MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary A; Appropriations

By: Representatives Watson, Fillingane

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 AMEND SECTION 99-19-105, MISSISSIPPI CODE OF 1972, TO REVISE THE SETTING OF THE DATE OF EXECUTION OF DEATH SENTENCE; TO AMEND SECTION 99-39-5, MISSISSIPPI CODE OF 1972, TO REVISE THE STATUTE OF LIMITATIONS FOR POST-CONVICTION RELIEF IN CAPITAL CASES; TO AMEND SECTION 99-39-23, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE APPOINTMENT OF POST-CONVICTION COUNSEL IN CAPITAL CASES; TO AMEND SECTION 99-39-27, MISSISSIPPI CODE OF 1972, TO EXCLUDE POST-CONVICTION RELIEF IN CAPITAL CASES; TO CREATE SECTION 99-15-18, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR COMPENSATION OF COUNSEL IN POST-CONVICTION RELIEF CASES INVOLVING THE DEATH PENALTY; TO CREATE SECTION 99-39-28, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE SUPREME COURT SHALL PROVIDE RULES FOR POST-CONVICTION PROCEEDINGS IN CAPITAL CASES; TO PROVIDE FOR THE SETTING OF THE DATE FOR EXECUTION OF DEATH SENTENCES; TO REPEAL SECTION 99-19-49, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE SETTING OF A DAY FOR THE EXECUTION OF A DEATH SENTENCE; TO CREATE THE MISSISSIPPI CAPITAL DEFENSE LITIGATION ACT; TO CREATE THE MISSISSIPPI OFFICE OF CAPITAL DEFENSE COUNSEL AND SPECIFY ITS PERSONNEL; TO PROVIDE QUALIFICATIONS FOR 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 APPOINTMENT OF ATTORNEYS IN SITUATIONS WHERE CONFLICTS ARISE; TO CREATE THE SPECIAL CAPITAL DEFENSE LITIGATION FUND; TO PROVIDE THAT ATTORNEYS APPOINTED TO THE OFFICE SHALL BE FULL TIME; TO CREATE THE MISSISSIPPI PUBLIC DEFENDERS SYSTEM TASK FORCE TO MAKE A COMPREHENSIVE STUDY OF THE EXISTING PUBLIC DEFENDER LAW IN MISSISSIPPI; TO EXAMINE AND STUDY APPROACHES TAKEN IN OTHER STATES REGARDING THE IMPLEMENTATION AND COST OF STATEWIDE PUBLIC DEFENDER SYSTEMS; TO MAKE RECOMMENDATIONS FOR ACTION BY THE LEGISLATURE TO STUDY THE RELATIONSHIP BETWEEN THE ESTABLISHMENT OF DISTRICT PUBLIC DEFENDERS AND CIRCUIT JUDGES; TO ANALYZE DISTRICT NEEDS; TO PROVIDE FOR THE COMPENSATION OF THE TASK FORCE; TO PROVIDE THAT THE TASK FORCE SHALL MAKE A REPORT OF ITS WORK; AND FOR RELATED PURPOSES.

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

SECTION 1. Sections 1 through 18 of 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 three (3) attorneys, one (1) investigator, one (1) fiscal officer and one (1) secretary/paralegal. One of those attorneys shall serve as director of the office. The director shall be appointed by the Chief Justice of the Supreme Court with the approval of a majority of the justices voting, for a term of four (4) years, or until a successor takes office. The remaining attorneys and other staff shall be appointed by the director of the office and shall serve at the will and pleasure of the director. The director and all other attorneys in the office shall be active members of The Mississippi Bar and shall meet all qualifications necessary to serve as post-conviction counsel for persons under a sentence of death. The director may be removed from office by the Chief Justice upon finding that the director is not qualified under law to serve as post-conviction counsel for persons under sentences of death, has failed to perform the duties of the office or has acted beyond the scope of the authority granted by law for the office.

SECTION 3. The Office of Capital Post-Conviction Counsel is created for the purpose of providing representation to indigent parties under sentences of death in post-conviction proceedings, and to perform such other duties as set forth by law.

