTION 5. The director appointed under this act shall be compensated at no more than the amount set by statute for the compensation of an Assistant Attorney General. The other attorney shall be compensated at no more than ninety percent (90%) of the salary of the director.

SECTION 6. The Director of the Office of Post-Conviction Counsel is authorized and empowered to employ one (1) investigator and one (1) secretary, and to fix their salaries in such amount as he may deem proper within the funds appropriated for such purpose.

SECTION 7. The Director of the Office of Post-Conviction Counsel shall keep the office open Monday through Friday for not less than eight (8) hours each day. The director and his assistant shall be there for business during said hours with the exception of such time when the director or his assistants may be required to conduct the business of the office at other locations.

SECTION 8. The director is hereby authorized to rent, on an annual or month-to-month basis on such terms as he may think proper, such office space as is necessary in the City of Jackson to accommodate the staff, and to purchase such necessary office supplies and equipment as may be needed for the proper administration of said offices within the funds appropriated for such purpose.

SECTION 9. The director shall keep a docket of all causes in which he is required to appear, which must at all reasonable times be open to the inspection of the public and must show the county, district and court in which the causes have been instituted.

SECTION 10. If, at any time during the representation of two (2) or more capital defendants, the Director of the Office of Capital Post-Conviction Counsel determines that the interest of those persons are so adverse or hostile that they cannot all be counseled by the Director of the Office of Capital Post-Conviction Counsel or his staff without conflict of interest, the Mississippi Public Defender Commission shall upon application therefor by the Director of the Office of Capital Post-Conviction Counsel appoint one or more members of The Mississippi Bar to represent one or more of such persons from a list of qualified persons. Appointed counsel shall be paid from funds appropriated to a Special Capital Post-Conviction Counsel Fund for this purpose, which is hereby created. Monies in this fund shall not lapse into the General Fund at the end of a fiscal year but shall remain in the fund and any interest accruing to such fund shall remain in the fund.

SECTION 11. The attorneys appointed to the Office of Capital Post-Conviction Counsel shall serve on a full-time basis and are prohibited from engaging in the private practice of law.

SECTION 12. The commission may remove any attorney appointed to the Office of Capital Post-Conviction Counsel for misconduct, incompetency, immorality, unprofessional conduct, failure to perform duties of the office, neglect of duty or for other sufficient cause.

SECTION 13. This act shall take effect and be in force from and after July 1, 1999.