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Sunday, May 19, 2024
Criminal Justice

Just 1 in 5 people assigned a lawyer in Mississippi court

Original article by ProPublica.

Mississippi has long been known as one of the worst states for providing a lawyer to any defendant who can’t afford one. In one rural county, most defendants in a lower court went without any lawyer before their cases were sent to a grand jury.

This article was produced in partnership with the Northeast Mississippi Daily Journal, formerly a member of ProPublica’s Local Reporting Network, and The Marshall ProjectSign up for Dispatches to get stories like this one as soon as they are published.

The right to an attorney is fundamental to the U.S. justice system. Yet, in a small Mississippi court off the interstate between Jackson and Memphis, that right is tenuous.

The two judges in Yalobusha County Justice Court appointed lawyers for just 20% of the five dozen felony defendants who came before them in 2022, according to a review of court records; nationally, experts estimate that lawyers are appointed to at least 80% of felony defendants at some point in the legal process because they’re deemed poor. In this court, the way these two judges decide who gets a court-appointed attorney appears to violate state rules meant to protect defendants’ rights. A few defendants have even been forced to represent themselves in key hearings.

Despite the Sixth Amendment’s guarantee that everyone gets a lawyer even if they’re too poor to pay for one, most felony defendants in this court went without any representation at all before their cases were forwarded to a grand jury, according to a review of one full year of court files by the Northeast Mississippi Daily Journal, The Marshall Project and ProPublica. (Read more about how we analyzed the court’s appointment rate in our methodology.)

“That is a huge problem,” said André de Gruy, who leads a state office that handles death penalty cases and felony appeals but has no power over local public defense. “I believe almost every one of those people would like a lawyer and is unable to afford one.”

For decades, civil rights advocates and legal reformers have complained that Mississippi is among the worst states in the country in providing attorneys for poor criminal defendants. It’s one of a handful of states where public defense is managed and funded almost entirely by local governments, and the way they do so varies greatly from county to county. Defendants in some places see appointed lawyers quickly and remain represented thereafter; elsewhere, sometimes right over the county line, defendants can wait months just to see a lawyer or can go long periods without having one at all.

The Mississippi Supreme Court, which oversees how state courts operate, has issued several rules in recent years that were intended to drive improvements. But it is up to locally elected judges to carry out those mandates, and there’s no oversight to make sure they’re doing it right.

Much like Mississippi, Texas places primary responsibility for public defense on counties. A state commission in Texas investigates the counties with low appointment rates; a felony appointment rate below 50% would raise serious questions about a county’s compliance with state law, according to current and former officials there. In Mississippi, state officials don’t even know how often judges appoint attorneys.

When people are arrested on felonies in Yalobusha County, a rural area in north Mississippi with just 12,400 residents, many have initial hearings in the county’s Justice Court. Judges there primarily handle misdemeanors. But when a felony defendant appears in their court, it falls to Judge Trent Howell and Judge Janet Caulder to deliver on the Sixth Amendment’s promise.

Caulder handles many initial hearings, where she’s required by state rules to find out whether a defendant is too poor to afford an attorney and to appoint one if so. Although Caulder informs defendants of their right to an attorney, she said she doesn’t ask if they can afford one and appoints one only if they request it.

“I don’t question them. I don’t try to force indigency on them,” she said. (Neither she nor Howell would comment on their appointment rate.)

Caulder and Howell are supposed to operate by the same rules as judges in circuit court, who handle felony cases from indictment through trial. But that doesn’t appear to be what’s happening: 15 of the cases that Howell and Caulder handled in 2022 are now in circuit court; just four of those defendants were appointed attorneys in Justice Court, but 13 were provided with lawyers when their cases moved to circuit court.

I don’t question them. I don’t try to force indigency on them.

Judge Janet Caulder

Explaining why he is sometimes reluctant to appoint an attorney, Howell told the news outlets that he has a “fiduciary duty” to spend taxpayers’ money wisely. He said he’s more likely to provide a lawyer if a defendant is in jail because a lawyer can seek a lower bond to get their client released.

On the other hand, Howell said, “If they’re arrested on a felony and they’ve made bond, I’m not too quick to pull the trigger on a public defender — particularly if they’ve made a high bond.” State rules don’t allow Howell to consider whether someone made bond when he decides if he will appoint an attorney, but he said that doing so was just “human nature.”

