Duane Lake was overwhelmed with helplessness between his arrest for allegedly murdering two people in 2015 and his November 2021 trial, when a jury found him not guilty.
The Clarksdale man told the Mississippi Free Press on Tuesday, Jan. 11, that he was 29 in 2015 and denied knowing anything about the crime. He was married, had three children and worked as a welder.
But long before his release after a few hours of jury deliberation last year, he had lost his family. His wife divorced him and left for her hometown in New Orleans, La., with their children, and he is now trying to start his life back again from scratch.
“I lost everything,” Lake said on the phone. “Time is the most important thing in life. It is also the most important non-physical thing. And I lost time, and that can never be replaced. “
Lake said he was without an attorney between his arrest in 2015 and his indictment in 2017.
On Wednesday, Jan. 12, the MacArthur Justice Center at the University of Mississippi School of Law featured Lake in a report highlighting the plight of thousands of people in Mississippi jails without legal representation, especially during that critical time.
The MacArthur Justice Center said that based on their findings, 2,716 detainees out of 5,800 people in Mississippi county jails had been there for more than 90 days. “More than 1,000 have been detained for at least nine months, and 731 have been stuck in county jail for over a year,” the report said.
The report, “Thousands Stuck in Mississippi Jails With High Bail and No Lawyer,” said Mississippi is among five states without a statewide public-defender system “and places the burden of providing public defenders entirely on local governments.” Others are Arizona, Pennsylvania, South Dakota and Washington state.
“I didn’t think a system like this could exist in America,” the report quoted Lake.
A ‘Spiraling Effect’ on Lives, Families
UM’s MacArthur Justice Center Director Cliff Johnson said 85% of criminal defendants in Mississippi cannot afford a private attorney and must rely on public defenders. He added that stories like Lake’s are common with thousands languishing in county jails awaiting trial because they are too poor to make bail.
“I have talked until I’m blue in the face about the improper use of bail by Mississippi judges,” Johnson said. “The law and our criminal rules say that there is a presumption of release prior to trial and that requiring payment for one’s freedom should be the exception rather than the rule.”
“But Mississippi judges demand that people pay for their liberty in 99% of felony cases, presumption of innocence be damned,” he added. “And many of those same poor people who can’t make bail are forced to rely on a public-defender system that appoints them a lawyer at the outset of their case who handles only preliminary matters and then disappears.”
The director added that the indictment can take months or even years in Mississippi because there is no time limit on jail period before that.
“I call this lengthy period without representation the ‘dead zone,’ and it is a failure of Mississippi’s criminal legal system that has devastating consequences for poor defendants,” he explained.
Johnson said Mississippi’s public-defender system denies defendants legal representation for months and years while they wait to be indicted.
In a phone interview with the Mississippi Free Press on Jan. 10, Mississippi Public Defender André de Gruy explained that Mississippi runs a county-based public-defender system. He noted that the practice in many Mississippi counties where defendants are without legal counsel between preliminary hearing and arraignment is devastating to the accused, who are still innocent until proven guilty.
He explained that they sit in jail because they cannot afford the bail set at the initial hearing and there is nobody advocating for a lower one.
“I wish I could tell you how many counties it happens in, but we believe that it’s a violation of (the right to) counsel,” De Gruy said. “In some of these counties, the court only meets every six months, so depending on their timing, they may be in jail almost six months before they can get their bail reviewed or even meet a lawyer.”
“In a lot of our counties, that does happen,” he added. “So a lawyer is there with them at the initial appearance, and if the client asks for a preliminary hearing, they will schedule a preliminary hearing, and the lawyer will be there for that; but once that hearing is over, the lawyer that was with them will not take the case any further.”
“So the felony public defender won’t touch, won’t see the case, won’t even know his potential client until and unless they get indicted.”
De Gruy told the Mississippi Free Press that after spending so much time in jail and the defendants getting indicted, many take a plea bargain to get out for the term served, but that the criminal records become a weight they have to carry around.
“They get out, and now getting a job is even harder,” the state public defender added. “So it’s got a spiraling effect on somebody’s life—they can lose their house by then, it strains family relationships, and you are absolutely going to lose your job if you’re in jail even for a week.”
