MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary; Appropriations

By: Senator(s) Turner

AN ACT TO AMEND THE STATEWIDE PUBLIC DEFENDER SYSTEM ACT OF 1998; TO REPEAL SECTIONS 25-32-31, 25-32-33, 25-32-35, 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 MAJORITY OF THE MISSISSIPPI STATEWIDE PUBLIC DEFENDER SYSTEM ACT OF 1998; TO RETAIN THE PUBLIC DEFENDER COMMISSION; TO CREATE THE MISSISSIPPI OFFICE OF DEATH PENALTY 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 DEATH PENALTY DEFENSE LITIGATION FUND; TO PROVIDE THAT ATTORNEYS APPOINTED TO THE OFFICE SHALL BE FULL TIME; TO REPEAL SECTION 21, CHAPTER 575, LAWS OF 1998, WHICH PROVIDES THAT ALL NEW PROGRAMS AUTHORIZED UNDER SENATE BILL NO. 2239, 1998 REGULAR SESSION, SHALL BE SUBJECT TO APPROPRIATION OF FUNDS; 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 Death Penalty Defense Litigation Act."

SECTION 2. There is hereby created the Mississippi Office of Death Penalty Defense Counsel under the direction and authority of the Mississippi Public Defender Commission. This office shall consist of attorneys, investigators, fiscal officers, secretaries and paralegals as funding allows. One (1) of the attorneys shall serve as director of the office. The director shall be appointed by the Mississippi Public Defender Commission 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 Mississippi Public Defender Commission 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 3. The office of Death Penalty 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 4. The office of Death Penalty 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 the exhaustion of all state court remedies. The attorneys appointed to serve in the office of Death Penalty 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 commission and in the case of other attorneys by the director with approval of the commission.

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 Death Penalty Defense Counsel office shall keep the office open Monday through Friday for not less than eight (8) hours each day and observe such state holidays as prescribed by statute.

SECTION 7. 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 8. 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 the report to the Chief Justice of the Supreme Court as frequently as the Chief Justice may direct.

SECTION 9. 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 sold 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 Death Penalty Defense Counsel Special Fund for that 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 10. Upon determination of indigence, the circuit court, in its discretion, may appoint local counsel for the purpose of defending death eligible indigent defendants, the fees and expenses of which shall be paid by the Death Penalty 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 Death Penalty Defense Counsel may be appointed to assist local counsel to defend said case with all fees and expenses to be paid by the Death Penalty Defense Counsel Special Fund.

SECTION 11. Sections 25-32-31, 25-32-33, 25-32-35, 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 majority of the Mississippi Statewide Public Defender System Act of 1998, are repealed.

SECTION 12. Section 21, Chapter 575, Laws of 1998, which provides that all new programs authorized under Senate Bill No. 2239, 1998 Regular Session, shall be subject to appropriation of funds, is repealed.

SECTION 13. This act shall take effect and be in force from and after July 1, 2000.