Brief of Amicus Curiae Office of State Public Defender
E-Filed Document
Mar 25 2015 16:40:22
2015-M-00397
Pages: 13
IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-M-00397 (Seeking a Writ of Prohibition to the Hinds County Circuit Court)
IN RE: Office Of The Hinds County Public Defender, et al
PETITIONERS
_______________________________________________________________
Brief of Amicus Curiae Office of State Public Defender ________________________________________________________________
OFFICE OF STATE PUBLIC DEFENDER By: Leslie S. Lee, Miss. Bar # 7765 State Defender PO Box 3510 Jackson, MS 39207 601-576-4290 [email protected]
TABLE OF CONTENTS PAGE TABLE OF CONTENTS .................................................................................................... i TABLE OF AUTHORITIES ............................................................................................. ii STATEMENT OF ISSUES ................................................................................................ ii INTERESTS OF AMICUS CURIAE ...................................................................................1 ARGUMENT .......................................................................................................................2 CONCLUSION ...................................................................................................................8 CERTIFICATE OF SERVICE ............................................................................................9
i
TABLE OF AUTHORITIES Cases Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) ................................. 7 Ferri v. Ackerman, 444 U.S. 193, 100 S. Ct. 402, 62 L. Ed. 2d 355 (1979) .................................. 7 Gideon v. Wainwright, 372 U.S. 335, 82 S.Ct. 792, 9 L.Ed.2d 799 (1963) ................................... 7 Lewis v. Hinds County Circuit Court, --- So.3d ---- (Feb. 19, 2015), No. 2013–CA–01842–SCT, 2015 WL 691293 ........................................................................................................................ 6 Page v. State, 495 So. 2d 436 (Miss. 1986) .................................................................................... 4 Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) .......................... 7 Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932)............................................. 7 Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008) .. 4 State v. Quitman County, 807 So.2d 401 (Miss. 2001)................................................................... 5 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)...................... 7 Williams v. State, --- So.3d --- (Miss. Dec. 11, 2014), 2013-IA-402-SCT, 2014 WL 7085959 ..... 5 Statutes Miss Code § 25-32-7 ....................................................................................................................... 5 Miss. Code § 25-32-1 ...................................................................................................................... 5 Miss. Code § 25-32-13 .................................................................................................................... 3 Miss. Code § 25-32-9 ...................................................................................................................... 3 Miss. Code § 99-18-1 (7). ............................................................................................................... 1 Miss. Code § 99-40-1 (4)(a)............................................................................................................ 1 Miss. Code § 99-40-1 (4)(a)(iii)...................................................................................................... 1 Miss. Code §§ 25-32-1 through 25-32-19....................................................................................... 3 Constitutional Provisions MS Const. Art. 1, §§ 1 and 2 .......................................................................................................... 6 MS Const. Art. 3, § 26 .................................................................................................................... 2 U.S. Const. Amend. VI ............................................................................................................... 2, 6 Other Authorities HB 273, Mississippi Legislature 2014 Regular Session. http://billstatus.ls. state.ms.us/2014/pdf/history/HB/HB0273.xml. .......................................................................... 5 MC Law Legislative History Project http://law.mc.edu/legislature /bill_details.php?id=2584&session=2014................................................................................... 5
ii
STATEMENT OF ISSUES May a circuit judge, in violation of statute, MS Const. Art. 3, § 26, and the Sixth Amendment, circumvent the established public defender office in assignment of counsel? May a circuit judge, in violation of statute, interfere with the internal management of the office of public defender, specifically the supervision of staff? Does judicial interference in the administrative functions of the public defender office violate the constitutional separation of powers?
