House Bill 523

AN ACT TO CREATE A PUBLIC DEFENDER PILOT PROJECT; TO CREATE THE DISTRICT PUBLIC DEFENDER FUND AND PROVIDE FOR ITS ADMINISTRATION; TO PROVIDE FOR THE CREATION OF DISTRICT PUBLIC DEFENDER OFFICES AND SPECIFY THE EMPLOYEES AND ADMINISTRATION THEREOF; TO ADDRESS CONFLICTS OF INTEREST; TO PROVIDE FOR THE COMPENSATION OF DISTRICT PUBLIC DEFENDERS AND OTHER EMPLOYEES; TO ALLOW OFFICE EXPENSES; TO PROVIDE THE DUTIES OF A DISTRICT PUBLIC DEFENDER; TO AMEND SECTION 99-15-15, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.

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

SECTION 1. (1) There is created in the State Treasury a special fund to be known as the District Public Defender Fund. The purpose of the fund shall be to provide funding for the district public defender pilot offices established by this act and related purposes. The fund shall be a continuing fund, not subject to fiscal year limitations, and shall consist of:

(a) Monies appropriated by the Legislature for the purposes of funding the offices of district public defender;

(b) The interest accruing to the fund;

(d) Donations; and

(e) Monies received from such other sources as may be provided by law.

(2) The Fund shall be administered by the Administrative Office of the Courts (AOC) pursuant to the guidelines and conditions set forth in this act and state law. The AOC is authorized to expend up to Four Million Five Hundred Thousand Dollars ($4,500,000.00) from the fund to establish up to five (5) district defender pilot offices. The AOC may expend up to Two Hundred Thousand Dollars ($200,000.00) of these funds to administer this program and is authorized to hire staff and/or enter into contracts necessary to carry out this project.

(3) The AOC shall establish district public defender offices in the Second, Fourth, Seventh, Eleventh and Nineteenth Circuit Court Districts. No office shall be established in a district without the agreement of the board(s) of supervisors of the county or all counties of the district as evidenced by order spread upon their minutes and the agreement of the senior circuit judge with the approval of a majority of circuit judges in the district.

SECTION 2. (1) For each circuit court district selected for a pilot office the offices of district public defender, assistant district public defender, juvenile defender, district defender investigator and social service caseworker are hereby created.

(2) The district public defender shall be a duly licensed attorney admitted to the practice of law in this state, having practiced in the area of criminal law for at least five (5) years.

(3) Each district public defender shall be appointed by the senior circuit judge until the end of the term of the district attorney and thereafter for a term of four (4) years and said term shall coincide with the term of the district attorney. Such appointee shall be selected from a list of two (2) or more attorneys recommended by the county or regional bar association(s) within the district. If the senior circuit judge in any of the circuit court districts listed in Section 1 of this act has already appointed a county or district public defender, then that public defender shall remain in place and assume the office of district defender created by this act. In the event a vacancy shall occur in the office of district defender, the senior circuit judge shall appoint another qualified person to serve as district public defender until the end of the regular term of office.

(4) The district public defender may only be removed from office by the senior circuit judge upon a written finding that the defender 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.

(5) Each district public defender is authorized a number of assistant district public defender positions equal to the legal assistant district attorney positions authorized for his district by Section 25-31-5(1). In addition to these assistant district public defender positions, the district public defender is authorized to appoint and shall hire one (1) additional assistant public defender who shall handle cases in the youth court of the district and shall be designated as "juvenile defender." The juvenile defender shall meet the requirements to serve as a youth court public defender as provided in Section 43-21-201 and this act.

(6) The district public defender shall appoint suitable persons to serve as assistant district public defenders. All assistant district public defenders and juvenile defenders employed under this act shall serve at the pleasure of the district public defender and shall perform such duties as the district public defender may require. Assistant district public defenders and juvenile defenders may be removed by the senior circuit judge of the district for cause.

(7) The district public defender shall appoint suitable persons to serve as district public defender investigators. The number of public defender investigators in a district shall be equal to the number of district attorney investigators authorized for the district by Section 25-31-10. Persons so appointed shall serve at the pleasure of the district public defender and shall perform such duties as the district public defender may require.

(8) In addition to the assistant public defenders, juvenile defenders and investigators authorized by this act, the district public defender may employ as a social service caseworker one (1) master's level social worker for each approved victim assistance coordinator serving the district attorney in the defender's district. Persons so appointed shall serve at the pleasure of the district public defender and shall perform such duties as the district public defender may require.