SECTION 4. The Office of Capital Post-Conviction Counsel shall limit its activities to the representation of inmates under sentence of death in post-conviction proceedings and ancillary matters related directly to post-conviction review of their convictions and sentences and other activities explicitly authorized in statute. Representation by the office or by private counsel under appointment by the office will end upon the filing of proceeding for federal habeas corpus review or for appointment of counsel to represent the defendant in federal habeas corpus proceedings. However, the office may continue representation if the office or a staff attorney employed by the office shall be appointed by a federal court to represent the inmate in federal habeas corpus proceedings. In such event, the office or the employee attorney shall apply to the federal court for compensation and expenses and shall upon receipt of payments by the federal court pay all sums received over to the office for deposit in the Special Capital Post-Conviction Counsel Fund as provided in Section 9 of this act, from which all expenses for investigation and litigation shall be disbursed. Representation in post-conviction proceedings shall further include representation of the inmate from the exhaustion of all state and federal post-conviction litigation until execution of the sentence or an adjudication resulting in either a new trial or a vacation of the death sentence. The attorneys appointed to serve in the Office of Capital Post-Conviction Counsel shall devote their entire time to the duties of the office, shall not represent any persons in other litigation, civil or criminal, nor in any other way engage in the practice of law, and shall in no manner, directly or indirectly, participate in the trial of any person charged with capital murder or direct appeal of any person under sentence of death in the state, nor engage in lobbying activities for or against the death penalty. Any violation of this provision shall be grounds for termination from employment, in the case of the director, by the Chief Justice, and in the case of other attorneys, by the director, with approval of the Chief Justice.

SECTION 5. The director appointed under this act shall be compensated at no more than the maximum amount allowed by statute for a district attorney, and other attorneys in the office shall be compensated at no more than the maximum amount allowed by statute for an assistant district attorney.

SECTION 6. 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.

SECTION 7. In addition to the authority to represent persons under sentence of death in state post-conviction proceedings, the director is hereby empowered to pay and disburse salaries, employment benefits and charges relating to employment of staff and to establish their salaries, and expenses of the office; to incur and pay travel expenses of staff necessary for the performance of the duties of the office; to rent or lease on such terms as he may think proper such office space as is necessary in the City of Jackson to accommodate the staff; to solicit and accept monies, gifts, grants or services from any public or private sources for the purpose of funding, operating and executing the statutory duties of the office; to enter into and perform contracts, including but not limited to, contracts and agreements necessary to obtain and receive monies, gifts, grants or services from federal, public and private sources, and to purchase such necessary office supplies and equipment as may be needed for the proper administration of said offices; and to incur and pay such other expenses as are appropriate and customary to the operations of the office. The director shall be required to obtain a surety bond in the amount of not less than One Hundred Thousand Dollars ($100,000.00) payable to the state. The cost of such bond shall be paid out of funds appropriated for the operations of the office. All salaries and other expenditures shall be paid from funds appropriated for such purposes augmented by funds received as gifts and grants from public and private sources.

SECTION 8. The director shall, as prescribed by the Chief Justice, keep a docket of all death penalty cases originating in the courts of Mississippi, 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. The director shall prepare and maintain a roster of all death penalty cases originating in the courts of Mississippi and pending in state and federal courts indicating the current status of each such case, and a history of those death penalty cases filed since 1976. Copies of such dockets and rosters shall be submitted to the Supreme Court in such format and with such appropriate information and as frequently as the Chief Justice may direct. The director shall also report monthly to the Chief Justice the activities, receipts and expenditures of the office.

SECTION 9. If, at any time during the representation of two (2) or more defendants, the director determines that the interest of those persons are so adverse or hostile that they cannot all be represented by the director or his staff without conflict of interest, or if the director shall determine that the volume or number of representations shall so require, the director, in his sole discretion, not withstanding any statute or regulation to the contrary, shall be authorized to employ qualified private counsel. Fees and expenses, approved by order of the appropriate court, including investigative and expert witness expenses of such private counsel shall be paid from funds appropriated to a Special Capital Post-Conviction Counsel Fund for this purpose, which fund 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 which accrues to the fund shall remain in the fund.

SECTION 10. The director is further authorized to solicit and accept monies, gifts, grants or services from any public or private source, for the purpose of funding, operating and executing the duties of the office.

SECTION 11. Section 99-19-105, Mississippi Code of 1972, is amended as follows:

99-19-105. (1) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Mississippi Supreme Court. The clerk of the trial court, within ten (10) days after receiving the transcript, shall transmit the entire record and transcript to the Mississippi Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Mississippi Supreme Court, a copy of which shall be served upon counsel for the state and counsel for the defendant.

(2) The Mississippi Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.

(3) With regard to the sentence, the court shall determine:

(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;

(b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101;

(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and

(d) Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error, or both.

(4) Both the defendant and the state shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.

(5) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:

(a) Affirm the sentence of death;

(b) Reweigh the remaining aggravating circumstances against the mitigating circumstances should one or more of the aggravating circumstances be found to be invalid, and (i) affirm the sentence of death or (ii) hold the error in the sentence phase harmless error and affirm the sentence of death or (iii) remand the case for a new sentencing hearing; or

(c) Set the sentence aside and remand the case for modification of the sentence to imprisonment for life.