iii
IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-M-00397 (Seeking a Writ of Prohibition to the Hinds County Circuit Court)
IN RE: Office Of The Hinds County Public Defender, et al
PETITIONERS
BRIEF OF AMICUS CURIAE OFFICE OF STATE PUBLIC DEFENDER INTERESTS OF AMICUS CURIAE The Office of State Public Defender (OSPD) is a state agency created by the Mississippi Legislature to among other duties “develop plans and proposals for further development of a statewide public defender system … and to act as spokesperson for all matters relating to indigent defense representation.” Miss. Code § 99-18-1 (7). The agency is also mandated to provide “information for the Legislature pertaining to the needs of public defenders practicing in all state, county, municipal and youth courts.” Miss. Code § 99-40-1 (4)(a)(iii). The broad legislative mandate requires OSPD to work with all local public defenders to provide education, training and technical assistance. Miss. Code § 99-40-1 (4)(a). Based on these mandates OSPD has a unique and compelling interest in the efficient and effective operation of the indigent defense system in Mississippi. OSPD submits this brief in support of the Hinds County Office of the Public Defender’s Motion for Writ of Prohibition to express concerns raised by this controversy related to the statewide indigent defense function. OSPD is not taking a position on the specific facts of this case, but believes the correct application of the law is paramount to insure uniform recognition throughout the State on the preeminent need for the public defender to be free from judicial interference. OSPD asserts that the trial court’s action conflicts with state laws designed to ensure indigent defendants receive effective assistance of counsel, particularly the statutes prohibiting the outside interference in the internal management of public defender offices and the 1
assignment of cases to these offices. OSPD also addresses the Constitutional implication of the trial court’s actions. To restate the questions succinctly: May a circuit judge, in violation of statute, MS Const. Art. 3, § 26, and the Sixth Amendment, circumvent the established public defender office in assignment of counsel? May a circuit judge, in violation of statute, interfere with the internal management of the office of public defender, specifically the supervision of staff? Does judicial interference in the administrative functions of the public defender office violate the constitutional separation of powers? In order to ensure that these important interests are considered, OSPD submits this brief as amicus curiae. ARGUMENT The controversy between Hinds County Circuit Judge Jeff Weill (Judge) and the Hinds County Office of the Public Defender (Office) has apparently been ongoing for several months. Based on pleadings filed by the Office and letters from Judge, it is apparent that the Judge is displeased with an assistant public defender assigned to his court. He twice requested, as he is not prevented from doing, to have the Public Defender reassign this attorney. However, after having accommodated the first request, the Public Defender did not believe she could accommodate the second request consistently with the office’s needs, and respectfully declined it. Again, OSPD does not take a position on this underlying dispute. It is our understanding that actions are pending in other forums that address the claims and counterclaims made by the Judge and the Assistant Public Defender (APD). The actions taken by the Judge after the Public Defender declined his request, including his conduct in court on March 16, 2015, are the only matters Amicus seeks to address.
2
When the Judge’s second request that the APD be removed from his court was not granted, the Judge transferred all cases from that APD to private counsel. This action violated separate provisions of the Public Defender enabling legislation, Miss. Code §§ 25-32-1 through 25-32-19. On March 16, 2015, during an arraignment docket, the Judge expanded his earlier acts to bar the Office of the Public Defender from appearing in his court, even for clients they had been previously representing. While the Judge claimed that the Office had previously stated it would not appear at arraignments in his court, the Public Defender – the only person authorized to set policy for the Office – attempted to inform the court that the Office always fully intended to perform the full scope of its duties under the Board of Supervisors Resolution establishing the Office. The Public Defender, following one of her assistants,1 advised the court that its statement that the Office had declined to appear on arraignments was incorrect. The court did not allow her to make a record on this apparent misunderstanding. Obviously the Office intended to perform its full statutory and constitutional obligations, as the Public Defender and her assistants were present and asserting their clients’ rights. Under Mississippi law, it must be noted that the fundamental issue is not whether the Office was formally appointed in the lower court or by the Judge. When a defendant signs an affidavit attesting that he is indigent the person becomes the client of the public defender. Miss. Code § 25-32-9 (the public defender shall represent said person) (emphasis added). Only if a court later determines the defendant is not indigent, Miss. Code § 25-32-9, or that there is a conflict with the Public Defender or other “good cause” will the Office be removed. Miss. Code § 25-32-13.
1
This APD was Greg Spore not Alison Kelly. Kelly is the APD that the Judge was attempting to have moved from his court.
