                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2003-SA-02658-SCT

QUITMAN COUNTY MISSISSIPPI

v.

STATE OF MISSISSIPPI, HALEY BARBOUR, IN HIS
OFFICIAL CAPACITY AS GOVERNOR AND JIM
HOOD, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL


DATE OF JUDGMENT:                            11/7/2003
TRIAL JUDGE:                                 HON. ANN H. LAMAR
COURT FROM WHICH APPEALED:                   QUITMAN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     J. CHRISTOPHER KLOTZ
                                             WILLIAM H. VOTH
                                             KATHLEEN A. BEHAN
ATTORNEYS FOR APPELLEES:                     OFFICE OF THE ATTORNEY GENERAL BY:
                                             BILLY BERRYHILL
                                                  HAROLD EDWARD PIZZETTA
NATURE OF THE CASE:                          CIVIL - OTHER
DISPOSITION:                                 AFFIRMED - 07/21/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    This case is now before this Court a second time.       Quitman County [hereinafter the

County] filed this action for declaratory and injunctive relief against the State of Mississippi,

Governor Haley Barbour, and         Attorney General Jim Hood.        The County alleged that

Mississippi’s statutes requiring the counties to provide legal services for indigent criminal

defendants are unconstitutional.   The County sought a declaratory judgment because the State
has allegedly breached its duty to provide effective assistance of counsel, in violation of

Article 3, Section 26 of the Mississippi Constitution, and the County also sought an injunction

to compel the Legislature to create a statewide, state-funded public defenders’ office.     After

the Circuit Court of Quitman County denied the defendants’ motion to dismiss, this Court

granted permission for an interlocutory appeal. State v. Quitman Cty., 807 So. 2d 401, 402

(Miss. 2001)( Quitman I).

¶2.     This Court held that the County had standing to bring this action and had pleaded facts

which, if assumed to be true, were sufficient to withstand a motion to dismiss under Rule

12(b)(6) of the Mississippi Rules of Civil Procedure. Id. at 406, 409.     This Court affirmed

and remanded but stressed that its decision “should not be construed as stating a position” on

the constitutionality of the current funding scheme or “[w]hether Quitman County can prove

[its] allegations at a full trial on the merits will be determined upon remand.” Id. at 406, 410.

Following a trial on remand, the circuit court found no constitutional violation and entered

judgment for the defendants. We agree with the learned circuit judge. Quitman County failed

to meet its burden of proof. We, therefore, affirm.

                                   FACTS AND PROCEEDINGS

¶3.     A bench trial was held in the Circuit Court of Quitman County from April 29, 2003,

through May 6, 2003.          After the parties had submitted proposed findings of fact and

conclusions of law, the court issued a thorough opinion concluding that Quitman County had

not met its burden of proving that the funding mechanism established by statute had led to

systemic ineffective assistance of counsel in Quitman County and throughout the state.       The




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circuit court’s final judgment was entered on November 10, 2003, and Quitman County filed

a timely notice of appeal.

        Applicable Law

¶4.     In Quitman I, 807 So. 2d at 410, this Court stated that:

        [t]he question raised by the County’s allegations is whether, assuming the State
        has failed in its duty to provide effective indigent defense, the county-based
        system has resulted in the inability of the judiciary to operate in an independent
        and effective manner to the extent that this Court must of necessity, interfere
        in this traditionally legislative function and order the Legislature to establish a
        statewide, state-funded system of indigent criminal defense. Again, taking as
        true the well-pled allegations of the County’s complaint, such system
        constitutional deficiencies would entitle the County to relief.

In Quitman I, 807 So. 2d at 406-07, we also recited the applicable law dealing with the

representation of indigent defendants and the funding thereof. Art. 3, § 26 of the Mississippi

Constitution states, in pertinent part that:

        In all criminal prosecutions the accused shall have a right to be heard by himself
        or counsel, or both, to demand the nature and cause of the accusation, to be
        confronted by the witnesses against him, to have compulsory process for
        obtaining witnesses in his favor, and, in all prosecutions by indictment or
        information, a speedy and public trial by an impartial jury of the county where
        the offense was committed....

This provision has been interpreted to create a duty on the part of the State to provide effective

assistance of counsel to indigent defendants. Id. See also Mease v. State, 583 So. 2d 1283

(Miss.1991); Wilson v. State, 574 So. 2d 1338 (Miss. 1990); Conn v. State, 251 Miss. 488,

170 So. 2d 20 (1964) (relying on Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9

L.Ed.2d 799 (1963)).         Additionally, Art. 14, § 261 of the Mississippi Constitution provides

that “[t]he expenses of criminal prosecutions shall be borne by the county in which such

prosecution shall be begun.”

                                                  3
¶5.    Section 25-32-7 of the Mississippi Code Annotated is the statutory authority that

requires counties to fund the representation of indigent criminal defendants and       specifically

provides for the compensation and expenses for the public defender’s office.

Section 25-32-7 provides that:

       The public defender shall be provided with office space, secretarial assistance,
       and all reasonable expenses of operating the office, at least equal to or more
       than the county prosecuting attorney, or the district attorney if the public
       defender represents the entire circuit court district. The compensation and
       expenses of the public defender's office shall be paid by the county or counties
       if two (2) or more counties are acting jointly. The funds shall be paid upon
       allowance by the board of supervisors by order spread upon the minutes of the
       board.

Also, § 99-15-17, in pertinent part provides “[t]he fees and expenses [of counsel for indigents]

as allowed by the appropriate judge shall be paid by the county treasurer out of the general fund

of the county in which the prosecution was commenced.”            Quitman I, 807 So. 2d at 407.


                                           DISCUSSION

       I.      Applicable Legal Standard.

¶6.    This Court has held that if the trial court applies the wrong legal standard, the review of

the ruling is de novo. Baker v. State, 802 So. 2d 77, 80 (Miss. 2001) (citing Butler v. State,

592 So. 2d 983, 986 (Miss. 1991) (“[T]he trial court enjoys considerable discretion, and, so

long as that court exercises that discretion by reference to the correct legal standards, we will

not reverse absent substantial abuse of discretion”)). This Court has also stated “where . . . the

trial judge has applied an erroneous legal standard, we should not hesitate to reverse.”

McClendon v. State, 539 So. 2d 1375, 1377 (Miss. 1989). This Court has held that it “cannot

overturn the decree of a chancellor unless it finds with reasonable certainty that the decree is

                                                  4
manifestly wrong on a question of law or interpretation of facts pertaining to legal questions.”

Incorporation of the City of Oak Grove v. City of Hattiesburg, 684 So. 2d 1274, 1276 (Miss.

1996) (citations omitted).    Moreover a “‘circuit judge sitting without a jury is accorded the

same deference with regard to his findings as a chancellor,’ and his findings are safe on appeal

where they are supported by substantial, credible, and reasonable evidence.” City of Clinton

v. Smith, 861 So. 2d 323, 326 (Miss. 2003) (internal citations omitted).

