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.