Hinds County Public Defender at odds with Judge Weill – updated

This is pretty fascinating.  As I understand it, both the public defender’s office and the district attorney’s office assign lawyers to cases before certain judges.  APD Allison Kelly is assigned to cases before Judge Weill.  According to pleadings filed by the Hinds County Public Defender’s Office in the Miss. S. Ct, Judge Weill is taking all of the cases assigned to Ms. Kelly and appointing private counsel on those cases to be paid by the county.  He wrote a letter to the Hinds County Board of Supervisors explaining that he was required to do this because Ms. Kelly is unethical and unprofessional. I assume this is to justify the extra expense it will cost the county to pay appointed attorneys.

The Hinds County Public Defender has filed in the Miss.S.Ct. some thirty-odd Petitions Seeking Review of Judge’s Actions and Motion for Writ of Prohibition.  Here’s one of them.   I’m a little shocked by the Judge’s allegations against Ms. Kelly and would be surprised if there is any merit to them whatsoever.  As it happens, Ms. Kelly is a formidable criminal defense attorney who gets great results.

PD’s follow-up letter. 

Motion for writ of prohibition filed March 19, 2015.

Motion to consolidate filed March 19, 2015.

This is just more proof as to why we need to stop electing judges.

So I decided to do some quick research on this issue and found a case out of Chicago where a judge repeatedly either recused himself or ordered a certain public defender to step down in some 50 cases, in effect, removing her from his courtroom (as does the judge here).  Burnette v. Terrell, 905 N.E.2d 816 (Ill. 2009). The p.d. filed with the Illinois Supreme Court a petition seeking either a writ of mandamus or a writ of prohibition.  The Court chose to issue a “supervisory order.”

First of all, it found that only the Illinois Supreme Court had the power to discipline attorneys.  There are certain situations where a judge can remove defense counsel in a case: when there is a serious conflict of interest, where the attorney is so inadequate that the defendant is deprived of his right to counsel, where the attorney is drunk, or where scheduling conflicts require.  But to do so, the judge would need to make a sufficient record.  In Illinois, the assistance public defenders serve solely at the discretion of the public defender and it is the public defender’s  sole statutory authority to make work assignments to the assistance public defenders.

We conclude that  it is not within the authority of a judge to assign specific cases to specific assistant public  defenders. Such actions usurp the statutory authority of the public defender to hire and manage his staff. When the public defender assigns several assistant public defenders to a particular courtroom, it is not a delegation of his authority to the judge who presides there to choose specific assistant public defenders to represent individual defendants. Rather, it is an assignment to the assistant public defenders to step up as directed by the public defender (who apparently employs a week-by-week rotation) when the court finds it necessary to direct the public defender’s office to represent an indigent defendant.

Mississippi is like Illinois in that the exclusive authority to discipline attorneys lies with the Mississippi Supreme Court.  Judge Weill is effectively barring Kelly from practicing in his courtroom.  I don’t think he has the authority to do so.

The Clarion Ledger covers the story here.

The ABA Journal picked up the Clarion Ledger’s story here. 

Update:  When the HCPD’s office failed to assign Alison Kelly’s cases to another public defender, Judge Weill appointed non-public defender lawyers to the cases.  The orders are attached to the HCPD’s latest petition attached here.   If you look at the orders, he’s appointed approximately half the cases to attorneys who regularly practice criminal law in Hinds County.  The others are appointed as pro bono cases to attorneys who, for the most part, practice at large civil defense firms in the area.   I can’t be the only person who finds this to be extremely unusual.

TBA adds: “This is … interesting. Looking at one of the attorneys appointed to represent a criminal defendant, we find his firm’s website advertises his areas of practice as “Commercial Litigation, Environmental Litigation, Personal Injury, Mass Torts, and Product Liability/Premises Liability.”

Is anyone really going to buy the notion that  attorneys with little or no criminal defense experience are more competent than Alison Kelly?

Meanwhile, the DA’s office is asking the HCBOS for more money but hasn’t yet provided the Board a budget so it can see where the deficiencies are.

Update: March 25, 2015

The National Association  for Public Defense filed an amicus brief on March 25, 2015 written by Merrida Coxwell.

And the Magnolia Bar is apparently planning to file an amicus brief.

Judge Weill has filed a response to the Motion for Writ of Prohibition.

And the Office of the State Public Defender has filed an amicus.

12 thoughts on “Hinds County Public Defender at odds with Judge Weill – updated

  1. Why is there no mention of Sec. 25-13-22 in any of the analysis on this issue? It seems to me the court may prevent a defendant from being represented by an attorney whose representation would violate a statutory legal prohibition regarding that representation. Must a court allow a full time public defender to represent indigent defendants while the pd is simultaneously engaged in the private practice of law? If so, won’t the defendant have a great claim for reversal of his conviction for want of statutorily competent counsel? I’m sure the taxpayers will enjoy paying for the costs of that appellate issue. Until I hear some factual assertion that Kelly is not a full time PD or is not engaged in private practice, then it seems a lot of people are chasing a smokescreen.

  2. Hmmm. The public filings at MS Secretary of State, where Ms Kelly operates a professional LLC in her own name described as “Offices of Lawyers” (and where, ironically, she provides what I assume is her public defender’s email address), isn’t a form of proof? In any event, I appreciate the tacit concession that the central issue in this story has not been addressed.

    • No. It’s not really proof of anything except that there’s an LLC. The thing is, he’s banned her from practicing in his court and I’m pretty sure he lacks the authority to do so.

  3. One, zero due process. Two, no authority cited that circuit judges enforce that statute at their discretion. Three, if I’m a judge going to pull this, I’ve got all my facts laid out in devastating detail; that does not seem to be the case here.

  4. Compare the Satterfield op yesterday. S claimed that statutes re DHS lawyers’ comp were bring violated. COA said, so? That doesn’t create a cause of action or give you standing to sue.

  5. It is a shame Satterfield was not litigated better, or that the issues were not better presented and argued on appeal. I have some friends and acquaintances who work at DHS and the attorney’s are both paid and treated terribly.

  6. DHS can pay practically nothing because there’s a huge glut in the market. Did anyone see the stats in the Bar’s latest newsletter?

    “Mississippi Bar statistics indicate the lawyer population in Mississippi has grown by 48% since 1995. In 1995 there were 4,779 lawyers holding an active license to practice law in Mississippi. Today there are 7,085 lawyers.”

    I blame it all on Ally McBeal. If Better Call Saul had been airing instead of Ally McBeal, we wouldn’t be where we are today with way too many lawyers.

  7. Doesn’t this just give the defendants the ultimate grounds for appeal? And shouldn’t this attorney be beating the judge to the punch by filing a motion to have him recuse himself?

    There is, by the way, a general assumption that public defenders aren’t all that good. Perhaps sometimes they aren’t. But the one’s I’ve known are outstanding (which I confess was a surprise to me). To deprive a defendant a p.d. and replace him or her with a civil attorney certainly deprives them of their rights to a fair trial.

  8. When Hinds first got a full time public defender, Judge Coleman asked Tom Fortner to run the program because it was well known what a great job he was doing on the coast. I remember doing a pcr for one defendant and giving him hell for having fired Tom Fortner and hiring an attorney who was known for being sloppy. Of course, that attorney is now a judge.

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