¶7.     At trial, the County had the burden of proving that the State has breached its

constitutional duty to provide indigent defendants with effective assistance of counsel by

requiring each county to fund its own indigent criminal defense.       The County asserted that it

cannot afford to discharge its burden of providing funding for indigent defendants in a

constitutional manner.    Since statutes are presumptively constitutional, when there is a conflict

between a statutory scheme and a constitutional provision, it must be “palpable” before the

courts of this State will declare a statute unconstitutional. State v. Miss. Ass’n of Supervisors,

Inc., 699 So. 2d 1221, 1223 (Miss. 1997).             Therefore, the County had to establish the

unconstitutionality of this system beyond a reasonable doubt. Jones v. State, 710 So. 2d 870,

877 (Miss. 1998).




        The Strickland standard

¶8.     The County claims that the circuit judge applied the wrong legal standard to the its

claims for relief.   The County argues that instead of using the standard that this Court and the

United States Supreme Court held governs this case, the circuit judge applied a “higher, two

part test used only for post conviction challenges by individual criminal defendants”as

                                                  5
elaborated in Howard v. State, 853 So. 2d 781 (Miss. 2003) and Strickland v. Washington,

466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The United States Supreme

Court held in Strickland v. Washington 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d 674

that:

        Thus, a court deciding an actual ineffectiveness claim must judge the
        reasonableness of counsel's challenged conduct on the facts of the particular
        case, viewed as of the time of counsel's conduct. A convicted defendant making
        a claim of ineffective assistance must identify the acts or omissions of counsel
        that are alleged not to have been the result of reasonable professional judgment.
        The court must then determine whether, in light of all the circumstances, the
        identified acts or omissions were outside the wide range of professionally
        competent assistance. In making that determination, the court should keep in
        mind that counsel's function, as elaborated in prevailing professional norms, is
        to make the adversarial testing process work in the particular case. At the same
        time, the court should recognize that counsel is strongly presumed to have
        rendered adequate assistance and made all significant decisions in the exercise
        of reasonable professional judgment.

The State counters this assertion by saying that the circuit court “unambiguously stated that the

question before it was not ‘whether in isolated cases the public defenders were ineffective.’”

Attorneys David Tisdell and Allan Shackleford were responsible for all indigent cases in the

Circuit Courts of Quitman, Coahoma, and Tunica Counties, all appeals in those cases, and for

Justice Court indigent representations in Quitman and Tunica.                Tisdell replaced Thomas

Pearson, who was formerly a public defender until his termination in 2000.

¶9.     Even so, the County maintains that the circuit judge mistakenly proceeded as if the case

were an individual post-conviction proceeding, in which the County would have had to prove

on a case-by-case basis that the attorney’s performance was deficient and the defendant was

prejudiced.   The County states that it does “not seek to overturn particular convictions, but

rather seeks a system that meets constitutional guarantees.”       In her opinion, the circuit judge


                                                  6
stated that “[w]hen a statute can be interpreted either as constitutional or unconstitutional, the

Supreme Court has long held that they will adopt the constitutional construction.     If possible,

they will construe it so as ‘to enable it to withstand the constitutional attack and to carry out

the purpose embedded in the [statute].’” (quoting Wilson v. State, 574 So. 2d at 1340). In

other words, “[i]t is not this Court’s duty to look for factual possibilities or scenarios that

would create conflict with the statute, thereby rendering the statute unconstitutional.    Rather,

this Court’s duty is to interpret the Act and envision facts and scenarios in which the statute

could be held constitutional.” State v. Jones, 726 So. 2d 572, 573 (Miss. 1998).

¶10.   In Quitman I, 807 So. 2d at 408, this Court held that the County would be entitled to

the prospective statewide relief it seeks if it established the cost of an effective system of

indigent criminal defense, the county’s inability to fund such a system, and the failure of the

existing system to provide indigent defendants in Quitman County with the tools of an adequate

defense.     The circuit judge ruled that the County failed to establish these facts beyond a

reasonable doubt.    The County asserts that “[t]he evidence at trial established each of these

elements.”

¶11.   The State correctly points out that “[c]ommon sense suggests that if Quitman County

claims there is widespread and pervasive ineffectiveness, the most probative evidence to

support that claim would be testimony about specific instances when the public defenders’

performance fell below ‘an objective standard of reasonableness’ as measured by the

professional norms.” (quoting Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064,

80 L.Ed.2d 674). The State also asserts that the circuit judge expected to hear such testimony

at trial since the County alleged in its complaint that requiring each county to pay for its own

                                                 7
public defenders did not satisfy the constitutional requirements for effective assistance of

counsel. The record reflects that no such evidence was presented at trial. Likewise, the circuit

judge, in her opinion, stated:

        The County alleged that “there have been numerous post-conviction challenges
        to the adequacy of counsel provided to indigent defendants tried for felonies in
        Quitman County.” However, the County presented no evidence to the Court of
        any post-conviction proceedings          which challenged the effectiveness of
        appointed counsel. The County did not present proof from any defendant who
        claimed to have received ineffective assistance, nor did they identify any single
        case where ineffective assistance was alleged. No proof was presented that
        any case has ever been overturned in Quitman County because of ineffective
        assistance.

The County did not present any evidence on any one of the central factual allegations in its

complaint, and the County did not try to show specific examples of when the public defenders’

legal representation fell below the objective standard of professional reasonableness.

¶12.    The County references the above-cited passage as evidence that the circuit judge

“fundamentally misconceived” the nature of its case.       However, the record does not offer any

evidence that the court or the State thought that the County was seeking to overturn particular

convictions. The circuit judge noted that the evidence presented at trial proved that “Quitman

County is a small rural county experiencing a high rate of poverty.” In her opinion, the circuit

judge stated that:

        The evidence shows that Quitman County spends less than 1% of the county
        budget on indigent defense, $38, 352 per year. This expenditure has remained
        the same since 2000. Testimony revealed that the county’s deficit was mainly
        a result of spending in the area of solid waste, other unfunded mandates, natural
        disasters, and economic development bonds that were not being repaid. While
        the County established that it is struggling to meet its financial obligations and
        has had to cut funding in some areas, there was no testimony that resources to
        fund schools, hospitals, and local law enforcement were reduced because of
        indigent defense costs as was alleged in the Complaint. The Court is convinced


                                                    8
        that indigent defense is neither the cause not the solution to the county’s
        financial difficulties.

        Essential tools of defense

¶13.    In addition to claiming that the circuit judge applied the wrong legal standard, the

County also maintains that even under the Strickland analysis, it did show that the essential

tools of defense were not provided. The County claims that, like this Court in the case at bar,

other courts have concluded that prospective challenges to indigent defense systems were not

subject to the requirements of Strickland, and that the proper inquiry is whether the system

provides the tools of an adequate defense. The County further explains that there were distinct

differences between the applicable standards to post-conviction proceedings and to systemic

challenges.   In a post-conviction challenges, the County avers that “courts attempt to balance

the individual defendant’s interest in challenging his conviction against broader interests in

judicial economy and finality.” (citing Strickland v. Washington, 466 U.S. at 693-94). The

County argues that courts must “look to whether the system provides the essential tools of an

effective defense across the broad run of cases,” and that      “the performance of a particular

lawyer or the result in any one case is not decisive.”

