MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary

By: Senator(s) Tollison

AN ACT TO AMEND SECTION 99-15-18, MISSISSIPPI CODE OF 1972, TO REVISE THE MANNER OF PAYMENT OF EXPENSES OF DEFENSE COUNSEL; TO AMEND SECTION 99-39-103, MISSISSIPPI CODE OF 1972, TO REVISE THE NUMBER AND QUALIFICATIONS OF THE PERSONNEL OF THE OFFICE; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 99-15-18, Mississippi Code of 1972, is amended as follows:

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. * * *

(3) Counsel shall submit to the trial court, once each month, an interim invoice. Compensation earned and reimbursable expenses incurred each month shall be claimed on an interim invoice submitted not later than the fifteenth day of the following month, or the first business day thereafter. All interim vouchers shall be supported by detailed and itemized time and expense statements. The trial court shall review the interim invoices when submitted and will authorize compensation to be paid for seventy-five percent (75%) of the approved number of hours. The court shall also authorize for payment all reimbursable expenses, including fees and expenses of experts and of investigators, reasonably incurred. At the conclusion of the state-paid post-conviction representation, counsel shall submit a final voucher seeking payment for representation provided during the final interim period. The final invoice shall also set forth in detail the time and expenses claimed for the entire case, including all documentation. Counsel shall reflect all compensation and reimbursement previously received on the appropriate line of the final invoice. Upon review and approval of the final invoice, the trial court shall authorize compensation to be paid for the approved number of hours provided during the final interim period, for all reasonable expenses reasonably incurred during the final interim period, and for the withheld twenty-five percent (25%) of hours approved in prior interim periods.

(4) All interim invoices will be maintained under seal during the pendency of state post-conviction proceedings. Upon submission by defendant's counsel of a final invoice, the trial court shall unseal the interim invoices unless the trial court determines that petitioner's interest requires a limited disclosure. In determining whether limited disclosure is appropriate, the trial court shall consider the need: (a) to protect the petitioner's Fifth Amendment right against self-incrimination; (b) to protect the petitioner's Sixth Amendment right to effective assistance of counsel; (c) the petitioner's attorney-client privilege; (d) the work product privilege of the petitioner's counsel; (e) the safety of any person; (f) whether petitioner intends to seek federal habeas corpus relief; and (g) any other interest that justice may require.

(5) 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.

(6) 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 2. Section 99-39-103, Mississippi Code of 1972, is amended as follows:

99-39-103. There is created the Mississippi Office of Capital Post-Conviction Counsel. This office shall consist of a minimum of three (3), not to exceed five (5), attorneys, a minimum of one (1), not to exceed three (3), investigators, one (1) fiscal officer and a minimum of one (1), not to exceed two (2), secretaries/paralegals. One of the 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 either be active members of The Mississippi Bar, or, if a member in good standing of the bar of another jurisdiction, must apply to and secure admission to The Mississippi Bar within twelve (12) months of the commencement of the person's employment by the office. At least three (3) of the attorneys in the office 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. This act shall take effect and be in force from and after July 1, 2001.