Mississippi is one of just seven states in the U.S. that doesn’t provide funding to cover the costs of public defense across its 82 counties. Many indigent defendants throughout the state rely instead on private attorneys paid a flat-fee by the counties to take cases when assigned to them by local courts. The Mississippi Supreme Court, back in 1995, declared that the quality of representation for poor defendants "goes to the very heart of how we as a civilized society assure equal justice to rich and poor alike." Unfortunately, 20 years later, some counties in Mississippi are spending less than $2 per capita on indigent defense. To make matters worse for poor defendants, there is no state oversight of this patchwork system. Circuit court judges are the highest legal officers in the counties, and the only check on their judgement is the ballot box. At least one of these judges, Marcus D. Gordon, has admitted to not assigning public defenders until after indictment—when formal charges are filed against a defendant. Gordon has claimed the policy is necessary because of scarce resources. But in a state that sets no time-limit on how long someone can be held in jail before indictment, the result is that poor defendants who can’t afford bail routinely end up in jail for months without ever speaking to a lawyer. Brandon Buskey of the American Civil Liberties Union (ACLU) has called the resulting system a “perfect storm of constitutional violations.” In 2014, the ACLU filed a lawsuit against Judge Gordon and Scott County, where he presides, on behalf of former inmates for excessive pretrial detention and denial of counsel. Fault Lines correspondent Anjali Kamat spoke to Judge Gordon about the pattern of pretrial detention in his jurisdiction and asked him to respond to allegations that his policies are violating inmates’ constitutional rights. An edited version of the conversation follows: As far as I understand, Mississippi law says the right to counsel takes effect as soon as the warrant is issued for an arrest, is that right? It’s right. So as soon as someone is arrested, they should be entitled to a lawyer. Right. A number of recent studies have shown that having state public defenders can be more cost effective and provide better representation for defendants. So I’m curious why you wouldn’t petition for a state system. Because I don’t have the authority. That’s above me. I have a responsibility of civil and criminal cases all over four counties. Lady, I work from Monday to Friday night.

What is the basic minimum that you believe a public defender should do for their client? As a retained lawyer would do. He would investigate beyond the information he receives from that defendant. He investigates the background of the defendant, his opportunities in life and whether he has accepted his opportunities. They try to determine whether he is innocent or guilty. Do you think public defenders have enough time to do the proper investigation? In most cases they don’t have enough time. Those people work hard. The inmates we spoke to said they spent maybe 10 minutes with their public defender, and they met their public defender for the first time a few days before trial. Are you believing the statements of the defendants? They will tell you anything you want to hear. We spoke to a number of inmates who say they have been waiting to speak to an attorney for nearly a year. Well that’s not right. I know that’s not right. But I don’t know that happens. I never know who is in jail. The sheriff doesn’t come and tell me. The prosecutors don’t tell me. And the defense attorneys don’t tell me. I might read it in the newspaper, but that’s usually the way I find out about it. They said they had asked for public defenders and that investigators told them it’s your policy to wait until after they are indicted. When they prove that they are indigent, they cannot afford to hire a lawyer. At what point do they have to prove that they are indigent? At the time of the indictment—at which point, I will appoint them an attorney. But what if months pass between the arrest and the time of indictment? Lady, people charged with crimes, they are criminals. And they say what meets their purpose. Now they told you they had requested an attorney. They had not requested an attorney in 98 percent of the cases. You never hear of that. I never hear of that. I don’t know whether they have requested an attorney or not. They would not be entitled to an attorney until indictment, as a policy of this district by myself and the other circuit judge. It would be an additional burden on trial attorneys to go out there and investigate every single case.

The criminal system is a system of criminals. Sure, their rights are violated. But not all rights are violated. Judge Marcus D. Gordon

But these people are spending months before speaking to counsel. Well that may be true. That’s the hardship of the criminal system. Are their rights being violated? Lady, the criminal system is a system of criminals. Sure, their rights are violated. But not all rights are violated that you’re calling violation. People are being held in jail not seeing a lawyer for months on end—whether they are innocent or guilty. They are being held for up to a year, over a year, and violations are happening. What do you think is the solution? You say that, but you don’t know that. We’ve spoken to a number of people. This is documented, even law enforcement agreed. A person in jail would tell you that. The sheriff told us this, too. People are being held in his jail for months before seeing a lawyer. It’s not the knowledge of the court. You say that, but I do not know that. His rights are violated only if he exercises his rights—to ask for an attorney, to ask for a trial, to ask for prosecution or discharge. So if someone is arrested, they come in, they ask for a public defender. How long do they need to wait to get one? You set the rules here, judge. I don’t have the authority. The law is handed down. There is no limitation that has been set by the court. Is it your policy, judge, to make inmates wait until after they have been indicted in order to be appointed a public defender? Not necessarily. A person charged with a capital murder, I try to get him an attorney as soon as I become knowledgeable about the arrest, not the facts of the case.

What about in other cases—burglaries, home invasion, possession of drugs? Lesser crimes than capital murder. So they have to wait? They have to wait. How long? Until they hire an attorney or get into the system of requesting an attorney. How long does that take? It takes a while because it must first go through the system of indictment. Then he is appointed an attorney. So for non-capital crimes, indigent defendants have to wait until after the indictment to see a public defender. Is that correct? That is correct. That is your policy? That is my policy. Is that the policy of the state of Mississippi? No. But that’s your policy? That’s my policy. You do acknowledge that because of this policy, some prisoners’ rights are being violated? I do not acknowledge that. I do know that there are innocent people, who are charged and go through the system who are not guilty, in the penitentiary. But there is nothing I can do about that. Do you think it’s unfair that if a person has enough money and can hire a private attorney, they get access to a better system of justice than an indigent defendant? I do not think that. They can have an attorney look into their case immediately. They don’t have to wait until they are indicted. I know that happens. I know that’s true. But I do not believe they have a better chance at an acquittal with a private attorney than a court-appointed attorney.