3
This Court has held the right to counsel attaches in Mississippi at the accusatory stage, earlier than even the United States Constitutional guarantees of the Sixth Amendment. At the very least, the right attaches at initial appearance. See Page v. State, 495 So. 2d 436, 439 (Miss. 1986) (totally irrational to suggest that a defendant bound over to grand jury had not been accused), and Rothgery v. Gillespie County, Texas, 554 U.S. 191, 213, 128 S. Ct. 2578, 2592, 171 L. Ed. 2d 366 (2008) (a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel). Accordingly, the Public Defender’s appointment at initial appearance comports with both the Mississippi and federal Constitutional guarantees. The circuit court must therefore have “good cause” to interfere with the attorney client relationship already established at the time of arraignment. Thus, in answer to the first question, a circuit court may not circumvent the established public defender office in assignment of counsel without good cause. Even assuming per arguendo that the Judge had “good cause” to remove APD Kelly from one or more cases based on conduct she exhibited in a specific case, such a finding would not provide a basis for the Judge to interfere with the Public Defender’s authority to assign duties or exercise supervision over APD Kelly. Moreover it provides no authority for circumventing the statutorily established public defender system. Simply, there is no provision in law for a prospective finding on any of the factors justifying removal of the public defender. To the contrary, the Mississippi Legislature, by general law first enacted in 1979, authorized the board of supervisors of any county … by order spread upon their minutes … to establish an office of public defender, the board of supervisors or boards of supervisors are authorized and empowered, in their discretion, to establish the office, provide office space, personnel and funding for the office, and to perform any and all functions necessary for the efficient operation of such an office to the 4
end that adequate legal defense for indigent persons accused of crime shall be provided at every critical stage of their cases as an alternative to court appointed counsel. Miss. Code § 25-32-1.2 The Hinds County Board of Supervisors took advantage of this law and established the Office in 1991 and it has continued operations as the primary indigent defender in Hinds County since that date. The delegation of the authority to establish and operate the Office to the Board of Supervisors is consistent with the Constitutional Separation of Powers.3 The Judge’s attempt to interfere with the internal management of the Office is also a violation of Miss Code § 25-32-7. This provision of the Public Defender Act of 1979 was amended only last session to clarify that it is the Public Defender who controls staffing of cases within her Office. HB 273, Mississippi Legislature 2014 Regular Session. http://billstatus.ls. state.ms.us/2014/pdf/history/HB/HB0273.xml. The Legislative history4 on HB 273 makes it clear the Legislature intends the Office of Public Defender to be treated in an equivalent manner to the Office of District Attorney. In light of this, a case decided less than four months ago, Williams v. State, --- So.3d --(Miss. Dec. 11, 2014), 2013-IA-402-SCT, 2014 WL 7085959, is particularly relevant. In Williams this Court reversed and rendered an Order by Judge Weill in which he was attempting to remove the District Attorney from a case and replace him with a special prosecutor. Accordingly, just as a circuit judge cannot select his choice of prosecutor, he may not select his
“[T]o the end that adequate legal defense for indigent persons accused of crime shall be provided at every critical stage of their cases” clearly indicates the Legislature is enacting this law to guarantee the Sixth Amendment Right to Counsel is protected. 2
3
See State v. Quitman County, 807 So.2d 401 (Miss. 2001) (The authority and control over the expenditure of funds is a Legislative function and can only be interfered with by the judicial branch in absolute necessity to ensure the independent operation of the judiciary.) 4
See MC Law Legislative History Project recording of floor debate at http://law.mc.edu/legislature /bill_details.php?id=2584&session=2014
5