¶14.    The County then claims that even under the post-conviction cases that use the

Strickland analysis, it has demonstrated that the county-based system does not provide the

tools of an adequate defense.        The County cites numerous post-conviction cases that follow

Strickland that have identified other tools that the county-based system does not provide as

fundamental to effective assistance of counsel. See, e.g., Wiggins v. Smith, 539 U.S. 510, 123

S. Ct. 2527, 156 L. Ed 2d 471 (2003) (investigation of mitigation evidence); Bell v. Cone, 535


                                                     9
U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (failure to call witnesses and waiving of

argument in sentencing phase); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed.

2d 389 (2000) (investigation of mitigation evidence); Roe v. Flores-Ortega, 528 U.S. 470,

120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) (failure to file notice of appeal); Smith v. Robbins,

528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (failure to file merits brief without

consent); Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (guilty plea

challenges).   The County also cites several cases decided by this Court such as State v.

Tokman, 564 So. 2d 1339, 1343 (Miss. 1990) (citing Gaines v. Hopper, 575 F.2d 1147, 1150

(5th Cir. 1978)), which held that meaningful discussions regarding the realities of a case are

the “cornerstones of effective assistance of counsel.”          Tokman also held that counsel has, at

a minimum, “a duty to interview potential witnesses and to make an independent investigation

of the facts and circumstances of the case.” State v. Tokman, 564 So. 2d at 1342.

¶15.    The County also references the Triplett case, in which this Court held that a defendant

is entitled to a basic defense, and that a basic defense in Triplett required “complete

investigation to ascertain every material fact about this case, favorable and unfavorable.”

Triplett v. State, 666 So. 2d 1356, 1361 (Miss. 1995).              The County concludes that if the

circuit judge had “assessed the tools of an adequate defense in light of this Court’s prior

decisions and standards, it would have been clear that the county-based system in Quitman and

counties does not provide the essential tools of defense and therefore violates the

constitutional guarantee of effective assistance of counsel.”




                                                    10
¶16.    The circuit judge’s opinion discussed in depth the claims raised by the County regarding

the lack of essential tools of defense.      In response to the County’s allegation that “lack of

counsel and excessive caseloads promotes pretrial delay . . . accordingly, excessive pretrial

delays have caused Quitman County to spend its own funds to hold defendants in county

custody,” the court stated that testimony during trial established that “Quitman County has

averaged thirty-four (34) indigent defendants per year in Circuit Court since 1999.”           Further,

that “each public defender is required to be in Justice Court one day each month, an average

of seventeen (17) cases per public defender per year in Circuit Court. Certainly, this does not

represent an excessive caseload for the two public defenders in Quitman County, as alleged.”

The circuit judge also held that:

        The two public defenders also take on indigent cases in two neighboring
        counties in this circuit court district and also represent private clients. The
        County contends that the public defenders average 165 cases a year in civil and
        private and indigent criminal cases, and that this is excessive. The Court is
        satisfied that those directly involved in the Quitman County criminal justice
        system, that is, the two public defenders and the three circuit judges, are in a
        better position than the Court to judge the weight of their caseload. Each of
        these testified that the caseload was not excessive and the defenders did not feel
        overburdened with their caseload. Mr. Shackleford testified that the public
        defenders were not allowed to schedule other cases during Circuit Court terms
        without permission of the Circuit Court Judge.

The circuit judge also attributed the pretrial delay to the fact that “Quitman County has two

terms of court each year, with approximately six months between terms of court, which

necessarily results in pretrial delays in processing felony cases.”        The circuit judge concluded

that the delays “cannot be attributable to the public defender program.”

¶17.    The County also contends that due to the chronic underfunding of indigent defense, the

result was ineffective assistance of counsel which in turn, adversely affected the administration


                                                   11
of justice in Mississippi.   The County supports this allegation by stating that there have been

“an unusually high number of guilty pleas entered on the day of appointment of counsel, public

defenders are not provided investigators, public defenders most often meet defendants in mass

in the courtroom, public defenders are not provided office space, there is little motion practice

in Quitman County and that the part-time flat fee public defender system is conducive to

ineffective counsel.”   This argument was not persuasive to the circuit judge because in

summary, none of the public defenders for this judicial district, circuit judges, or district

attorneys testified to this effect. Further, none of the three witnesses tendered by the County

as experts concluded in their testimony that either of the public defenders in Quitman County

was incompetent. More specifically, Steven Farese, who was accepted as an expert, stated that

he understood he was to “testify as to the regularly accepted methods of defending a criminal

defendant in an adequate manner and also testify as to what I have observed and read through

the practices of Mr. Tisdell and . . . Mr. Pearson and Mr. Shackleford and their representation

of indigent defendants in Quitman County.” Farese stated that his opinion was that “there’s not

one single case that you can point to and say that this person or that person is ineffective

because it doesn’t work that way,” but he concluded that the system as a whole was ineffective.

¶18.   Similarly, Dr. Steven Bright, the director of the Southern Center for Human Rights,

testified that, with regard to his observations on how indigent defense is provided in Quitman

County, “it is not so much about the lawyers . . . I would say it’s the system or more precisely

the absence of a system that I find impressive.” The County also complains about the public

defenders’ not having investigators, but the circuit judge, in her opinion,    stated that “[t]he

Mississippi Supreme Court has confirmed that the right to counsel does not require an


                                               12
investigator or expert ‘absent a showing of substantial need’ and has held that the Circuit Court

should review such requests on a case-by-case basis.” See Hansen v. State, 592 So. 2d 114,

125 (Miss. 1991).

¶19.     Upon consideration of the briefs, the record, and the evidence contained therein, this

Court finds that the circuit judge did not apply the wrong legal standard to the County’s claims

for relief.




         II.    Applicable Legal Standard and Financial Injury.

¶20.     The County also contends that the circuit judge misconstrued the applicable legal

standard with respect to financial matters.   According to the County’s interpretation of this

Court’s previous decision regarding Quitman County, the County had to “show the cost of an

effective system of indigent criminal defense” and “the County’s inability to fund such a

system.” Quitman I, 807 So. 2d at 408. The County avers that it met its burden and established

that it cannot afford to pay any more than it presently does for indigent defense. In response,

the State claims that the County’s evidence regarding its financial condition showed that the

County had sufficient resources to fund a constitutionally adequate indigent defense system

and that the County’s obligation to pay for indigent defense in non-capital cases has neither

caused the County’s present economic troubles nor forced the County to substantially reduce

other governmental services.