That’s what happened when Kayla Williams, a single mother with no stable job, came before Howell last summer on a charge of shooting and wounding her stepfather in a tussle. Williams, whose mental health issues include bipolar disorder, has been arrested three times in the past year or so after confrontations with others. In two hearings related to the shooting charge, Howell refused to appoint an attorney even though she said she couldn’t afford one, according to Williams, as well as a lawyer who observed one hearing and a reporter who observed another.

In an interview, Howell defended his decision, which he made without asking a single question about Williams’ finances: “She just didn’t strike me as an indigent person.”

Though Mississippi doesn’t have any guidelines for how judges should decide who is poor enough to get a court-appointed lawyer, a half-dozen legal experts who reviewed the facts of Williams’ case said she appears to qualify and that her constitutional rights have been violated.

Problems getting a court-appointed lawyer began soon after she was arrested.

On June 12, Williams’ elderly stepfather, whose name is Lawyer Crowder, was pulled over by a Yalobusha County sheriff’s deputy because he was weaving slowly down a rural road. Crowder, whose leg was bleeding, told the deputy that his stepdaughter had shot him. He had the pistol she used with him.

Around the same time, Williams called 911 and said she had shot Crowder after he hit her, according to a dispatch log. Deputies arrested her and charged her with aggravated assault against a family member, a felony with a possible prison sentence of 20 years. (While Crowder told the news outlets that Williams started the fight and that he believes she meant to shoot him, he said: “I don’t want her put away. I want her to get some help.”)

At Williams’ first court hearing a couple of days later, Caulder told her she had a right to a court-appointed lawyer, but the judge didn’t ask Williams if she could hire one herself. The state’s rules required Caulder to make a decision that day: “The determination of the right to appointed counsel, and the appointment of such counsel, is to be made no later than at the indigent defendant’s first appearance before a judge.”

Caulder did gather the facts of Williams’ finances to set conditions for her release from jail — the same sort of information that judges use when deciding whether to appoint a lawyer. According to court records, the judge knew the 22-year-old mother had no job at the time and no place of her own to live.

What I witnessed in the courthouse in Water Valley that day was not a judge carefully exploring the ability of a defendant to afford a lawyer. … What I saw was an immediate rejection of her request for assistance without any inquiry whatsoever into her ability to pay.

Civil rights attorney Cliff Johnson

That should have been enough to prompt Caulder to appoint a lawyer, said de Gruy, the head of the state public defense office. Caulder, however, said she believes she complied with court rules because she told Williams of her rights. She always does that, she said, and she’s always willing to consider a request for a lawyer.

Caulder shouldn’t force defendants to ask for a lawyer, said William Waller, a retired chief justice of the Mississippi Supreme Court who helped write the state’s court rules. That “is absolutely not right,” he said, because many defendants don’t know how or when to ask. “The judge makes the inquiry” to learn whether a defendant can afford an attorney, he said.

Williams’ friends and family paid a bail bond company to post a $7,500 bond to get her out of jail. Her next opportunity to get a lawyer came a month later, when she walked into Howell’s courtroom in Water Valley for a hearing.

Cliff Johnson, a civil rights attorney and law professor, happened to be in the courtroom that July day doing pro bono work for an animal shelter. Williams asked for a lawyer more than once, Johnson said. Howell said he wasn’t going to appoint one at that time.

“What I witnessed in the courthouse in Water Valley that day was not a judge carefully exploring the ability of a defendant to afford a lawyer,” Johnson said. “What I saw was an immediate rejection of her request for assistance without any inquiry whatsoever into her ability to pay.”

In an interview, Howell defended his decision in that hearing and a subsequent one: “I think that what I did at this particular point for this lady was within my discretion and proper.” He suggested that hearings in his court aren’t as critical to the outcome of a case as those in circuit court. However, the state’s rules say poor defendants must have a lawyer throughout the process.

Howell did tell Williams she could ask for a preliminary hearing, an optional hearing that defendants can request to force a prosecutor to show that there was probable cause for an arrest.

Front of courthouse in Water Valley, Mississippi
The courthouse in Water Valley, Mississippi Credit: Rory Doyle for ProPublica

That’s how Williams found herself the following month in a crowded conference room that served as a courtroom, sitting at a table with the deputy who arrested her and the prosecutor handling her case. The prosecutor asked if she had an attorney.

“No, because the judge has not provided me with one,” Williams replied. Howell didn’t respond. After a brief exchange, the judge said he was ready to proceed with the hearing.

His decision to hold that hearing for a defendant who didn’t have a lawyer was particularly egregious, according to law professors, civil rights attorneys and a legal consultant. The U.S. Supreme Court requires that appointed counsel be present with a poor defendant at key hearings, called critical stages, at which the defendant’s rights could be impaired. Experts agree that a preliminary hearing in Mississippi is considered a critical stage.