choice of defense counsel where the County Board of Supervisors has followed state statute and created the Office of Public Defender. Also relevant to assessing this matter is another recent decision: Lewis v. Hinds County Circuit Court, --- So.3d ---- (Feb. 19, 2015), No. 2013–CA–01842–SCT, 2015 WL 691293. Lewis involved a dispute between the Sheriff and the circuit court regarding the assignment and supervision of deputy sheriffs serving as bailiffs. The questions before this Court were whether there was clear statutory authority for the Sheriff to assign and set training requirements for bailiffs and whether the circuit court’s attempt to control the Sheriff’s decisions on management violated the doctrine of separation of powers under Article 1, §§ 1 and 2 of the Mississippi Constitution. The Court held the provisions of the circuit court orders that attempted to direct the Sheriff to assign bailiffs to specific judges and provided judicial control over removal of bailiffs from the courts were void as conflicting with statute and unconstitutional. Id. at ¶¶ 29, 30 and 32. Just as the Lewis Court concluded, this Court in this matter must hold that assistant public defenders are deputies of the [public defender]. ... The language of [Title 25, Chapter 32] is plain and unambiguous. The Legislature has empowered the [public defender] with the authority to appoint, remove, and compensate [assistant public defenders]. … [U]nder the Mississippi Constitution and statutory law, [Judge Weill’s actions in removing an assistant public defender from his court and refusing to allow the Public Defender and any assistants from representing all indigent defendants in his court] exceed[s] the power of the Hinds County Circuit Court and are therefore void. Thus, in answer to the second question, a circuit judge may not interfere with the internal management of the office of public defender, specifically the supervision of staff. Finally, regarding the separation of powers, as is discussed above, the Board of Supervisors was properly delegated the authority to establish and operate the Hinds County 6
Public Defender Office as the means to provide the effective representation to indigent defendants in Hinds County required by the Sixth Amendment. The United State Supreme Court has clearly stated that the independence of counsel to act as an adversary is an “indispensable element” of effective representation. See Ferri v. Ackerman, 444 U.S. 193, 204, 100 S. Ct. 402, 409, 62 L. Ed. 2d 355 (1979) (an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation). Indeed, the government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). State interference in providing counsel should be “very limited.” See Polk County v. Dodson, 454 U.S. 312, 327, 102 S. Ct. 445, 454, 70 L. Ed. 2d 509 (1981) (Burger, C.J. concurring) (“Under Gideon v. Wainwright, 372 U.S. 335, 82 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the government undertakes only to provide a professionally qualified advocate wholly independent of the government.”). Amicus OSPD asserts that no constitutionally effective assistance of counsel can be rendered when a judge interferes with independent representation in the manner complained of in the instant case: But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional. Powell v. Alabama, 287 U.S. 45, 61, 53 S. Ct. 55, 61, 77 L. Ed. 158 (1932).
7
The Public Defender is not part of the judiciary, but was created by the Hinds County Board of Supervisors, part of the executive branch. A judge of the circuit court should not and cannot be allowed to interfere in the administrative functions of any public defender office. The defendants involved in this matter deserve to have their right to independent counsel and the ambiguity of who is representing them resolved as soon as possible. Amicus OSPD respectfully requests this Court rule on this matter in an expedited manner. CONCLUSION The Office of State Public Defender respectfully requests that this Court grant relief ameliorating the violations identified here, or if it cannot do so without further briefing and argument, set this matter for further briefing and oral argument and grant Amicus leave to participate in oral argument. DATED this 25th day of March, 2015. OFFICE OF STATE PUBLIC DEFENDER /s/ Leslie S. Lee Leslie S. Lee, Miss. Bar #7765 STATE DEFENDER PO Box 3510 Jackson, MS 39207 601-576-4290 [email protected]
8
CERTIFICATE OF SERVICE I hereby certify that I have this day filed by means of the electronic case filing system the foregoing pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to all ECF participants in this cause is made. In addition, I have served a true and correct copy of it by United States Mail, postage prepaid upon the following: Hon. Michelle Purvis-Harris Hinds County Public Defender Hon. Alison Kelly, Assistant Public Defender 499 S President St. Ste 100 Jackson, Mississippi 39201
Hon. Robert Shuler Smith Hinds County District Attorney PO Box 22747 Jackson, MS 39225
Hon. Jeff Weill, Sr. Hinds Court Circuit Court Judge PO Box 22711 Jackson, MS 39225
Barbara Dunn Hinds County Circuit Court Clerk PO Box 327 Jackson, MS 39205
This the 25th day of March, 2015. /s/ Leslie S. Lee Leslie S. Lee, Miss. Bar #7765 STATE DEFENDER
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Mar 25 2015 16:40:22
2015-M-00397
Pages: 13
IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-M-00397 (Seeking a Writ of Prohibition to the Hinds County Circuit Court)
IN RE: Office Of The Hinds County Public Defender, et al