¶21.     More specifically, the County alleged in its complaint that Mississippi’s current

indigent defense system has “imposed enormous and unpredictable” costs and that the

“financial resources available to fund schools, hospitals, local law enforcement and the


                                              13
traditional health, safety, and welfare obligations of county government have been substantially

reduced.”        However, Butch Scipper, the Quitman County Chancery Clerk,      admitted that the

reason for the unpredictable spikes in budgetary outlays was the expense of defending capital

cases–a potentially ruinous cost that is no longer borne by the counties.          This cost was

alleviated by the creation of the Office of Post-Conviction Counsel and the Office of Capital

Defense Counsel in 2000.1          On March 21, 2005, Governor Barbour signed into law effective

July 1, 2005, Senate Bill 2960, which creates the Office of Indigent Appeals.          This newly

created office will be responsible for handling appeals for the indigent defendants that have

been convicted of non-capital crimes.

¶22.     The circuit judge also found no evidentiary support for the County’s assertion that the

cost of providing indigent defense services had led to decreased funding for other essential

services.        As previously mentioned, the circuit judge found the County’s deficit was “mainly

a result of spending in the area of solid waste, other unfunded mandates, natural disasters, and

economic development bonds that were not being repaid.” Again, the circuit judge found that

“there was no testimony that resources to fund schools, hospitals, and local law enforcement

were reduced because of indigent defense costs as was alleged in the Complaint. The Court

is convinced that indigent defense is neither the cause nor the solution to the county’s financial

difficulties.”




         1
            As previously noted, during the 2005 Regular Session, the Mississippi Legislature
took an initial step toward that end by passage of Senate Bill 2960, which creates and provides
for administration and funding of the Mississippi Office of Indigent Appeals. Approved by the
Governor on March 21, 2005, this act became effective on July 1, 2005.

                                                  14
¶23.    The County claims that the circuit judge disregarded the evidence it presented through

the expert testimony which unanimously concluded that “a statewide, state-funded system is

needed to provide the tools of an effective defense.”      The County further explains that “even

if one were to hypothesize a standalone county system that provided adequate defense tools,

Mr. Farese’s opinion was that it would cost $300,000 to $500,000, 10 to 15 times what

Quitman can pay.”       The County asserts that the circuit judge, in addition to disregarding this

evidence, never reached the issue framed by this Court and instead, addressed a different one.

The County stated that “[u]nder this newly devised test, the county could prevail only if it

showed indigent defense was the sole cause of the county’s financial problems and that these

problems would disappear if the financial burden of indigent defense were lifted.”       The State

rebuts this argument by stating:

        [o]f course, the County’s expert did not explain why a full time public defenders’
        office in a county with a population of 10,000 would cost more than the full-
        time office in a county (Jackson County) with more than 130,000 people. But
        even assuming that the cost estimate is correct, the County’s argument ignores
        a crucial point: The Circuit Court found that Quitman County’s system of
        providing indigent defense services is not providing constitutionally inadequate
        legal representation, even at the current level of funding. Unless the County
        was able to show that it was providing inadequate services, the question of its
        ability to pay thousands of dollars more per year simply does not come into
        play.

¶24.    The State correctly points out that the County “seems to argue that it put on all the proof

it needed when Chancery Clerk Scipper announced that the County cannot afford to pay any

more for indigent defense than it already does.” However, the County does not mention the

testimony and documentary evidence that discussed the County’s discretionary spending as

well as its spending priorities.   The State accurately concludes that “[i]f the Quitman County



                                                 15
Board of Supervisors made indigent defense a higher priority, the County could find the

additional funds–even if that meant less discretionary spending on recreation and similar

projects.”

¶25.    Similarly, it was not plausible for the County to maintain that the Legislature is

prohibited from imposing financial burdens on counties because it is well established that each

county is an agency or subdivision of the state, created for administration and other public

purposes. See State v. Hinds Cty. Bd. of Sup’rs, 635 So. 2d 839, 843 (Miss. 1994). As this

Court held, “[t]he revenues of a county are subject to the control of the Legislature, and when

the Legislature directs their application to a particular purpose or to the payment of the claims

of particular parties, the obligation to so pay is thereby imposed on the county.” Jackson Cty.

v. Neville, 131 Miss. 599, 95 So. 626, 629 (1932).

¶26.    The circuit judge found insufficient evidence that the County’s public defenders are

providing ineffective assistance on a regular basis, and the judge also determined that the

County could afford to spend more if it chose to and the spending on indigent defense was not

the cause of the deficit. The circuit judge’s findings are not askew from the applicable standard

with which this Court reviews this issue. Therefore, this issue is without merit.

¶27.    For the aforementioned reasons, this Court finds that the circuit judge did not apply the

wrong legal standard in concluding that the County did not prove financial injury.

        III.    Two Key Evidentiary Rulings.

¶28.    The standard of review on appeal from evidentiary rulings is prescribed by Rule 103(a)

of the Mississippi Rules of Evidence, which states “[e]rror may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party is affected . . . .” This

                                                    16
Court articulated the standard of review of evidentiary rulings and stated that “[o]ur standard

of review for the admission of or refusal to admit evidence is well settled.        ‘Admission or

suppression of evidence is within the discretion of the trial judge and will not be reversed

absent an abuse of that discretion.’” Church of God Pentecostal, Inc. v. Freewill Pentecostal

Church of God, Inc., 716 So. 2d 200, 210 (Miss. 1998) (citing Broadhead v. Bonita Lakes

Mall, Ltd P’ship, 702 So. 2d 92, 102 (Miss. 1997) (quoting Sumrall v. Miss. Power Co., 693

So. 2d 359, 365 (Miss. 1997))).

¶29.    In applying that standard, the reviewing court may reverse a case only if “the admission

or exclusion of evidence, . . . result[s] in prejudice and harm or adversely affect[s] a substantial

right of a party.”   K-Mart Corp. v. Hardy, 735 So. 2d 975, 983 (Miss. 1999) (citing Hansen

v. State, 592 So. 2d 114, 132 (Miss.1991)). Abuse of discretion is found when the reviewing

court has a “definite and firm conviction that the court below committed a clear error of

judgment in the conclusion it reached upon weighing of relevant factors.”         Caracci v. Int’l

Paper Co., 699 So. 2d 546, 556 (Miss. 1997). Accordingly, the reviewing court “must let

stand a trial judge's findings of evidentiary or ultimate fact when substantial evidence in the

record supports those findings, or when the findings are not ‘clearly erroneous.’”      Crowe v.

Smith, 603 So. 2d 301, 305 (Miss. 1992) (quoting Matter of Estate of Varvaris, 528 So. 2d

800, 802 (Miss.1988)).

¶30.    The County claims that the circuit judge committed prejudicial error in two evidentiary

rulings, which in turn, affected a substantial right of Quitman County.   The first purported error

occurred when the circuit judge barred the County from introducing expert testimony that the



                                                17
indigent defense system has affected the independence and effectiveness of the courts, and the

second purported error occurred when the judge allowed local circuit judges to offer their

opinions on the competence of the public defenders.

