‘The system is not designed for you to win': Underfunded public defender system penalizes Mississippians

by Zhu Wu, Mississippi Center for Investigative Reporting, Mississippi Today
October 31, 2022

For over 20 years, Stephanie Mallette has served as a public defender working on part-time contracts with Oktibbeha and Webster counties in Mississippi. 

Like most public defenders in Mississippi, Mallette was appointed by a judge. She represented an unlimited number of defendants for a fixed payment that often did not cover the cost of investigators or expert witnesses for the cases.

Many times when Mallette filed a motion for her client she said she thought twice to make sure she could prove to the judge she was not wasting time and money.

“My first priority is to my clients, but that is always balanced and tempered against how bad this is going to piss the judge off,” she said.

Mallette's experience is not unique. In Mississippi, attorneys who represent the indigent in criminal cases have to deal with an underfunded public-defender system that lacks statewide funding and oversight. In an ideal criminal justice system, the three components, law enforcement, prosecution and defense would be balanced in order to work fairly. But Mississippi spends significantly less money on the public defender system than its counterpart, the district attorney's offices. 

This funding discrepancy results in a decentralized indigent defense system that fails to provide state oversight and ensure independence from the judiciary. Since the system allows judges in counties without a funded public defender's office to have control over how attorneys are chosen and compensated, indigent defense attorneys might fear that when they push too hard, they will lose their job. 

“Someone might say you need to Don Quixote everything,” Mallette said, “but if they're gonna get rid of me, then I can't help anybody.” 

READ MORE: Black Americans are seven times more likely to be wrongfully convicted

‘People don't see what's happening'

When facing charges that could lead to imprisonment, people have the constitutional right for legal counsel to represent them. The U.S. Supreme Court's 1963 ruling in Gideon v. Wainwright mandated that states provide free lawyers for indigent defendants in criminal cases. 

Public defenders are appointed by the courts for defendants who cannot afford legal representation. Of the 82 counties in Mississippi, only eight have full-time public defender offices, while the vast majority of counties hire part-time contractors to provide legal representation. Meanwhile, a few counties appoint lawyers on a case-by-case basis and pay by an hourly rate.

Most of those charged with crimes in Mississippi can't afford private attorneys. Indigent defendants in non-capital cases rely on a public defender system funded by local governments, many of which struggle to finance this service. 

Since 1990 they also get “overhead”, said state public defender Andre de Gruy. “In  practice the very few who get appointed under that statute get an hourly rate. Most people getting appointed are doing so under a flat fee contract or in an office. the vast majority of capital cases are NOT death penalty cases. That is, the (district attorney) is not seeking death,”  he said.

The decentralized structure makes it hard to assess indigent defense services in Mississippi. “It's out of view for most people, so people don't see what's happening,” said David Carroll, the executive director of the Boston-based Sixth Amendment Center, which compiled a report, The Right to Counsel in Mississippi: Evaluation of Adult Felony Trial Level Indigent Defense Services, on indigent defense services in Mississippi.

The report, published in 2018 at the request of the Mississippi Public Defender Task Force, found an absence of state standards and oversight to ensure local governments provide effective assistance of counsel to indigent defendants. 

“The very first principle for an effective indigent defense system is that it must be independent from the judiciary,” Carroll said. 

However, with most counties not having public defender offices, judges in Mississippi play a key role in selecting public defenders. Judges also approve the payment, which except in death penalty cases  is capped at $1,000 per case, plus expenses allowed by the judge, regardless of the time required to defend the case.

This system can create incentives for attorneys to rush a client to plead guilty, the report reveals. 

“People who are entitled to a defense are entitled to a full-time defense,” said Aisha Sanders, part-time public defender in Adams County. “They should be getting lawyers who can spend the same equal amount of time on their cases as the (district attorney) offices.”

One defendant had been in jail two and a half years when the judge reassigned his case to Sanders. She found out the previous lawyer had failed to file a single motion to move the case forward.

As soon as she saw the file, “I realized I see why he [the defendant] was upset.”

When she pushed for the trial, the district attorney dismissed the charges, she said. “We finally got them out.”

Some charges might be enough to get a preliminary hearing but not enough to secure a conviction, she said. “That happens quite often.”

‘They are underpaying us'

The lack of independence also manifests itself when private attorneys working with part-time contracts seek raises.

Sanders is one of the three Black public defenders serving in Adams County, where Black residents make up more than half the population. 

Many defendants who come through the system are Black, and a lot of times they have a hard time trusting other attorneys who don't come from the community, Sanders said. “I ended up getting a lot more cases.”