PETITIONERS
_______________________________________________________________
Brief of Amicus Curiae Office of State Public Defender ________________________________________________________________
OFFICE OF STATE PUBLIC DEFENDER By: Leslie S. Lee, Miss. Bar # 7765 State Defender PO Box 3510 Jackson, MS 39207 601-576-4290 [email protected]
TABLE OF CONTENTS PAGE TABLE OF CONTENTS .................................................................................................... i TABLE OF AUTHORITIES ............................................................................................. ii STATEMENT OF ISSUES ................................................................................................ ii INTERESTS OF AMICUS CURIAE ...................................................................................1 ARGUMENT .......................................................................................................................2 CONCLUSION ...................................................................................................................8 CERTIFICATE OF SERVICE ............................................................................................9
i
TABLE OF AUTHORITIES Cases Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) ................................. 7 Ferri v. Ackerman, 444 U.S. 193, 100 S. Ct. 402, 62 L. Ed. 2d 355 (1979) .................................. 7 Gideon v. Wainwright, 372 U.S. 335, 82 S.Ct. 792, 9 L.Ed.2d 799 (1963) ................................... 7 Lewis v. Hinds County Circuit Court, --- So.3d ---- (Feb. 19, 2015), No. 2013–CA–01842–SCT, 2015 WL 691293 ........................................................................................................................ 6 Page v. State, 495 So. 2d 436 (Miss. 1986) .................................................................................... 4 Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) .......................... 7 Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932)............................................. 7 Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008) .. 4 State v. Quitman County, 807 So.2d 401 (Miss. 2001)................................................................... 5 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)...................... 7 Williams v. State, --- So.3d --- (Miss. Dec. 11, 2014), 2013-IA-402-SCT, 2014 WL 7085959 ..... 5 Statutes Miss Code § 25-32-7 ....................................................................................................................... 5 Miss. Code § 25-32-1 ...................................................................................................................... 5 Miss. Code § 25-32-13 .................................................................................................................... 3 Miss. Code § 25-32-9 ...................................................................................................................... 3 Miss. Code § 99-18-1 (7). ............................................................................................................... 1 Miss. Code § 99-40-1 (4)(a)............................................................................................................ 1 Miss. Code § 99-40-1 (4)(a)(iii)...................................................................................................... 1 Miss. Code §§ 25-32-1 through 25-32-19....................................................................................... 3 Constitutional Provisions MS Const. Art. 1, §§ 1 and 2 .......................................................................................................... 6 MS Const. Art. 3, § 26 .................................................................................................................... 2 U.S. Const. Amend. VI ............................................................................................................... 2, 6 Other Authorities HB 273, Mississippi Legislature 2014 Regular Session. http://billstatus.ls. state.ms.us/2014/pdf/history/HB/HB0273.xml. .......................................................................... 5 MC Law Legislative History Project http://law.mc.edu/legislature /bill_details.php?id=2584&session=2014................................................................................... 5
ii
STATEMENT OF ISSUES May a circuit judge, in violation of statute, MS Const. Art. 3, § 26, and the Sixth Amendment, circumvent the established public defender office in assignment of counsel? May a circuit judge, in violation of statute, interfere with the internal management of the office of public defender, specifically the supervision of staff? Does judicial interference in the administrative functions of the public defender office violate the constitutional separation of powers?