“That is clearly a violation” of her rights, said David Carroll, who has studied Mississippi’s defense system as executive director of the Sixth Amendment Center, a Boston-based nonprofit research center.

Without an attorney, Williams handled the hearing herself. She stammered as she cross-examined the deputy, who acknowledged that the case hinged largely on the stepfather’s account. “I’m nervous,” she said.

After the deputy testified, Howell told Williams there was no need for her to testify. Anything she said could be used against her later, he said, and he was prepared to rule that the case could move forward.

“I want to tell my side of the story,” Williams said.

“You’re going to testify over my recommendation,” the judge responded.

Williams did testify, stressing her belief that the gun was fired by accident. Testifying was a risky move, one that a defense lawyer likely would have prevented, said Jonathan Rapping, who runs the national nonprofit public defender training organization Gideon’s Promise. Williams’ hearing, he said, was “a textbook example of why you need a lawyer.”

After Howell ordered that Williams’ case could proceed to a grand jury, she made a direct appeal: “Can you appoint me a lawyer? Because I can’t afford one.”

Howell said that if she were eventually indicted, a judge in circuit court would decide whether she would be eligible for appointed counsel. But that might not happen, the judge said, until the next grand jury was convened in December, four months away.

Signed order from the judge
Justice Court Judge Trent Howell signed this order forwarding Williams’ case for consideration by a grand jury. A handwritten note on the order says the court determined that Williams wasn’t indigent, but Howell didn’t ask Williams any questions to learn why she said she couldn’t afford an attorney. Credit: Obtained by the Northeast Mississippi Daily Journal, The Marshall Project and ProPublica. Highlighted by ProPublica.

Months later, as Williams waited for an update on that case, she had a different experience in another county. She had been arrested on two felony counts of arson after she acknowledged lighting two small fires in a homeless shelter she was staying in, according to a police report. Within 48 hours, she had a lawyer in Tupelo Municipal Court, which, unlike Yalobusha County Justice Court, employs a full-time public defender.

She had seen for herself what criminal justice reformers have long argued is a key problem with Mississippi’s locally controlled public defense system: While some local courts swiftly deliver lawyers to poor criminal defendants, others delay and deny representation for months without any oversight by the state. Multiple commissions and task forces have tried to address shortcomings in the public defense system over the years, but the Legislature hasn’t acted. So the state Supreme Court has wielded its authority over the courts below it.

Though its rules are mandatory, Mississippi’s Supreme Court relies on judges across the state to implement them. Those local judges don’t have a good track record, the Daily Journal, The Marshall Project and ProPublica have found.

In 2017, the Supreme Court put all Mississippi courts under the same rules. Among them: Judges in each court would have to write down how they provide attorneys for poor defendants. The Supreme Court would review those policies and approve them.

Six years later, the first of the state’s 23 circuit courts complied. Since then, just two more have filed plans.

A similar lack of compliance emerged last summer, when the court took action to address poor defendants being left without legal representation between their initial court hearings and an indictment, a period that often lasts months and sometimes years.

We don’t hear from many places other than Mississippi of judges simply ignoring or deferring the question of whether the right to counsel applies.

—Lisa M. Wayne, executive director of the National Association of Criminal Defense Lawyers

A revised rule aims to eliminate that gap in representation — which critics have called the “dead zone” — by preventing a lawyer from leaving a case unless another has already taken over. On the eve of last summer’s deadline to comply, many local officials told the news outlets that they were unaware of the rule or contended they didn’t need to change their current practice.

But it’s not the Supreme Court’s role to go out and make sure judges follow these rules, a justice told legislators last fall. Although an individual defendant can petition to have their case dismissed if they have been denied a lawyer, the only way, outside of a lawsuit, to hold judges accountable for their actions is to file a complaint with a state judicial commission. The commission hasn’t publicly sanctioned any judges for denial of counsel in at least a decade.

In 2014, Mississippi’s Scott County was sued for practices similar to those in Yalobusha’s Justice Court. The county settled the suit in 2017 and, without admitting fault, agreed to hire a chief public defender and ensure that when people were arrested on a felony charge, they were provided with the paperwork to request a lawyer.

“We don’t hear from many places other than Mississippi of judges simply ignoring or deferring the question of whether the right to counsel applies,” said Lisa M. Wayne, executive director of the National Association of Criminal Defense Lawyers.