(6) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

SECTION 12. Section 99-39-5, Mississippi Code of 1972, is amended as follows:

99-39-5. (1) Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims:

(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;

(b) That the trial court was without jurisdiction to impose sentence;

(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;

(d) That the sentence exceeds the maximum authorized by law;

(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

(f) That his plea was made involuntarily;

(g) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;

(h) That he is entitled to an out-of-time appeal; or

(i) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy; may file a motion to vacate, set aside or correct the judgment or sentence, or for an out-of-time appeal.

(2) A motion for relief under this chapter shall be made within three (3) years after the time in which the prisoner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

(3) This motion is not a substitute for, nor does it affect, any remedy incident to the proceeding in the trial court, or direct review of the conviction or sentence.

(4) Proceedings under this chapter shall be subject to the provisions of Section 99-19-42.

SECTION 13. Section 99-39-23, Mississippi Code of 1972, is amended as follows:

99-39-23. (1) If an evidentiary hearing is required the judge may appoint counsel for a petitioner who qualifies for the appointment of counsel under Section 99-15-15, Mississippi Code of 1972.

(2) The hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation.

(3) The parties shall be entitled to subpoena witnesses and compel their attendance, including, but not being limited to, subpoenas duces tecum.

(4) The court may receive proof by affidavits, depositions, oral testimony or other evidence and may order the prisoner brought before it for the hearing.

(5) If the court finds in favor of the prisoner, it shall enter an appropriate order with respect to the conviction or sentence under attack, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.

(6) The order as provided in subsection (5) of this section or any order dismissing the prisoner's motion or otherwise denying relief under this chapter is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this chapter. Excepted from this prohibition is a motion filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's supervening insanity prior to the execution of a sentence of death. A dismissal or denial of a motion relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

(7) No relief shall be granted under this chapter unless the prisoner proves by a preponderance of the evidence that he is entitled to such.

(8) Proceedings under this section shall be subject to the provisions of Section 99-19-42.

(9) In cases resulting in a sentence of death and upon a determination of indigence, appointment of post-conviction counsel shall be made by the Office of Capital Post-Conviction Counsel upon order entered by the Supreme Court promptly upon announcement of the decision on direct appeal affirming the sentence of death. The order shall direct the trial court to immediately determine indigence and whether the inmate will accept counsel.

SECTION 14. Section 99-39-27, Mississippi Code of 1972, is amended as follows:

99-39-27. (1) The application for leave to proceed in the trial court filed with the Supreme Court under Section 99-39-7 shall name the State of Mississippi as the respondent.

(2) The application shall contain the original and two (2) executed copies of the motion proposed to be filed in the trial court together with such other supporting pleadings and documentation as the Supreme Court by rule may require.

(3) The prisoner shall serve an executed copy of the application upon the Attorney General simultaneously with the filing of the application with the court.

(4) The original motion, together with all files, records, transcripts and correspondence relating to the judgment under attack, shall promptly be examined by the court.

(5) Unless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by such are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application. The court may, in its discretion, require the Attorney General upon sufficient notice to respond to the application.

(6) The court upon satisfaction of the standards set forth in this chapter is empowered to grant the application.

(7) In granting the application the court, in its discretion, may:

(a) Where sufficient facts exist from the face of the application, motion, exhibits, the prior record and the state's response, together with any exhibits submitted therewith, or upon stipulation of the parties, grant or deny any or all relief requested in the attached motion.

(b) Allow the filing of the motion in the trial court for further proceedings under Sections 99-39-13 through 99-39-23.

(8) No application or relief shall be granted without the Attorney General being given at least five (5) days to respond.

(9) The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter. Excepted from this prohibition is an application filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's supervening insanity prior to the execution of a sentence of death. A dismissal or denial of an application relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive applications on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise exempted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

(10) Proceedings under this section shall be subject to the provisions of Section 99-19-42.

(11) Post-conviction proceedings wherein the defendant is under sentence of death shall be governed by rules established by the Supreme Court as well as the provisions of this section.

SECTION 15. The following shall be codified as Section 99-15-18, Mississippi Code of 1972:

99-15-18. (1) Counsel employed by an office funded by the State of Mississippi or any county shall receive no compensation or expenses for representation of a party seeking post-conviction relief while under a sentence of death other than the compensation attendant to his office.