       Expert testimony

¶31.   The County interprets this Court’s previous decision as identifying as a triable issue

whether “the county-based system has resulted in the inability of the judiciary to operate in an

independent and effective manner.”      Quitman I, 807 So. 2d at 410.           The County also

concludes, from this Court’s previous opinion, that if such an effect is shown, then this Court

must necessarily intervene and “order the Legislature to establish a statewide, state-funded

system of indigent defense.” Id. The County also contends that the circuit court barred it from

introducing evidence on the issue that the “integrity of the judicial system has been

compromised by the State’s failure to provide the essential tools of an effective defense.” The

County alleges that this evidence was “critical to the outcome of this case.” Farese was asked

if he had “any fears for the integrity of our court system, should the system of indigent defense

here in Quitman County continue?” The State’s objection was based on relevancy because the

State was unsure how “fears of integrity” related to Article 3, Section 26 of the Mississippi

Constitution. Miss. R. Evid. 401 defines “relevant evidence” as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” The comment to Rule

401 states that “[i]f the evidence has any probative value at all, the rule favors admission.” The

County contends that “[a]s was apparent from the context in which the questions were asked,

Mr. Farese’s expert opinion would have been that the county-based system of indigent defense


                                                 18
system has compromised the integrity of the criminal justice system in Mississippi–an

ultimate issue in the case under Miss. R. Evid. 704–and described the ways in which that

compromise has occurred.”

¶32.    However, at trial, the State argued that such opinion testimony was inadmissible,

irrelevant, and unhelpful in the sense that allowing attorneys to testify as experts on the

ultimate legal issue simply invites a “battle of experts on an issue which is squarely resolvable

only by the Court.” Thomas M. Fortner, the public defender for Hinds County, was accepted

as an expert in the field of indigent defense.     Further, the circuit judge acknowledged that

although having attorneys experts offering opinions on the ultimate legal issue might not be

very helpful, she would allow:

        this witness [Fortner] to testify as an expert in the field offered of indigent
        defense and I do think that he has specialized knowledge through his experience
        and training. And as to the ultimate question or the legal conclusion which must
        be drawn, that is a question for the Court and I would just as soon you stay away
        from it. But I know that there are matters that Mr. Fortner can assist the Court
        on and I will allow him to testify and give those opinions.

In other words, the circuit judge would allow expert opinion on specific fact-based matters and

would be less inclined to hear sweeping, unsupported opinions.      The Comment to Miss. R.

Evid. 704 solidifies the judge’s purpose in asking the parties to “stay away” from opinions on

the ultimate issue. The Comment to Rule 704 states that even though “ultimate issue” opinions

may be admissible, “[a] question may not be asked which is based on inadequately explored

legal criteria since the answer would not be helpful.”    As the State correctly asserted, “[t]he

trial court, who was sitting as the trier of fact, was merely giving the parties some guidance

about what opinion testimony would be useful in deciding the issues.”        The circuit judge’s



                                              19
approach to the expert testimony offered in the case sub judice was that the court, sitting as

a trier of fact, did not find it helpful to have a parade of experts declaring ex cathedra that the

system is unconstitutional.    Simply stated, the circuit judge allowed opinion testimony as long

as there was sufficient background testimony to render the opinion helpful.

¶33.    It was against this background that Farese took the stand and offered his many opinions

regarding indigent defense systems in general and Quitman County in particular.         As the State

correctly points out, Farese’s extensive testimony took up almost one-hundred pages of the

trial transcript. The circuit judge only refused to allow Farese to answer two final questions.

The County alleges that the exclusion of this “one last question” for Farese’s opinion on the

“integrity of the court system” constituted reversible error.        Farese had already addressed his

specific concerns about the indigent defense system in his extensive testimony, and allowing

one final, sweeping opinion during re-direct examination was redundant and unnecessary.

Therefore, the circuit judge’s decision was not an abuse of discretion.

        Testimony of circuit judges

¶34.    The County claimed that the circuit judge committed reversible error by allowing three

circuit judges to testify and offer opinions about the competency of the public defenders after

instructing the County to “stay away from” expert testimony on ultimate questions of fact.       The

County further alleged that the circuit judge “gave dispositive weight to these conclusory

opinions, which had little or no evidentiary foundation in the record.”            The circuit judge

explained her reasoning for rejecting the County’s request to exclude the judges’ testimony

by observing that it would have been unfair to allow the County to challenge the




                                                   20
constitutionality of “this very system over which these three circuit judges preside” but not let

the judges share their observations on how the system works.

¶35.     When the State announced at pretrial that it intended to call sitting circuit judges to

testify, and the County moved in limine to exclude the anticipated testimony, the circuit judge

denied the motion.       In doing so, she stated that she would not compel their testimony, nor

would she allow them to be called as expert witnesses or offer legal opinions.        She further

stated that these circuit judges “do have much information basically based on their own

personal observations which would be helpful to this trier of fact.”

¶36.     When Circuit Judge Albert B. Smith, III, was called to the stand, the court reiterated,

for the benefit of the witness as well as the parties, that his testimony should remain limited

to personal observations about how the Quitman County public defender system works. Judge

Smith made general observations about the public defenders’ “winning a lot of their cases” as

well as the frequency and quality of motions. Judge Smith stated that “[t]hey file motions with

me, and they ask for expert witnesses in certain cases, and they, of course, try the cases

themselves. As far as being prepared, I think they have a pretty good track record as far as their

wins.”    Judge Smith also specifically addressed plea agreements and the procedure thereof,

which was an area greatly criticized by the County. He even said that “a lot of times I repeat

what’s in the petition and sometimes more so when a defendant is one that has a low education

or . . . doesn’t seem to comprehend exactly what the scenario is. Sometimes we will take a

break, and I will let him go and confer with his attorney.”

¶37.     Circuit Judge Larry Lewis was then called to testify about the appointment of public

defenders in Quitman County Circuit Court, the judges’ standard practices for accepting pleas,


                                                    21
and the public defenders’ handling of motions and trials. He explained that the judges require

each defendant to “certify to the Court that the defendant has informed his lawyer [of]

everything he knows about the charge, the facts of the case,” before the court will accept the

guilty plea.    Judge Smith stated that purpose of the plea colloquy is to ensure that this

communication occurs between the attorney and his client. He also said that the circuit judges

directly ask each defendant whether or not he committed the crime and stated that “[i]f the

defendant falters in any way at that point, the plea is off.” Judge Lewis further attested to the

fact that he had observed Quitman County public defenders both in his capacity as a county

prosecutor as well as a circuit judge, and that he always found them well-prepared.     He also

testified that the public defenders regularly file various motions, including motions to suppress

evidence, and he stated that he had not observed any differences in how the public defenders

represented their indigent clients as opposed to their paying clients.     When he was asked

whether the public defenders were “effective advocates,” Judge Lewis carefully limited his

answer to the “results of their work” and testified that they were competent in the sense that

they prevail in many of their cases.

¶38.    The personal knowledge of the judges regarding what they observe the lawyers doing

in their courtroom was the reason that they were called as witnesses. The circuit judge did not

abuse her discretion by relying on the judges’ testimony to help her determine whether the

public defenders’ caseload was excessive, whether indigent defendants were entering into ill-

advised plea agreements, and whether the public defenders take their obligations as such

seriously.     Furthermore, the circuit judge did not treat their testimony as expert opinion




                                               22
testimony on the issue of whether the public defenders were providing constitutionally

adequate representation, so the admission thereof was not erroneous.