iii
IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-M-00397 (Seeking a Writ of Prohibition to the Hinds County Circuit Court)
IN RE: Office Of The Hinds County Public Defender, et al
PETITIONERS
BRIEF OF AMICUS CURIAE OFFICE OF STATE PUBLIC DEFENDER INTERESTS OF AMICUS CURIAE The Office of State Public Defender (OSPD) is a state agency created by the Mississippi Legislature to among other duties “develop plans and proposals for further development of a statewide public defender system … and to act as spokesperson for all matters relating to indigent defense representation.” Miss. Code § 99-18-1 (7). The agency is also mandated to provide “information for the Legislature pertaining to the needs of public defenders practicing in all state, county, municipal and youth courts.” Miss. Code § 99-40-1 (4)(a)(iii). The broad legislative mandate requires OSPD to work with all local public defenders to provide education, training and technical assistance. Miss. Code § 99-40-1 (4)(a). Based on these mandates OSPD has a unique and compelling interest in the efficient and effective operation of the indigent defense system in Mississippi. OSPD submits this brief in support of the Hinds County Office of the Public Defender’s Motion for Writ of Prohibition to express concerns raised by this controversy related to the statewide indigent defense function. OSPD is not taking a position on the specific facts of this case, but believes the correct application of the law is paramount to insure uniform recognition throughout the State on the preeminent need for the public defender to be free from judicial interference. OSPD asserts that the trial court’s action conflicts with state laws designed to ensure indigent defendants receive effective assistance of counsel, particularly the statutes prohibiting the outside interference in the internal management of public defender offices and the 1
assignment of cases to these offices. OSPD also addresses the Constitutional implication of the trial court’s actions. To restate the questions succinctly: May a circuit judge, in violation of statute, MS Const. Art. 3, § 26, and the Sixth Amendment, circumvent the established public defender office in assignment of counsel? May a circuit judge, in violation of statute, interfere with the internal management of the office of public defender, specifically the supervision of staff? Does judicial interference in the administrative functions of the public defender office violate the constitutional separation of powers? In order to ensure that these important interests are considered, OSPD submits this brief as amicus curiae. ARGUMENT The controversy between Hinds County Circuit Judge Jeff Weill (Judge) and the Hinds County Office of the Public Defender (Office) has apparently been ongoing for several months. Based on pleadings filed by the Office and letters from Judge, it is apparent that the Judge is displeased with an assistant public defender assigned to his court. He twice requested, as he is not prevented from doing, to have the Public Defender reassign this attorney. However, after having accommodated the first request, the Public Defender did not believe she could accommodate the second request consistently with the office’s needs, and respectfully declined it. Again, OSPD does not take a position on this underlying dispute. It is our understanding that actions are pending in other forums that address the claims and counterclaims made by the Judge and the Assistant Public Defender (APD). The actions taken by the Judge after the Public Defender declined his request, including his conduct in court on March 16, 2015, are the only matters Amicus seeks to address.
2
When the Judge’s second request that the APD be removed from his court was not granted, the Judge transferred all cases from that APD to private counsel. This action violated separate provisions of the Public Defender enabling legislation, Miss. Code §§ 25-32-1 through 25-32-19. On March 16, 2015, during an arraignment docket, the Judge expanded his earlier acts to bar the Office of the Public Defender from appearing in his court, even for clients they had been previously representing. While the Judge claimed that the Office had previously stated it would not appear at arraignments in his court, the Public Defender – the only person authorized to set policy for the Office – attempted to inform the court that the Office always fully intended to perform the full scope of its duties under the Board of Supervisors Resolution establishing the Office. The Public Defender, following one of her assistants,1 advised the court that its statement that the Office had declined to appear on arraignments was incorrect. The court did not allow her to make a record on this apparent misunderstanding. Obviously the Office intended to perform its full statutory and constitutional obligations, as the Public Defender and her assistants were present and asserting their clients’ rights. Under Mississippi law, it must be noted that the fundamental issue is not whether the Office was formally appointed in the lower court or by the Judge. When a defendant signs an affidavit attesting that he is indigent the person becomes the client of the public defender. Miss. Code § 25-32-9 (the public defender shall represent said person) (emphasis added). Only if a court later determines the defendant is not indigent, Miss. Code § 25-32-9, or that there is a conflict with the Public Defender or other “good cause” will the Office be removed. Miss. Code § 25-32-13.
1
This APD was Greg Spore not Alison Kelly. Kelly is the APD that the Judge was attempting to have moved from his court.
