‘Continuity of Representation’ Adopted by the Mississippi Supreme Court

Last year, Empower Mississippi filed a motion with the Mississippi Supreme Court to change the procedure for appointing public defenders. The goal of the motion was to ensure that criminal defendants had continuity of representation to defend their rights throughout criminal proceedings. Today, the Court adopted new language for Mississippi Rule of Criminal Procedure 7.2 to do just that.

Empower’s motion was supported by a wide range of both in-state and national organizations, including:

• The Office of the State Public Defender
• University of Mississippi School of Law
• Mississippi College School of Law
• The Sixth Amendment Center
• Cato Institute
• Gideon’s Promise
• FWD.Us

The U.S. Supreme Court has long recognized that the 6th Amendment affords a criminal defendant the right to effective assistance of counsel, and that this right is a gateway to other constitutional rights meant to ensure that people accused of crimes receive fair process.

States are entrusted under the Constitution to make attorneys available to defendants. Most states manage public defenders through a central office. Mississippi is one of a handful of states that handles the appointment of public defenders at the local level, with individual judges assigning cases to attorneys.

Very frequently, this system results in a gap counsel known as “the dead zone.” What happens is that one attorney is appointed to represent a defendant for a preliminary hearing and then another attorney is appointed before trial. In effect, this means that there is a broad period where defendants have no counsel to protest excessive bail or move a case along to trial.

The end result is thousands of people sitting in local jails, often upwards of a year, awaiting indictment. The MacArthur Justice Center, which has conducted extensive record requests on Mississippi’s jails, said that based on their findings, 2,716 detainees out of 5,800 people in Mississippi county jails had been there for more than 90 days. “More than 1,000 have been detained for at least nine months, and 731 have been stuck in county jail for over a year,” according to MacArthur.

In some cases, people who could not afford an attorney or assigned bail, have waited multiple years without an indictment. It is an egregious miscarriage of justice that someone could face the deprivation of liberty for so long without a trial and conviction. Duane Lake’s case is a great example. Lake was arrested in 2015 on the very serious charge of double homicide. From the beginning, he denied the accusation. Lake was not indicted until 2017, at which time he received counsel. He was finally tried in 2021 and was acquitted by the jury after spending six years in jail, losing his wife, kids and career.

With continuity of counsel, the expectation is more efficient proceedings. This would mean more efficient convictions of the guilty and more efficient acquittals of the innocent. Both of these things are not only in the interest of the accused, but of the state. County jail backlogs are expensive. So is the consequence of a justice system people do not trust.

Empower is proud to have played a role in making the system fairer for everyone.