Johnson, the civil rights law professor, was among those who argued for the Supreme Court’s recent move to address the dead zone. He has argued that there’s important defense work to be done as defendants wait to be indicted, a view that puts him at odds with many judges and lawyers in Mississippi. The Supreme Court’s rule change went into effect in July; about a week later, he saw Howell deny Williams’ requests for an attorney.

“My fear is that this happens far more often than we know,” Johnson said. “I was reminded quickly that change comes hard in Mississippi.”

Howell, however, said he wants to go back to what he called “the old way,” to a time when the Supreme Court hadn’t spelled out so many procedural steps to follow before an indictment.

His view on the change that Johnson argued for, meant to ensure that a poor defendant always has a lawyer from arrest to trial? “Hopefully,” he said, “the Supreme Court will come down and modify that rule.”

Sometimes I get overwhelmed, but most of the time I’m just numb. … I’m tired. I’m only 22, but I feel like I’m 55.

Kayla Williams

Williams hasn’t gotten any updates on the case involving her stepfather since she saw Howell last summer. After repeatedly calling Yalobusha County officials, she recently learned that she hadn’t been indicted by the December grand jury there. It’s unclear when, or even if, she will be. Prosecutors in Mississippi face no deadline to seek an indictment, and the grand jury in that part of Yalobusha County typically meets three times a year. By the time the most recent grand jury met this month, she was in jail on the latest charges and couldn’t call anyone to check on last summer’s case.

“Sometimes I get overwhelmed, but most of the time I’m just numb,” Williams said. ”I’m tired. I’m only 22, but I feel like I’m 55.” If she had an attorney, Williams said, “I would understand more and have more trust” in the legal process.

But after she appeared in Tupelo Municipal Court on the arson charges, she said, “I actually had a lawyer this time.” In all the months she had been speaking to the news outlets, it was the first time she felt that the court system had worked the way she thought it was supposed to. In an interview from jail, she said that the public defender had explained what would happen in court and argued for a lower bond, which was eventually set at $30,000. “He was really informative,” she said, “and made things seem a little bit better and like I wasn’t by myself.”

How We Reported This Story

The state of Mississippi does not collect data on how often judges provide an attorney to criminal defendants who are too poor to afford their own. Many counties don’t know that information either, even though each controls its own public defense system.

A task force that met from 2015 to 2018 found that it could not fully evaluate public defense in the state without knowing how often attorneys were appointed to indigent defendants. State officials surveyed circuit clerks, asking them to estimate their appointment rates. Circuit court clerks in 53 of 82 counties responded; the vast majority, including Yalobusha’s, estimated appointment rates of 75% or more in circuit court.

However, people arrested on felony charges make their first court appearance in lower courts, where judges are required to evaluate their ability to pay for an attorney and appoint one if needed. These courts handle only hearings that precede an indictment, after which cases are transferred to circuit court. In Yalobusha County, people arrested for a felony can have a first appearance in Water Valley Municipal Court or the county Justice Court.

To understand how frequently judges in Yalobusha County’s Justice Court appointed lawyers for defendants, a reporter traveled to the court clerk’s office and pulled the files for every felony case that was opened in 2022. We chose cases from 2022 because it was the most recent full calendar year and every case had had at least one opportunity to be presented to a grand jury for a possible indictment. We also reviewed files in another clerk’s office and billing records for attorneys appointed in Justice Court. We found 63 cases in which court records indicated that defendants appeared before a judge in Justice Court.

For each case, a reporter logged various facts, including the defendant’s name, the charge, hearing dates, the judge or judges that heard the case, and whether the file included an indigency affidavit, a judge’s order appointing an attorney or a letter from a lawyer stating that they had been retained in the case.

We counted the number of defendants who were provided counsel in Justice Court. (Defendants who appeared in court multiple times were counted once, even if they appeared on unrelated charges.) This number was used to calculate an appointment rate for 2022: 20%. In the majority of cases — 61% — the defendant had no attorney at all. (In a couple of cases, they waived their right to an attorney.)

In a few cases, notes in case files say that defendants told a judge they had hired an attorney or intended to, but there are no records showing they did so. We counted those defendants as privately represented, based on the case notes.

We excluded two cases from our analysis because we could not determine whether the lawyer listed had been appointed or hired.

Our reporter also checked Mississippi’s online court database to see how many of the 2022 cases had been moved to circuit court and how many of those defendants had been appointed lawyers there.

This article was originally published by Propublica and republished here, with permission, under a Creative Commons license.

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