(9) The duty of the social service caseworker is to assist attorneys in fulfilling their professional responsibilities, by assessing the client's deficiencies and needs (e.g., mental illness, substance abuse, domestic problems, educational or job-skills deficits), referring them to available community-based services and resources, and preparing a dispositional plan and/or presentencing report meeting the requirements and expectations of the court.

(10) All attorneys employed under this act shall receive as continuing legal education credits, twelve (12) hours per year of criminal defense training or in the case of juvenile defenders, juvenile defense training, approved by the Mississippi Office of Indigent Appeals, Public Defender Training Division. Investigators and social service caseworkers shall receive continuing professional education as determined and provided by the Public Defender Training Division. Attorneys, investigators and social service providers shall be considered state employees.

(11) No district public defender, assistant district public defender or assistant juvenile defender shall be permitted to engage in the practice of law except as the duties of such office require. Notwithstanding any other restrictions, attorneys with pending private legal matters at the time of employment with the office of district public defender shall have six (6) months to conclude or transfer such cases in keeping with the standards of professional and ethical conduct.

SECTION 3. If the court finds that indigent defendants have such conflicts of interest that they cannot be properly represented by the district public defender or his staff without conflict of interest, or when other good cause is shown, the court shall appoint separate counsel as provided in Section 99-15-15. In such cases, the fees allowed appointed counsel in Section 99-15-17, shall apply.

SECTION 4. (1) The salary for district public defenders shall be an amount equal to the salary for district attorneys.

(2) Assistant district public defenders and juvenile defenders shall be compensated according to the pay schedule for legal assistants for district attorneys.

(3) The salary for district public defender investigators and social service caseworkers shall be up to an amount equal to the salary for district attorney investigators and victim assistance coordinators set in Section 25-31-10.

SECTION 5. Each county shall provide the district public defender with suitable office space within the judicial district, together with necessary furniture and equipment and support staff. Office expenses shall be provided by the state and the district public defender shall also receive from the state funding for travel and other expenses.

SECTION 6. (1) The district public defender has the duty and responsibility of representing indigent persons for whom the district public defender has been appointed as counsel by the court. Either personally or through an assistant district public defender, the district public defender shall counsel with the accused, independently investigate the charges and all surrounding facts and represent such accused in court. Where possible the attorney initially assigned by the district public defender to the client's case shall represent the client until completion of the case. The public defender shall have free access to the accused and be provided a confidential space within which to meet with the client.

(2) If the client is aggrieved by the judgment of the trial court the district public defender shall advise such client fully concerning rights of appellate review. If the client desires to appeal to an appellate court, the district public defender shall reasonably take all steps necessary to perfect the appeal, including a new trial motion and any further procedures as may be required by the Rules of Appellate Procedure.

(3) The district public defender shall submit quarterly reports to the Administrative Office of the Courts in such form and manner as may be directed, reflecting the staffing and payroll of the office, the number, kind, status and disposition of all cases and proceedings assigned to the office and the revenue and expenditures of the office.

(4) The district public defender shall be 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 within the limits of this act; to incur and pay travel expenses of staff necessary for the performance of the duties of the office; 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 office 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.

(5) The district public defender shall cooperate with any individual, private or public agency, whether state, local or federal, or with any law school, public or private, or with any institution of higher learning, public or private, to obtain by gift, grant or otherwise any financial, professional, investigatory, training, educational or research or other assistance; provided, however, that any grants or any financial assistance whatever for the purpose herein set out shall be paid over to the District Public Defender Fund and administered consistent with the provisions of this act and the rules and regulations of the Mississippi Department of Finance and Administration.

SECTION 7. Section 99-15-15, Mississippi Code of 1972, is amended as follows:

99-15-15. When any person shall be charged with a felony, misdemeanor punishable by confinement for ninety (90) days or more, or commission of an act of delinquency, the court or the judge in vacation, being satisfied that such person is an indigent person and is unable to employ counsel or has a conflict of interest as provided in Section 3, House Bill No. , 2010 Regular Session may, in the discretion of the court, appoint counsel to defend him.

Such appointed counsel shall have free access to the accused who shall have process to compel the attendance of witnesses in his favor.

The accused shall have such representation available at every critical stage of the proceeding against him where a substantial right may be affected.

SECTION 8. This act shall take effect and be in force from and after July 1, 2010.