3
This Court has held the right to counsel attaches in Mississippi at the accusatory stage, earlier than even the United States Constitutional guarantees of the Sixth Amendment. At the very least, the right attaches at initial appearance. See Page v. State, 495 So. 2d 436, 439 (Miss. 1986) (totally irrational to suggest that a defendant bound over to grand jury had not been accused), and Rothgery v. Gillespie County, Texas, 554 U.S. 191, 213, 128 S. Ct. 2578, 2592, 171 L. Ed. 2d 366 (2008) (a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel). Accordingly, the Public Defender’s appointment at initial appearance comports with both the Mississippi and federal Constitutional guarantees. The circuit court must therefore have “good cause” to interfere with the attorney client relationship already established at the time of arraignment. Thus, in answer to the first question, a circuit court may not circumvent the established public defender office in assignment of counsel without good cause. Even assuming per arguendo that the Judge had “good cause” to remove APD Kelly from one or more cases based on conduct she exhibited in a specific case, such a finding would not provide a basis for the Judge to interfere with the Public Defender’s authority to assign duties or exercise supervision over APD Kelly. Moreover it provides no authority for circumventing the statutorily established public defender system. Simply, there is no provision in law for a prospective finding on any of the factors justifying removal of the public defender. To the contrary, the Mississippi Legislature, by general law first enacted in 1979, authorized the board of supervisors of any county … by order spread upon their minutes … to establish an office of public defender, the board of supervisors or boards of supervisors are authorized and empowered, in their discretion, to establish the office, provide office space, personnel and funding for the office, and to perform any and all functions necessary for the efficient operation of such an office to the 4
end that adequate legal defense for indigent persons accused of crime shall be provided at every critical stage of their cases as an alternative to court appointed counsel. Miss. Code § 25-32-1.2 The Hinds County Board of Supervisors took advantage of this law and established the Office in 1991 and it has continued operations as the primary indigent defender in Hinds County since that date. The delegation of the authority to establish and operate the Office to the Board of Supervisors is consistent with the Constitutional Separation of Powers.3 The Judge’s attempt to interfere with the internal management of the Office is also a violation of Miss Code § 25-32-7. This provision of the Public Defender Act of 1979 was amended only last session to clarify that it is the Public Defender who controls staffing of cases within her Office. HB 273, Mississippi Legislature 2014 Regular Session. http://billstatus.ls. state.ms.us/2014/pdf/history/HB/HB0273.xml. The Legislative history4 on HB 273 makes it clear the Legislature intends the Office of Public Defender to be treated in an equivalent manner to the Office of District Attorney. In light of this, a case decided less than four months ago, Williams v. State, --- So.3d --(Miss. Dec. 11, 2014), 2013-IA-402-SCT, 2014 WL 7085959, is particularly relevant. In Williams this Court reversed and rendered an Order by Judge Weill in which he was attempting to remove the District Attorney from a case and replace him with a special prosecutor. Accordingly, just as a circuit judge cannot select his choice of prosecutor, he may not select his
“[T]o the end that adequate legal defense for indigent persons accused of crime shall be provided at every critical stage of their cases” clearly indicates the Legislature is enacting this law to guarantee the Sixth Amendment Right to Counsel is protected. 2
3
See State v. Quitman County, 807 So.2d 401 (Miss. 2001) (The authority and control over the expenditure of funds is a Legislative function and can only be interfered with by the judicial branch in absolute necessity to ensure the independent operation of the judiciary.) 4
See MC Law Legislative History Project recording of floor debate at http://law.mc.edu/legislature /bill_details.php?id=2584&session=2014