(2) Unless employed by such an office, counsel appointed to represent a party seeking post-conviction relief while under a sentence of death shall be paid at an hourly rate not to exceed eighty percent (80%) of the hourly rate allowed in the United States District Courts of the Northern and Southern Districts of Mississippi to attorneys appointed to represent defendants seeking habeas corpus relief. Money shall not be paid to court appointed counsel unless either (a) a petition is timely filed, or (b) if a petition is not filed, a notice is timely filed stating that counsel has reviewed the record and found no meritorious claim. Prior to payment of any fees in a case in excess of Seven Thousand Five Hundred Dollars ($7,500.00) or expenses of investigation and experts in excess of Two Thousand Five Hundred Dollars ($2,500.00), the application for such fees and expenses will be submitted to the Supreme Court for review of the award of the convicting court. If counsel believes that the court has failed to allow reasonable compensation, counsel may petition the Supreme Court for review. If counsel is appointed in successive post-conviction proceedings, such counsel shall receive reasonable compensation considering the services performed.

(3) The trial court shall also, upon petition by the party seeking post-conviction relief, authorize additional monies to pay for investigative and expert services that are reasonably necessary to adequately litigate the post-conviction claims. The initial petition for such expenses shall present a credible estimate of anticipated expenses, and such estimate shall be updated from time to time as needed to inform the court of the status of such expenses. Payment of such expenses shall be made from funds in the Special Capital Post-Conviction Counsel Fund.

SECTION 16. The following shall be codified as Section 99-39-28, Mississippi Code of 1972:

99-39-28. If application to proceed in the trial court is granted, post-conviction proceedings on cases where the death penalty has been imposed in the trial court and appeals from the trial court shall be conducted in accordance with rules established by the Supreme Court.

SECTION 17. When judgment of death becomes final and a writ of certiorari to the United States Supreme Court has been denied or the time for filing such petition has expired, the court shall set an execution date for a person sentenced to the death penalty. Within sixty (60) days following the appointment of post-conviction counsel, upon declaration by counsel that he deems post-conviction review to be meritorious and that he intends to file an application for post-conviction review, the court may stay execution pending the disposition of the post-conviction proceeding. In the event no application for post-conviction relief is filed within one (1) year of the date of the disposition of the petition for writ of certiorari or the time for certiorari has expired, any stay entered by the court will automatically vacate. The filing of a declaration by counsel that he deems post-conviction review to be meritorious and intends to file an application for post-conviction review shall in no manner constitute the filing of an application for post-conviction review that would toll the running of any statute of limitations. Setting or resetting the date of execution shall be made on motion of the state that all state and federal remedies have been exhausted, or that the defendant has failed to file for further state or federal review within the time allowed by law.

SECTION 18. Section 99-19-49, Mississippi Code of 1972, which provides for the setting of a day for the execution of a death sentence, is repealed.

SECTION 19. Sections 19 through 29 of this act may be cited as the "Mississippi Capital Defense Litigation Act."

SECTION 20. There is hereby created the Mississippi Office of Capital Defense Counsel. This office shall consist of four (4) attorneys, two (2) investigators, one (1) fiscal officer and two (2) secretaries/paralegals. One of these attorneys shall serve as director of the office. The director shall be appointed by the Governor with the advise and consent of the Senate for a term of four (4) years or until a successor takes office. The remaining attorneys and other staff shall be appointed by the director of the office and shall serve at the will and pleasure of the director. The director and all other attorneys in the office shall be active members of The Mississippi Bar. The director may be removed by the Governor upon finding that the director is not qualified under law, has failed to perform the duties of the office, or has acted beyond the scope of the authority granted by law for the office.

SECTION 21. The Office of Capital Defense Counsel is created for the purpose of providing representation to indigent parties under indictment for death penalty eligible offenses and to perform such other duties as set forth by law.

SECTION 22. The Office of Capital Defense Counsel shall limit its activities to representation of defendants accused of death eligible offenses and ancillary matters related directly to death eligible offenses and other activities expressly authorized by statute. Representation by the office or by other court appointed counsel under this act shall terminate upon completion of trial and/or direct appeal. The attorneys appointed to serve in the Office of Capital Defense Counsel shall devote their entire time to the duties of the office, shall not represent any persons in other litigation, civil or criminal, nor in any other way engage in the practice of law, and shall in no manner, directly or indirectly, engage in lobbying activities for or against the death penalty. Any violation of this provision shall be grounds for termination from employment, in the case of the director by the Governor and in the case of other attorneys by the director with approval of the Governor.

SECTION 23. The director appointed under this act shall be compensated at no more than the maximum amount allowed by statute for a district attorney, and other attorneys in the office shall be compensated at no more than the maximum amount allowed by statute for an assistant district attorney.

