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Public Defense Attorneys Can Turn on You to Help Co-Defendants


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Let’s say you’ve got yourself a mess. You and some of your friends were in a squabble at a public celebration and folks started swinging fists. The guys involved haven’t liked each other in ages and there was just no reason to hold back anymore. 

 

But then, your short-fused friend “Jo-Jo” somehow pulls a gun from his pants. You always knew Jo-Jo had beef with the whole world because of his anger management troubles and daddy issues. Being the sensible one, you grab Jo-Jo’s arm before he does something he regrets. The gun goes off; the crowd scatters, and there’s somebody laying in the grass in a heap. 

 

Now, things are ugly. The cops round up you, Jo-Jo, and one of the other young men who was standing nearest the gun when it went off. None of your families have money, so all three of you use the county public defenders office to fight the second-degree murder charges prosecutors are trying to stick you with. That home invasion charge you took a plea on back in your "wayward years" looks bad right now. But it was Jo-Jo’s stupid gun and stupid Jo-Jo was the one waving it. So, you’re lucky there.


Only you’re not, because now it looks like Jo-Jo and the other young man took a plea deal without telling you and testified against you with the claim you deliberately aimed and fired on the dead young man. These two were your co-defendants, and all of you are represented by the same public defenders office. And though you’re not a lawyer you could swear there was some sort of conflict with attorneys in the same office representing you while also conspiring against you. 


 "It causes me great concern that the court did not frown on this practice." —Constance Slaughter-Harvey.

You’d be right, of course: This amounts to a violation of your 6th Amendment right to non-conflicted representation. But in Mississippi, the Supreme Court appears to think that’s just fine. 



With Friends like These ... 

 

In 2021, a Forrest County jury convicted Hattiesburg resident Tykevious Durr on four counts including conspiracy to commit armed robbery and capital murder of Hattiesburg resident Tomaka Jones. There was nothing pretty about what happened between Durr, Jones and two other defendants. After a skirmish where Jones allegedly threatened Durr with a knife, Durr and his co-conspirators invaded Jones’ apartment. Durr allegedly stood over Jones and shot him several times while Durr’s companion, Andre Snell, pistol-whipped the apartment’s female occupant. 

 

The "female occupant,” Marlena Owens, didn’t see the actual shooting. Public defenders, instead, relied on the testimony of Durr’s co-defendant Tomaz Hinton to tell jurors he saw Durr fire the weapon—which critics says is what prosecutors are supposed to do, not your own team. Durr claims he neither had nor fired a weapon, but prosecutors also called on Snell to testify against Durr, even though Snell gave testimony that was inconsistent with his prior affidavit. For their help, Hinton and Snell got to plead guilty to lesser charges. 

 

Forrest County Public Defender Alex Ignatiev told the court all the other attorneys in the office “had been appointed to represent Durr’s co-defendants.” When big cases like this overwhelm small Mississippi courts, the defense office farms the work out to additional private attorneys to prevent conflict. But that’s not what happened in Forrest County. This caused an “actual conflict” of interest, according to case law: 

 

“If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists,” claims Irving v. Hargett. “The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.” 

 




Mississippi Rules of Professional Conduct makes the same demands of attorneys in the same firm, and Durr argues the Forrest County Public Defender’s Office falls within the definition of “firm.” 

 

“Firm” or “law firm” denotes a lawyer or lawyers in a partnership, professional corporation, professional association, professional limited liability company, sole proprietorship, governmental agency, or other association whose members are authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization,” the rulebook states on Page 10.  

 

Furthermore, the rulebook states, “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.4.[2]” (See page 40

 


Supreme Court Punts 


However, the Mississippi Supreme Court found reversing a conviction on the basis of 6th Amendment protections difficult to do last week, particularly for a man who a jury determined had stalked, shot, and murdered a victim in his own bathtub. But critics say the court’s squeamish reaction now leaves a monstrous hole in the legitimacy of state legal practice.


Attorney Constance Slaughter-Harvey says a recent Supreme Court decision worries her. Credit: Mississippi Encyclopedia

"It causes me great concern that the court did not frown on this practice,” said Constance Slaughter-Harvey, the first Black female judge in Mississippi history. “It smacks of a lack of effective and objective counsel, which contradicts constitutional guarantees." 

 

The majority of the court offered no explanation for its blindness to Forrest County’s constitutional violations, merely that “the Court finds that there is no need for further review of this matter and that the writ of certiorari should be dismissed.” 

 

Justice Jim Kitchens, in dissent, had more to say. 

 

“We should not continue to leave the Mississippi bench and bar in the dark on how to navigate the scenario presented in this case,” wrote Kitchens, a former district attorney. “This direct appeal is the right opportunity for the full Court to announce the approach our jurisdiction will take so that attorneys and judges can commence criminal trials with full confidence that all necessary conflict inquires have been conducted, resolved, and preserved in the record.” 

 

Justice Jim Kitchens dissented in a recent MS Supreme Court decision punting the question of county defense attorneys representing co-defendants against one another.

Justices Leslie King and David Ishee joined Kitchens in his written dissent.  

 

Without a hard decision from the Supreme Court, however, other courts are already stepping over the line. Office of State Public Defender attorney Justin T. Cook argued that alarming indifference is already reaching down from the state supreme court into the lower courts. 

 

“The Court of Appeals majority readily acknowledges the only two facts that are necessary to show structural error,” Cook wrote. “First, Durr was represented by a full-time attorney with the Forrest County Public Defender’s Office. Secondly, Hinton and Snell, who both testified against Durr, were also represented by full-time attorneys in the Forrest County Public Defender’s Office. Despite this acknowledgement, the Court of Appeals refused to address the issue.” 

 

Cook told BGX he has only encountered the problem in Forrest County so far, but he warned that without strong leadership other cash-strapped counties could follow suit in an effort to save the cost of farming defense out to private attorneys. 

 

“It’s a local problem that could spread to the whole state,” Cook said. “Who’s to say some trial judge in another jurisdiction gets wind of this and says, ‘the Supreme Court hasn’t said we can’t do it,’ so let’s save the county board some money and stop farming these cases out to contract attorneys. We’ll just start doing more in house.” 

 

The Forrest County Public Defender Office did not immediately return a request for statement. 


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