House Bill NO. 1363

By Senator(s) Committee

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

(2) This act shall be read and applied in harmony with the Mississippi Statewide Public Defender Act of 1998 (Section 25-32-31 et seq., Mississippi Code of 1972).

SECTION 2. For the purposes of this act, the following words shall have the meanings ascribed to them, unless the context clearly requires otherwise:

(a) "Office" means the Mississippi Office of Capital Post-Conviction Counsel created by this act within the Appellate Division of the Mississippi Public Defender Commission as provided by Section 25-32-53(1), Mississippi Code of 1972.

(b) "Commission" means the Mississippi Public Defender Commission created by Section 25-32-37, Mississippi Code of 1972.

(c) "Executive director" means the Executive Director of the Mississippi Public Defender Commission appointed under Section 25-32-39(a), Mississippi Code of 1972.

SECTION 3. There is created the Mississippi Office of Capital Post-Conviction Counsel within the Appellate Division of the Mississippi Public Defender Commission. The personnel of the office shall include a number of attorneys, investigators and other support personnel as determined by the commission, consistent with qualifications and standards adopted by the commission and subject to available funding. The commission may designate one (1) of the attorneys to act as director of the office.

SECTION 4. In order to be qualified for appointment as an attorney with the office, an attorney must meet the following qualifications:

(a) Licensed to practice law in the State of Mississippi and a member in good standing of The Mississippi Bar, or is making diligent efforts to become admitted to the practice of law in this state;

(b) Such other qualifications and standards as are established by the commission, provided that the commission shall use all reasonable measures and take all reasonable steps to assure that the standards will qualify under the special rules relating to federal habeas corpus designated as Public Law 104-132, Title I, Section 107, April 24, 1996, 110 Stat. 1221, as codified in Title 28, United States Code, Section 2261.

SECTION 5. The primary responsibility of attorneys employed in the office shall be the representation of indigent capital defendants in state post-conviction proceedings, but they shall also cooperate with and advise attorneys working in the appellate division. Attorneys shall also advise and counsel with attorneys representing capital defendants at the pre-trial, trial and appellate stages, to the end that effective representation is there provided and errors that may result in the reversal of convictions and sentences may be minimized or avoided.

SECTION 6. The commission shall establish the salaries for employees of the office consistent with Section 25-32-39(h), Mississippi Code of 1972, subject to available funding.

SECTION 7. The office shall be open and accessible by the public during reasonable business hours subject to the direction of the commission.

SECTION 8. The commission is hereby authorized to obtain office space to accommodate the office in such locations as may be reasonable and convenient and to accommodate the staff, and to purchase such necessary office supplies and equipment as may be needed for the proper administration of the offices within the funds appropriated for such purpose. The office may be housed and otherwise associated with the appellate division.

SECTION 9. The executive 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 the executive director determines that a capital defendant cannot be represented by the office without conflict of interest, the commission, upon application therefor by the executive director, shall appoint one or more attorneys certified by the commission to represent the defendant. 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. If sufficient funds are not otherwise available to the commission, counsel so appointed shall be compensated by the county in whose circuit court the defendant was originally convicted and sentenced.

SECTION 11. The attorneys appointed by the office who serve on a full-time basis are prohibited from engaging in the private practice of law.

SECTION 12. The performance of attorneys appointed to the office shall be evaluated from time to time consistent with Section 25-32-39(j), Mississippi Code of 1972. The commission may remove any attorney appointed to the office for misconduct, incompetency, 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 its passage.

AN ACT TO CREATE THE MISSISSIPPI CAPITAL POST-CONVICTION COUNSEL ACT; TO ENACT DEFINITIONS; 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 ACQUISITION OF OFFICE SPACE, SUPPLIES AND EQUIPMENT; TO REQUIRE MAINTENANCE OF 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 FULL TIME SHALL NOT OTHERWISE PRACTICE LAW; TO PROVIDE FOR THE REMOVAL OF ATTORNEYS; AND FOR RELATED PURPOSES.