‘No Greater Shame’ in U.S. Criminal System
Jackson, Miss.-based attorney Merrida Coxwell told the MacArthur Justice Center that it is an indictment against the American criminal-justice system, and particularly Mississippi, to leave defendants in jail without a lawyer.
“I can think of no greater shame in the American criminal-justice system than leaving a person in jail without an attorney during the time between arrest and indictment,” Coxwell said. “People accused of criminal offenses need someone actively pursuing their cases, otherwise they fall into a dark void or black hole of the criminal justice system.”
De Gruy said that a 2018 report called out Mississippi for the practice of leaving defendants without attorneys between initial arraignment and indictment as a violation of the constitutional right to counsel.
“It’s something that has been documented in some of the Sixth Amendment Center‘s studies on the Mississippi system that came out a few years ago,” De Gruy said. “They called it the ‘black hole’—the time between the preliminary hearing and arraignment, where people just sit in jail without lawyers.
How Scott County Reformed
Things used to be far worse in Scott County, Miss., before a 2017 judgment against the county by Judge Henry T. Wingate of the U.S. District Court for the Southern District of Mississippi.
The American Civil Liberties Union and the MacArthur Justice Center brought the case in 2014 challenging the county’s practice of detaining people who cannot afford an attorney for as long as a year without appointing counsel and without formally charging them with a crime, the ACLU said in a release announcing the settlement.
“The case was filed on behalf of Josh Bassett and Octavious Burks, who were detained in Scott County, Mississippi for eight and 10 months, respectively, without ever being charged by indictment or appointed a lawyer,” the MacArthur Justice Center wrote in 2017. “The policy in Scott County and the three other counties (Leake, Neshoba, Newton) involved in the settlement was that no lawyer would be appointed until after arrestees were indicted, despite the fact that obtaining indictments in these rural counties often takes up to a year.”
The settlement required counties to hire a chief public defender, which the MacArthur Justice Center described as “a rarity for rural Mississippi” to “supervise public defenders and ensure they are no longer at the whim of the judges.”
The ACLU wrote that the settlement requires Scott County and the other counties to appoint public defenders upon arrest. “Providing legal representation so much earlier in the process will ensure that arrestees have attorneys at their first bail hearings to argue for lower bail amounts and release until trial,” it wrote.
The organization added that the settlement also prohibits the counties from detaining people solely because they cannot afford to pay their bail amounts.
De Gruy said that Scott County had to change its public-defender system after the court’s 2017 order.
“They redesigned their systems so that the lawyers received notices of the felony defenders—who would be picking up their cases after indictment—on the front end, after the initial appearance,” De Gruy said. “So that if someone was sitting in jail, they would be aware of them and could either do a bail reduction or at the very least monitor the case as it moved through the system.”
Reforms Bearing Fruit in New Orleans
New Orleans, La., is one municipality where such reforms to the public defender system have borne fruit, reducing the jail population and consequently the cost of maintaining inmates.
New Orleans Deputy District Defender Danny Engelberg said in the Wednesday press release that early presentation has helped reduce the jail population and cost the city millions of dollars.
“The data is very clear that if you start assigning lawyers at the time of arrest who advocate for clients throughout the case, you really do identify and drastically reduce the number of people sitting in jail who pose no risk to anyone,” he said. “You get them back to their families and back to work.”
“Early representation has reduced our jail population from over 7,000 to less than 1,000,” he added. “We have saved New Orleans millions of dollars, and I am convinced that we have saved lives.”
The MacArthur Justice Center said that New Orleans instituted reform to provide lawyers to poor defendants from the time of the arrest until the case’s disposition, following a fight for reform after Hurricane Katrina.
For years, the public-defender system in New Orleans included a similar “dead zone” problem that resulted in arrestees there being locked up with no legal representation prior to being charged by the district attorney, the McArthur Justice Center wrote.
Reforming Mississippi’s System
The data that The MacArthur Justice Center released on Wednesday show changes in jail population per county, average time county jails hold inmates, changes in statewide jail population, the link between crime and length of stay, records of all inmates in the county jails, and the comparison of the change in the number of inmates over time and change in length of jail stay over time. The center could not get all needed information from all the counties.
