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NY Times reports on “Optional” Conviction Cases

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In a Mississippi Jail, Convictions and Counsel Appear Optional

 

By Campbell Robertson, September 24th 2014

RALEIGH, Miss. — Sheila Burks has not seen her nephew Octavious much over the past few years.

Sitting in her house far out in the Mississippi countryside, she ticked off his stints in the Scott County jail: There was the 18-month stay that ended in 2011; the year that ended in June 2013; and a stretch that began with an arrest last November and is still going.

It is hard to figure out what all this jail time has actually been about. While the arrests that led to these jail stays have been on serious felony charges, Octavious Burks, 37, a poultry plant worker, has not been convicted of or even faced trial on any of the charges. For nearly all of his time in jail, including his current 10-month stay, Mr. Burks has not even had access to a lawyer.

“He’s always at the jailhouse,” Ms. Burks said. “And he don’t ever go to court.”

On Tuesday, civil liberties groups filed a federal class-action lawsuit on behalf of Mr. Burks and others in jail in Scott County, a rural area about a 45-minute drive east from Jackson, the state capital. The suit charges that inmates at the jail have been “indefinitely detained” and “indefinitely denied counsel,” in violation of their constitutional rights.

Sheila Burks, left, Octavious’s aunt, said her nephew was always in jail but had never gone to court. Right, his grandfather L.J. Burks. CreditJames Patterson for The New York Times

The suit, brought by the American Civil Liberties Union and the MacArthur Justice Center, says that when Mr. Burks and others are arrested, steep and “arbitrary” bail amounts are set, with no consideration of a person’s ability to pay.

If a defendant applies for indigent defense, as Mr. Burks did on the day of his arrest in November, the senior circuit judge, Marcus D. Gordon, generally approves the request. But it is the judge’s policy not to appoint a public defense lawyer until a person is indicted. And there is no state law setting a time limit on detention before an indictment.

So Mr. Burks sits in jail and waits, with no lawyer and no end in sight.

Legal experts said such circumstances were widespread, even if this was an extreme example. Steep bail amounts and long jail stays without access to a lawyer are particularly common for those charged with misdemeanors, said Alexandra Natapoff, a professor at Loyola Law School in Los Angeles.

It is somewhat less common for felony cases. But common or not, Professor Natapoff said, it is still wrong.

Joshua Bassett, left, now 31, has been in the jail in Scott County, Miss., since January.

“This is clearly not what we mean by due process, and this is not what we mean by justice,” she said. “It doesn’t have to be unique to be absurd.”

In a brief interview, Judge Gordon said it was indeed his policy to appoint indigent defense only at indictment, even though he might approve a defendant’s request for counsel long before that.

“The reason is, that public defender would go out and spend his time and money and cost the county money in investigating the matter,” Judge Gordon said. “And then sometimes, the defendant is not indicted by the grand jury. So I wait until he’s been indicted.”

Judge Gordon then said that he did not have the jurisdiction to appoint a public defender at all until a defendant was indicted in his courtroom, even if someone were to request a preliminary hearing or a bail hearing. In those cases, the judge said, a defendant “can represent himself, or he can employ an attorney.”

This came as a surprise to those who are familiar with the courts in Scott County and in Mississippi generally. “A judge has the power to appoint a lawyer anytime,” said Robert B. McDuff, a criminal defense lawyer in the state. But he said he was not surprised by the allegations in the lawsuit.

Octavious Burks, 37, has spent several stints in the Scott County jail without seeing a lawyer or having been convicted.CreditMississippi Statewide Victim Information and Notification Everyday

“My sense is that this goes on in most places in Mississippi,” he said. “Poor people are sitting in jail for weeks and even months before they ever see a lawyer.”

The public defender system in the state is a patchwork, varying from county to county. Most public defenders work part-time or on contract. Mississippi and six other states do not contribute any money for indigent defense for trial-level, noncapital cases. Those costs are borne entirely by local governments, usually from court fines and fees.

In 2011, the legislature created the Office of State Public Defender and directed it to study the landscape and possibly lay the groundwork for a statewide system. The office, however, does not have any oversight over public defenders in counties across the state.

“We don’t know a lot of what’s going on in some of these counties,” said Leslie Lee, the state public defender. What appears to be going on Scott County, she said, is unconstitutional.

“If you don’t have an attorney, how is a defendant supposed to know what his rights are?” she asked. “He doesn’t realize that he can ask for a bond reduction or he can ask for a preliminary hearing to find out if there is enough evidence. He’s just at the mercy of the pace of the prosecution.”

Mr. Bassett told his mother, Brenda, that his bail had been set at $100,000.CreditJames Patterson for The New York Times

According to Brandon Buskey, a lawyer with the A.C.L.U.’s Criminal Law Reform Project, 53 of the 129 inmates in the Scott County Detention Center have not been indicted.

Among them is Joshua Bassett, 31, the only other plaintiff named in the suit, along with Mr. Burks. Mr. Bassett is not a stranger to trouble, said his mother, Brenda, but he has never been through anything like this. “He was always going in the door of the jailhouse, but he was coming back out as soon as he went in,” she said.

In January, he went in and has not come back out. The police charged him with stealing a hitch trailer and possessing meth (burglary and petty larceny charges were added months later). Ms. Bassett said she had tried to see her son but had been told for weeks that he was in solitary confinement. When she did finally see him, he told her that his bail had been set at $100,000.

“I tried to help Joshua as much as I could, but I only draw a little over $600 a month,” said Ms. Bassett, 64, who worked as a janitor in a nursing home until she had a stroke last year. “I would give everything I have to get my son out of this mess. But I don’t have anything.”

It is still unclear what became of the felonies, including aggravated assault and armed robbery, that led to Mr. Burks’s stints in jail. The lawsuit, based on his recollection, says that he was indicted on some charges in 2010, though he never went to trial.

Mark Duncan, the district attorney and a defendant in the suit, said Wednesday that his office had not yet been able to find any case involving Mr. Burks. Mr. Duncan added that his office was still double-checking.

Sheila Burks does not remember any indictment. In the past, she said, after months of waiting, she would receive a phone call from her nephew out of the blue, asking her to come by the jail to pick him up.

“I told him, ‘You keep your nose clean in there,’ ” Ms. Burks said. “ ‘And when you get out this time, you better leave Mississippi.’ ”

This article originally appeared in September 25th, 2014 addition of the the New York Times .

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