But in 2020, she found out that she and the other Black female public defender, Lydia Blackmon, failed to get a pay raise that others received. They ended up suing the county, and 13 months later, they finally received the equal pay.

Though most public defenders are underpaid, they say it's difficult to ask for a raise if they are under part-time contracts. In Oktibbeha County, Mallette worked for 17 years without a raise until Judge James T. Kitchens went to the Board of Supervisors on their behalf in 2016 and lobbied on their behalf. 

‘You wait in jail without a lawyer until you get indicted'

Attorneys working in counties with no public-defender offices often have little control over their defense processes because they can't begin their work when the person is charged. 

In Mississippi, the constitutional right to have an attorney doesn't kick in until defendants are indicted. While some counties appoint lawyers only after indictment, most counties and cities appoint two sets of attorneys to specialize on cases at different court levels. 

Duane Lake was in jail without a lawyer for almost three years before he got indicted. He eventually spent six years in Coahoma County jail for a murder he didn't commit. 

Lake briefly had a lawyer to stand in for his preliminary hearing, but no attorney was appointed to represent him after that. 

“It's detrimental that you don't have a lawyer,” he said.

Before he was indicted, he tried to file a motion on his own behalf, but the judge never acknowledged that motion.

Cliff Johnson, the director of the Roderick and Solange MacArthur Justice Center at the University of Mississippi School of Law, referred to this lengthy period Lake experienced without representation as the “dead zone” that would impair the quality of defense. 

“You do get a lawyer, but you just get them for a very brief period of time,” said Johnson. “That lawyer disappears. You wait in jail without a lawyer until you get indicted.” 

According to Johnson, Mississippi is one of the very few states where there is no time limit between the date of arrest and the date of indictment, meaning that people could spend an indefinite amount of time in jail without indictment. 

During this time, as prosecutors gather evidence to make cases for a trial, there is no public defender investigating on the behalf of the defendant, he said. When Lake finally got appointed to a state public defender for the death penalty three years later, some potential witnesses who could help prove his innocence had passed away. 

If the people arrested can hire a private attorney, “the lawyers for a person with money will stay with you through this time,” Johnson said. “They would be talking to witnesses or gathering documents.”

After the court dropped the death penalty charge, Lake was appointed three part-time public defenders until the court finally dropped all of his charges. The trial took so long his lawyer ended up retiring because his contract with the county was up. 

“The system is not designed for you to win,” Lake said. 

Within each county, the defense system may be different, depending on the resources a county can allocate for indigent defense. Public defenders, who often deal with heavy caseloads and limited resources, also bear the most blame of the incompetent system.

In Webster County, Mallette goes to some of the lower court hearings, though she relies on the help of another contracted attorney to handle preliminary hearings. But since Eupora in Webster County has another public defender, she doesn't know anything about the cases from that city until they move to the Circuit Court after indictment. 

In Oktibbeha County, where Mallette also serves, she can have consistency from the time her clients are charged until their cases are resolved. While Mallette agrees that consistency leads to more efficiency, she also bears a greater burden because she is handling these cases without assistants and investigators.

Many times, the court clerk notifies her that she has been appointed to a case in which all she knows is the defendant's name and charges, she said. “I have no idea who I represent right now. I've got no clue. I've got 50 emails, but I don't know who's in jail.” 

She said she ends up with more responsibility and lacks the support she needs to do her job well.

Johnson sees inequality as the problem. Most rural counties in Mississippi don't have a public defender office. 

State Public Defender André de Gruy explained that counties that have lower tax revenues risk more social problems because they have less industry and fewer jobs. Those counties also are not able to sufficiently fund a public defender system. 

“I get calls to the state defender asking, ‘Well, who's the lawyer on the case?'” de Gruy said, “because people are just trying to find out who represents their loved one and they assume the public defender would do that.” 

The authors of the Sixth Amendment report warn that Mississippi risks being sued over its provision of indigent defense services. 

Between 2009 and 2017, they note, courts in six states allowed civil class action lawsuits to go forward over allegations that indigent criminal defendants were being systematically denied their right to counsel based on the same criteria used in this assessment of Mississippi. In each case, the courts ruled the defendants don't have to wait until their cases are over to prove they received ineffective assistance of counsel. The defendants instead “may seek to vindicate their right to counsel before it is denied to them in the first place.”

This story was produced in partnership with the Community Foundation for Mississippi's local news collaborative, which is independently funded in part by Microsoft Corp. The collaborative includes Mississippi Today, MCIR, the Clarion Ledger, the Jackson Advocate, Jackson State University and Mississippi Public Broadcasting.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.