        IV.     Other Evidence.

¶39.    The County avers that the circuit judge “ignored entire categories of expert and lay

witness testimony, authoritative standards, government studies, and defense witness admissions

establishing key facts that the [this] Court held are determinative of Quitman’s claims.”

However, the County incorrectly accuses the circuit judge of ignoring that evidence simply

because she refused to draw inferences favorable to the County or because she found the

County’s evidence less probative than that submitted by the State.          In its brief, the State

accurately asserts that the County cannot retry its case on appeal and states that this Court is

required to accept as true all “evidence which supports or reasonably tends to support the

findings of fact made below, together with all reasonable inferences which may be drawn

therefrom and which favor the lower court’s finding of fact. That there may be other evidence

to the contrary is irrelevant.” Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 47

(Miss. 1998) (internal citations omitted).          The County’s argument fails to consider the

evidence within the record that was unfavorable to its position.

¶40.    For example, the County points out that its public defenders have a total caseload of

around 165 cases per year, even though the American Bar Association standards recommend

handling no more than 150 cases per year.          Since the court heard first-hand testimony about

the caseload of the public defenders in Quitman County which indicated that they were not

overwhelmed by their work, the County could not reasonably expect the circuit judge to have




                                                   23
found that the public defenders’ handling of 165 cases instead of 150 cases had either resulted

in or contributed to widespread ineffective assistance of counsel.

¶41.    The County, by asserting the circuit judge ignored evidence, also fails to take into

account the testimony of the circuit judges which contradicts the contentions of the County.

The County also fails to address the public defenders’ testimony about how they generally

conduct investigations themselves and decide on a case-by-case basis whether or not to use the

services of a professional investigator or retain an expert witness, ways in which they use their

own offices, secretarial staff, computers, and other resources, conduct discovery, and

communicate with clients.     As previously referenced, the testimony of the   judges and public

defenders was the only first-hand account of how the system actually operated, so the circuit

judge properly considered the testimony helpful in determining whether there has been a

widespread ineffective assistance of counsel in Quitman County as a result of the county-based

indigent defense system. The State correctly contends that “[e]ven if the County had prevailed

on the first issue addressed by the Circuit Court, the County still would not have been entitled

to the relief it requested. In making this argument, the State cites to Wilson v. State, 547 So.

2d at 1340-41, where this Court did not find sufficient grounds with which to enjoin the

Legislature to expend public funds on the defense of indigent criminals.

¶42.    For the reasons previously enumerated, this Court finds that the circuit judge’s decision

is not against the overwhelming evidence or an abuse of her discretion, but is instead, amply

supported by the evidence presented at trial.

        V.      This Court’s Prior Dissent and Personal Opinion.




                                                   24
¶43.    This Court’s “review of a chancellor’s findings of fact is the manifest error/substantial

evidence rule.” Miss. State Tax Comm’n v. Med. Devices, Inc., 624 So. 2d 987, 989 (Miss.

1993). The findings of the circuit court are accorded the same deference as a chancellor’s fact

findings. Kight v. Sheppard Bldg. Supply, Inc., 537 So. 2d 1355, 1358 (Miss. 1989) (citing

Hardy v. First Nat’l Bank, 505 So. 2d 1021, 1023 (Miss. 1987)).

¶44.    The County’s final assignment of error is based on the closing paragraphs of the circuit

court’s opinion.   In its brief, the County avers that the circuit judge violated Canon 3A of the

Code of Judicial Conduct by injecting “an unfortunate note of personal opinion into a decision

of statewide significance and constitutional import, and contrary to the expressed view of the

majority of the Quitman Court.” The passages the County found objectionable are quoted in

full as follows:

        The County bears the burden of proving that the rights of indigent defendants are
        being violated in Quitman County and across the state to the extent that this
        court should hold the funding scheme established by our legislature as
        unconstitutional. While this lawsuit has raised issues of statewide concern
        which give rise to serious constitutional dilemmas, the Court concludes that the
        County falls short of demonstrating that indigent defendants in Quitman County
        are receiving ineffective assistance of counsel. Additionally, the County has not
        proven that the county-based system has resulted in the inability of the judiciary
        to operate in an independent and effective manner . . .This Court cannot say that
        this is one of those rare occasions when the courts should exercise its inherent
        power and ‘interfere with this traditionally legislative function and order the
        Legislature to establish a statewide, state-funded system of indigent defense.’

        The question before this Court is not whether the county-based system is the
        best system of indigent defense. The question is not even whether in isolated
        cases the public defenders were ineffective. Rather, the question is whether
        Mississippi’s county-based system is a constitutionally adequate system of
        indigent defense.    This Court finds that our system meets constitutional
        demands. This is not to say that another approach would not be more desirable.
        This Court agrees with the sentiments expressed by three justices in the



                                               25
       dissenting opinion in State v. Quitman County, 807 So. 2d at 413 (Pittman, C.J.,
       dissenting):

               I agree that it would be wise of the Legislature to create and fund
               a statewide public defenders’ office. However, the Legislature
               has attempted to solve the problem of indigent defense in other
               ways. By its actions, the Legislature has shown that it is not blind
               to the plight of Quitman County. It is the Legislature which hold
               the key to solving these problems, not this Court by impressive
               and excessive exercise of judicial authority.

The County asserts that by quoting the dissent and expressing her agreement, the circuite judge

based her opinion on materials outside the scope of prevailing law.          The County further

questions her fidelity to the law, as required by Canon 3A of the Mississippi Code of Judicial

Conduct.

¶45.   This argument is without merit because the circuit judge found that County did not meet

its burden at trial, then it is not entitled to the possible relief that was enumerated by the

majority of the Court in Quitman.     Although her ideas regarding the proper way to gain the

relief sought if the burden had been met were contrary to the majority’s opinion, she was in no

way violating her duty to remain faithful to the law.   Clearly, the circuit judge recognized that

even though the county-based system may not be the “best” way, it is constitutional.        As the

State points out, the circuit judge’s “ability to distinguish between her own personal views

about the desirability of a statewide public defenders’ office and her judicial authority to grant

that relief given the facts of this case is commendable; it is not grounds for reversal.”     This

Court, in State v. Hosford, 525 So. 2d 789, 798 (Miss. 1988), held that while the Legislature

has the authority “to furnish what funds and facilities it deems proper,” the courts may,

nevertheless act in cases of necessity when the Legislature fails to furnish the essentials



                                               26
required for the operation of an independent and effective court. Quitman I, 807 So. 2d at 410

(quoting State v. Hosford, 525 So. 2d at 798).              Conclusively, the County did not meet its

burden of proving that the county-based system has resulted in widespread ineffective

assistance of counsel.    Therefore, the County cannot carry the further burden of showing that

its requested injunction was the proper remedy. The County urges this Court to implement a

remedy that falls within the purview of the Legislature instead of the judiciary.