“Finding out who is in Mississippi jails and how long they have been there is difficult,” the center said. “The report released today is the product of more than 500 hours of work invested by MacArthur Justice Center staff and students at the University of Mississippi School of Law.”
“Information concerning the more than 5,800 people currently in Mississippi jails had to be manually entered into spreadsheets because Mississippi has no electronic reporting system,” they added. “A bill requiring a uniform statewide system for electronically reporting county jail census information was considered by the Mississippi Legislature last year but was not passed despite support from prosecutors, sheriffs, judges and the Mississippi Department of Corrections.”
De Gruy told the Mississippi Free Press that the bill will also be considered in the 2022 legislative session and give a clearer picture of the county jails and possibly those sitting there without representation.
“This came out of a task force about two years ago that recommended creating a jail database that anybody could go on and see who is in every jail, how long they’ve been there, what they’re charged with, and hopefully whether or not they have a lawyer,” he said.
De Gruy said it is not enough to know those in jail without representation. His office is championing another bill—House Bill 360—to expand its powers and another yet-to-be-filed for $2 million to fund the expanded operation.
“Right now, we can’t go in and help in most of these right-to-counsel cases, even if we had the money,” he said. “So we’re asking for the authority to do it and obviously asking for the money. “
As it stands, his office is limited to cases in which a district attorney is seeking the death penalty, appeals for felony cases, and representing parents in child welfare cases, he told the Mississippi Free Press. He anticipates that having an eventual statewide public-defender arrangement will involve establishing approximately 25 offices.
“The thing that we think is going to be required to fix this is getting lawyers involved in these cases early on, at least at the preliminary hearing or before the preliminary hearing, so they could even get the preliminary hearing,” the State public defender said. “And we have a proposal in front of the legislature that would allow us to start with some pilot projects and group more rural counties together so they would have an office that would know who’s in jail, make sure that they’re having bail reviews, and lawyers working on their cases even before indictment.”
|Changes in county jail population between December 2019 and December 2021. Source: MacArthur Justice Center|
“Most places don’t have an office; they just have people on contract to take cases,” he added. “And so when you don’t have someone, an actual office, there’s nobody who could monitor a list of people in the jail, even if they had it.”
Prentiss County Has Worse Record
Records provided Wednesday by the MacArthur Justice Center say Prentiss County had held Charles Burleson on murder changes since September 2010. And Panola County has had Tarel Gleaton since September 2013 on allegation of the sale of, or possession with intent to sell, cocaine.
Prentiss County also holds the number-one position in Mississippi among 80 counties reported out of 82, with the average time spent by the detainees being 173 days.
The center’s finding shows that the county jail population in Mississippi increased by 9.38% between December 2019 and December 2021, from 5,298 to 5,795, with the mean stay in county jail rising by 5.73%, from 166.38 to 175.92 within the same period. Between April 2018 and December 2021, the county jail population reduced from 7,282 to 5,795, a 20.42% reduction. However, the average number of days counties hold inmates in that period only reduced by 2.08%, from 180 to 176.
“Despite the threat that COVID presents to detainees and jail staff, the number of people in Mississippi’s county jails has increased by more than 500 since the last such comprehensive report was issued prior to the pandemic in December 2019,” the center said. “The report captures only a portion of the state’s jail population due to inconsistent reporting from counties, meaning that there are even more people jailed across Mississippi, the vast majority of whom are awaiting indictment and trial.”
Lake told the Mississippi Free Press that, overwhelmed with relief, he cried after the jury gave a verdict of not guilty in his case last November. He said that District Attorney Brenda F. Mitchell had sought life imprisonment without the possibility of parole in his suit and explained how he felt he was alone.
“I filed Habeas Corpus, a motion for speedy trials, a motion to dismiss for failure to provide a fast and speedy trial, and my own personal motions,” he said. “I had to really like, literally become a lawyer while I was incarcerated because I felt like nobody was going to fight for me the way I was going to fight for myself.”