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choice of defense counsel where the County Board of Supervisors has followed state statute and created the Office of Public Defender. Also relevant to assessing this matter is another recent decision: Lewis v. Hinds County Circuit Court, --- So.3d ---- (Feb. 19, 2015), No. 2013–CA–01842–SCT, 2015 WL 691293. Lewis involved a dispute between the Sheriff and the circuit court regarding the assignment and supervision of deputy sheriffs serving as bailiffs. The questions before this Court were whether there was clear statutory authority for the Sheriff to assign and set training requirements for bailiffs and whether the circuit court’s attempt to control the Sheriff’s decisions on management violated the doctrine of separation of powers under Article 1, §§ 1 and 2 of the Mississippi Constitution. The Court held the provisions of the circuit court orders that attempted to direct the Sheriff to assign bailiffs to specific judges and provided judicial control over removal of bailiffs from the courts were void as conflicting with statute and unconstitutional. Id. at ¶¶ 29, 30 and 32. Just as the Lewis Court concluded, this Court in this matter must hold that assistant public defenders are deputies of the [public defender]. ... The language of [Title 25, Chapter 32] is plain and unambiguous. The Legislature has empowered the [public defender] with the authority to appoint, remove, and compensate [assistant public defenders]. … [U]nder the Mississippi Constitution and statutory law, [Judge Weill’s actions in removing an assistant public defender from his court and refusing to allow the Public Defender and any assistants from representing all indigent defendants in his court] exceed[s] the power of the Hinds County Circuit Court and are therefore void. Thus, in answer to the second question, a circuit judge may not interfere with the internal management of the office of public defender, specifically the supervision of staff. Finally, regarding the separation of powers, as is discussed above, the Board of Supervisors was properly delegated the authority to establish and operate the Hinds County 6
Public Defender Office as the means to provide the effective representation to indigent defendants in Hinds County required by the Sixth Amendment. The United State Supreme Court has clearly stated that the independence of counsel to act as an adversary is an “indispensable element” of effective representation. See Ferri v. Ackerman, 444 U.S. 193, 204, 100 S. Ct. 402, 409, 62 L. Ed. 2d 355 (1979) (an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation). Indeed, the government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). State interference in providing counsel should be “very limited.” See Polk County v. Dodson, 454 U.S. 312, 327, 102 S. Ct. 445, 454, 70 L. Ed. 2d 509 (1981) (Burger, C.J. concurring) (“Under Gideon v. Wainwright, 372 U.S. 335, 82 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the government undertakes only to provide a professionally qualified advocate wholly independent of the government.”). Amicus OSPD asserts that no constitutionally effective assistance of counsel can be rendered when a judge interferes with independent representation in the manner complained of in the instant case: But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional. Powell v. Alabama, 287 U.S. 45, 61, 53 S. Ct. 55, 61, 77 L. Ed. 158 (1932).
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The Public Defender is not part of the judiciary, but was created by the Hinds County Board of Supervisors, part of the executive branch. A judge of the circuit court should not and cannot be allowed to interfere in the administrative functions of any public defender office. The defendants involved in this matter deserve to have their right to independent counsel and the ambiguity of who is representing them resolved as soon as possible. Amicus OSPD respectfully requests this Court rule on this matter in an expedited manner. CONCLUSION The Office of State Public Defender respectfully requests that this Court grant relief ameliorating the violations identified here, or if it cannot do so without further briefing and argument, set this matter for further briefing and oral argument and grant Amicus leave to participate in oral argument. DATED this 25th day of March, 2015. OFFICE OF STATE PUBLIC DEFENDER /s/ Leslie S. Lee Leslie S. Lee, Miss. Bar #7765 STATE DEFENDER PO Box 3510 Jackson, MS 39207 601-576-4290 [email protected]
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CERTIFICATE OF SERVICE I hereby certify that I have this day filed by means of the electronic case filing system the foregoing pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to all ECF participants in this cause is made. In addition, I have served a true and correct copy of it by United States Mail, postage prepaid upon the following: Hon. Michelle Purvis-Harris Hinds County Public Defender Hon. Alison Kelly, Assistant Public Defender 499 S President St. Ste 100 Jackson, Mississippi 39201
Hon. Robert Shuler Smith Hinds County District Attorney PO Box 22747 Jackson, MS 39225
Hon. Jeff Weill, Sr. Hinds Court Circuit Court Judge PO Box 22711 Jackson, MS 39225
Barbara Dunn Hinds County Circuit Court Clerk PO Box 327 Jackson, MS 39205
This the 25th day of March, 2015. /s/ Leslie S. Lee Leslie S. Lee, Miss. Bar #7765 STATE DEFENDER
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