¶46.    This Court recognizes that multiple amicus curiae briefs have been filed with this Court,

and the majority of which, encourage this Court to order the Legislature to move to a state-

wide indigent defense system.      Some of the amici include in support of the County’s position

are:    the Mississippi Trial Lawyers Association, Sheriffs of Quitman County, et al., the

Mississippi Association of Supervisors, the National Legal Aid and Defender Association, the

Mississippi Circuit Clerks’ Association and the Mississippi Chancery Clerks’ Association,

NAACP Legal Defense and Educational Fund, Inc. and 100 Black Men of Jackson, Inc. The

only amicus brief filed in support of the State was filed by the Mississippi State Legislators.

                                             CONCLUSION

¶47.    For the reasons set forth above, this Court finds that the circuit judge was correct in

concluding that Quitman County did not met its burden of proving that the funding mechanism

established by statute led to systemic ineffective assistance of counsel in Quitman County and

throughout the state. Therefore, the judgment of the circuit court is affirmed.

¶48.    AFFIRMED.

     WALLER AND COBB, P.JJ., EASLEY, CARLSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY DICKINSON, J. DIAZ, J., NOT PARTICIPATING.


                                                    27
        GRAVES, JUSTICE, DISSENTING:

¶49.    The majority holds that the trial court applied the correct legal standard to Quitman

County’s (“Quitman”) claims of relief. However, the trial judge’s analysis of the facts focused

on isolated cases, rather than the systemic challenge brought by Quitman.       Further, the trial

court’s failure to consider credible, unrebutted evidence establishing the deficiencies of

Quitman’s indigent defense system severely undermined its ruling. Applying the correct legal

standard to the credible evidence in this case, Quitman is entitled to the relief sought.

Therefore, I respectfully dissent.

        Trial Court Applied the Incorrect Legal Standard

¶50.    Three years ago, this Court ruled that if Quitman could demonstrate that a lack of state

funding resulted in a local system of indigent defense representation “fall[ing] beneath the

minimum standard of representation required by the Mississippi Constitution,” then Quitman

would have established that the State “breached its constitutional duty to provide indigent

defendants with effective assistance of counsel. See State v. Quitman County, 807 So.2d 401,

408-09 (Miss. 2001) (“Quitman I”).            In Quitman I, this Court allowed Quitman, upon

satisfying the above threshold, to seek prospective relief from the State.   Significantly, in our

earlier opinion, this Court neither stated nor implied that in order for Quitman to succeed it

needed to show prejudice to any particular client.

¶51.    The majority points out that the circuit court “unambiguously stated that the question

before it was not ‘whether in isolated cases the public defenders were ineffective.’” The trial

court failed in its attempt to correctly frame and address the relevant issue. Focusing on the


                                                     28
incorrect issue (the isolated cases where the public defenders were ineffective), the trial court

then applied the incorrect legal standard. The trial court applied the higher, two-part test used

only for post-conviction challenges by individual criminal defendants under Howard v. State,

853 So.2d 781 (Miss. 2003) and Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct.

2052, 2064, 80 L.Ed.2d 674 (1984).          Essentially, the circuit court proceeded as if this were

an individual post-conviction proceeding and Quitman had to prove on a case-by-case basis that

the attorney’s performance was deficient and the defendant was prejudiced, i.e., but for these

deficiencies, there would have been a different outcome at trial. To this end, the circuit court

repeatedly criticized Quitman’s proof for supposed failure to show “incompetence” and

prejudice in particular cases that would have warranted reversal of the conviction under

Howard and Strickland.           These criticisms were unwarranted considering that the record is

replete with evidence of incompetence and ineffectiveness in the operation of Quitman’s

indigent defense services.

¶52.    Here, the circuit court fundamentally misconceived Quitman’s case and arguments.

Quitman’s complaint is that “the existing county-based system results in an inadequate and

unconstitutional system of indigent defense.”           Quitman never sought to overturn particular

convictions, but rather to challenge the constitutionality of systemic ineffective assistance of

counsel.    Therefore, the trial court’s requirement that Quitman demonstrate some form of

prejudice was completely misguided and legally erroneous.             Because Quitman I allowed

Quitman to seek prospective relief, I am convinced that a prejudice requirement is wholly

inappropriate in a case where prospective relief is sought.




                                                   29
¶53.    Other courts have concluded that prospective challenges to indigent defense systems

are not subject to the requirements of Strickland and that the proper inquiry is whether the

system provides the tools of an adequate defense. See Luckey v. Harris, 860 F.2d 1012, 1017

(11th Cir. 1988); State v. Peart, 621 So.2d 780, 791 (La. 1993) (creating “rebuttable

presumption” that “indigents . . . are receiving assistance of counsel not sufficiently effective

to meet constitutionally required standards” to be applied prospectively); New York County

Lawyers’ Ass’n v. State, 745 N.Y.S.2d 376, 384 (N.Y. Sup. Ct. 2002).

¶54.    The distinction between the standards applicable to post-conviction proceedings and to

systemic challenges rests on the very different policies applicable in the two kinds of cases.

In a post-conviction challenge, courts attempt to balance the individual defendant’s interest in

challenging his conviction against broader interests in judicial economy and finality.

Strickland, 466 U.S. at 693-94.           The concerns about certainty and finality of past criminal

convictions do not arise in systemic cases.          In those cases, society’s interest in the provision

of an effective defense to all citizens is of paramount proportions. See Luckey v. Harris, 860

F.2d at 1017; New York County Lawyers Ass’n v. State, 745 N.Y.S. 2d at 384. Accordingly,

courts look to whether the system provides the essential tools of an effective defense across

the broad run of cases; the performance of a particular lawyer or the result in any one case is

not decisive.

¶55.    Because the trial court failed to properly consider Quitman’s systemic challenge to the

county’s indigent defense system, and thereafter applied an incorrect legal standard, I cannot

agree that either the trial court or the majority reached the correct result.



                                                     30
        The Trial Court Failed to Consider Credible, Unrebutted Evidence as to the
        Deficiencies of Quitman’s Indigent Defense System

¶56.    Upon a through review of the record and briefs in the instant case, it is apparent that the

circuit court completely ignored entire categories of expert and lay witness testimony,

authoritative   standards,   governmental      studies,   and       defense   witness   admissions   which

highlighted the    deficiencies of Quitman’s indigent           defense system.         For instance, in

determining whether essential tools were provided to a defendant to assist in his defense,

courts look to objective criteria promulgated by the American Bar Association and other

standard-setting bodies. See, e.g., Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527,

2536-37, 156 L.Ed.2d 471 (2003) (counsel failed to go beyond pre-sentence report and social

services records in investigating mitigating evidence, as required by ABA standards); Williams

v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (counsel did not

investigate and present substantial mitigating evidence, as ABA standards prescribe);

Strickland, 466 U.S. at 688. (“Prevailing norms of practice as reflected in American Bar

Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d

ed. 1980) (“The Defense Function”), are guides to determining what is reasonable”). While

these standards and their applicability to Quitman were briefed extensively to the trial court,

there is no indication that the trial court ever considered them.