SECTION 24. The Director of the Capital Defense Counsel Office shall keep the office open Monday through Friday for not less than eight (8) hours each day and observe such holidays as prescribed by statute.

SECTION 25. In addition to the authority to represent persons under indictment for death eligible offenses, the director is hereby empowered to pay and disburse salaries, employment benefits and charges relating to employment of staff and to establish their salaries and expenses of the office; to incur and pay travel expenses of staff necessary for the performance of the duties of the office; to rent or lease on such terms as he may think proper such office space as is necessary in the City of Jackson to accommodate the staff; to enter into and perform contracts 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, and to incur and pay such other expenses as are appropriate and customary to the operation of the office.

SECTION 26. The director shall keep a docket of all indicted death eligible cases originating in the courts of Mississippi which must, at all reasonable times, be open to inspection by the public and must show the county, district and court in which the cause is pending. The director shall prepare and maintain a roster of all death penalty cases in the courts of Mississippi indicating the current status of each case and submit this report to the Governor, Chief Justice of the Supreme Court and the Administrative Office of the Courts monthly. The director shall also report monthly to the Administrative Office of Courts the activities, receipts and expenditures of the office.

SECTION 27. If, at any time, during the representation of two (2) or more defendants the director determines that the interests of those persons are so adverse or hostile they cannot all be represented by the director or his staff without conflict of interest, or if the director shall determine that the volume or number of representations shall so require, the director in his sole discretion, notwithstanding any statute or regulation to the contrary, shall be authorized to employ qualified private counsel. Fees and expenses approved by order of the court of original jurisdiction, including investigative and expert witness expenses of such private counsel, shall be paid by funds appropriated to a Capital Defense Counsel Special Fund for this purpose, which fund is hereby created. Monies in this fund shall not lapse into the General Fund at the end of the fiscal year but shall remain in the fund, and any interest accrued to the fund shall remain in the fund.

SECTION 28. Upon determination of indigence the circuit court may in its discretion, appoint local counsel for the purpose of defending death eligible indigent defendants, the fees and expenses of which shall be paid by the Capital Defense Counsel Special Fund. In the presiding circuit judge's discretion, a determination of the absence of competent death penalty defense counsel having been made, counsel from the Office of Capital Defense Counsel may be appointed to assist local counsel to defend said case with all fees and expenses to be paid by the Capital Defense Counsel Special Fund.

SECTION 29. Sections 25-32-31, 25-32-33, 25-32-35, 25-32-37, 25-32-39, 25-32-41, 25-32-43, 25-32-45, 25-32-47, 25-32-49, 25-32-51, 25-32-53, 25-32-55, 25-32-57, 25-32-59, 25-32-61, 25-32-63 and 25-32-65, Mississippi Code of 1972, which comprise the Mississippi Statewide Public Defender System Act, are repealed.

SECTION 30. (1) There is created the Mississippi Public Defender Task Force which shall be composed of eleven (11) members as follows:

(a) The President of the Mississippi Public Defender Association, or his designee;

(b) The President of the Mississippi Prosecutors Association, or his designee;

(c) A representative of the Administrative Office of Courts;

(d) A representative of the Mississippi Supreme Court;

(e) A representative of the Conference of Circuit Judges;

(f) A representative of the Mississippi Attorney General's Office;

(g) A representative of the Mississippi Association of Supervisors;

(h) The Chairman of the Senate Judiciary Committee, or his designee;

(i) The Chairman of the Senate Appropriations Committee, or his designee;

(j) The Chairman of the House Judiciary En Banc Committee, or his designee;

(k) The Chairman of the House Appropriations Committee, or his designee.

(2) At its first meeting, the task force shall elect a chairman and vice chairman from its membership and shall adopt rules for transacting its business and keeping records. Members of the task force shall receive a per diem in the amount provided in Section 25-3-69 for each day engaged in the business of the task force. Members of the task force other than the legislative members shall receive reimbursement for travel expenses incurred while engaged in official business of the task force in accordance with Section 25-3-41 and the legislative members of the task force shall receive the expense allowance provided for in Section 5-1-47.

(3) The duties of the task force shall be to:

(a) Make a comprehensive study of the needs by circuit court districts for state-supported indigent defense counsel, examining existing public defender programs. This report shall be provided to the Legislature by September 29, 2000.

(b) Examine and study approaches taken by other states in the implementation and costs of state-supported indigent criminal cases.

(c) To study the relationship between presiding circuit court judges and the appointment of criminal indigent defense counsel.

SECTION 31. This act shall take effect and be in force from and after July 1, 2000.