¶57.    There are at least three substantial reasons why the trial court should have utilized the

ABA Criminal Justice          Standards for the        Defense Function (“ABA Defense Function

Standards”) as a benchmark for determining whether Quitman’s indigent defense system

violates the Mississippi Constitution: (1) the standards represent the legal community’s



                                                     31
consensus as to the minimum required of an indigent defense system; (2) this Court and other

courts rely on the ABA standards to determine compliance with the constitutional mandate of

effective assistance of counsel, and (3) the standards mirror this Court’s holdings regarding

the minimum requirements of a constitutional indigent defense system.           By ignoring the

intelligible framework of the ABA standards, the trial court faced a tremendous disadvantage

in assessing the constitutionality of Quitman’s indigent defense system.

¶58.    In addition to the authoritative standards of the ABA, the trial court ignored volumes of

credible, unrebutted evidence which was determinative of Quitman’s claims.        This Court has

long held that it is reversible error for a trial court to ignore uncontradicted evidence.

Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69, 75 (1951) (“[E]vidence which

is not contradicted by positive testimony or circumstances, and is not inherently improbable,

incredible, or unreasonable, cannot be arbitrarily or capriciously discredited, disregarded, or

rejected. . . . ”); Tarver v. Lindsey, 161 Miss. 379, 137 So. 93, 96 (1931) (“Where, as in this

case, the testimony of witnesses is undisputed, is reasonable in itself, . . . . and the witnesses

are unimpeached, then the trier of facts must act on the testimony and cannot reject it, else

trial might eventuate in arbitrary results. . .”); Holmes v. Holmes, 154 Miss. 719, 123 So. 865,

866-67 (1929) (reversing lower court’s dismissal where trial court ignored both the

undisputed testimony of a clerk with direct personal knowledge of the transaction at issue, as

well as a letter written by defendant containing important admissions).

¶59.    Here, the record contains undisputed expert and lay witness testimony establishing that

the county-based system fails to provide the tools of an adequate statewide defense system.

Many court-appointed defense attorneys throughout the State do not file pretrial motions, use

                                                   32
experts or invest the time necessary to represent their indigent clients effectively.   In addition

to lacking governmental oversight, these attorneys have no administrative or investigative

support to assist in the representation of their clients.   The trial court ignored the following

evidence:

       a.      There are a substantial number of instances where neither lawyer nor
               defendant recognize each other at arraignment, and prisoners remain in
               jail up to 4 to 5 months without any contact with their attorney.

       b.      Client meetings are held in groups in the courtroom within earshot of the
               prosecutor and the judge.

       c.      Public defenders routinely waive preliminary hearings, accept facts in
               indictments, and do not ask for investigators or experts.

       d.      There is no opportunity for the investigation or communication
               necessary to make an informed decision when pleas are entered on
               arraignment day.

       e.      There is a vast disparity between the resources of the State and public
               defenders.

¶60.   Governmental studies have repeatedly found that the tools of an adequate defense are

missing in county indigent defense systems. For instances, the Spangenberg studies2 found that

“funding for indigent defense is totally inadequate,” “the lack of adequate resources for

indigent defense services results in poor quality services and representation,” “there is no state

wide oversight of indigent defense, which leads to a hodgepodge, county-by-county approach

to providing services,” and “[e]very aspect of defense representation is compromised.”




       2
             The Spangenberg Group, a nationally known consulting organization with expertise
in indigent defense systems, prepared a comprehensive report (in contemplation of the current
litigation) on Mississippi’s indigent defense systems under the auspices of the Mississippi Bar
Association.

                                               33
                                                                       3
Similarly, the Mississippi Public Defenders Task Force report              concluded that “indigent

defense remained a vexing problem for the counties” and contained deeply troubling reports

by several circuit court judges describing systemic inadequacies they have observed in their

districts.   While this information was available to the trial court, its opinion does not refer to

these repeated findings of inadequate representation.

         Need for a Statewide Indigent Defense System

¶61.     The Mississippi Constitution, Article 3, § 26, has been interpreted to create a duty on

the part of the state to provide effective assistance of counsel to indigent defendants.       See

Quitman I, 807 So.2d at 406-07.            This Court has recognized that this means that indigent

defendants must be provided with the tools of an adequate defense.         Harrison v. State, 635

So.2d 894, 901 (Miss. 1994) (citing Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84

L.Ed.2d 53 (1985)). Further, this Court has recognized that these “tools” which are necessary

to construct an adequate defense vary depending on the facts and circumstances of each case.

Harrison, 635 So.2d at 901 (citing State v. Acosta, 597 P.2d 1282, 1284 (Or. Ct. App. 1979)).

Among these tools which allow defendants to construct an adequate defense is the right to

counsel.     The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy

the right to have the assistance of counsel for his defense.”      The U.S. Supreme Court has

construed this to mean that in federal courts counsel must be provided for defendants unable

to employ counsel unless the right is competently and intelligently waived.            Gideon v.




         3
          The Mississippi Public Defenders Task Force issued its September 29, 2000, report
pursuant to a legislative mandate to recommend improvements to the indigent defense systems
in criminal proceedings throughout the State of Mississippi.

                                                  34
Wainwright, 372 U.S. 335, 339-40, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In Gideon, the

Supreme Court recognized the dire importance of the right to counsel and ruled that the Sixth

Amendment provides that in all criminal prosecutions that the accused shall enjoy the right to

assistance of counsel for his defense, and that this right is made obligatory on the states by the

Fourteenth amendment, and indigent defendants in criminal prosecutions in states courts enjoy

the same right. Id. at 342-44. Because the Supreme Court has deemed the right to counsel for

indigents in state prosecutions to be fundamental, the State of Mississippi bears the ultimate

responsibility to ensure that this right is preserved.   After all, the crime which the defendant

is accused of is against the peace and tranquility of the State.     The State will shoulder the

ultimate financial responsibility of housing the defendant provided that the State is successful

in its prosecution.   And it will be the state judiciary which will ultimately hear and decide any

appeals.

¶62.    I am convinced that Quitman County’s indigent defense system wholly fails to measure

up to legal as well as recognized, authoritative standards.   To this end, Quitman’s system is in

fact delivering constitutionally inadequate assistance of counsel to indigent defendants.     The

Quitman County indigent defense system fails across the board to safeguard the most

fundamental protections necessary for the equitable administration of justice.     Mississippi has

neglected to ensure that the indigent defense systems in the counties are able to operate

independently, that workloads are controlled, that appropriate oversight is in place, and that

defendants are allowed confidential access to an attorney who will investigate the facts of each

case. The flaws apparent in Quitman’s system are not unique. Rather, they are the result of the

fundamental problem in a part-time, county-based system that lacks state funding and


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uniformity.   In essence, the State of Mississippi has failed to establish or fund a system of

indigent defense that is equipped to provide all defendants with the tools of an adequate

defense, and has therefore fallen short of its constitutional obligation.   Therefore, I would

reverse the trial court’s judgment and remand this case to the trial court for further remedial

proceedings. For these reasons, I respectfully dissent.

        DICKINSON, J., JOINS THIS OPINION.




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