Jerry Mitchell

The Clarion-Ledger

Octavious Burks has been in the Scott County Jail since Nov. 18, 2013. Joshua Bassett has been there since Jan. 16, 2014.

A grand jury has yet to indict either man.

They are far from alone. In jails across the state, some are held behind bars more than a year without ever being indicted.

"This is another poor man's curse in Mississippi," said J. Cliff Johnson, director of the MacArthur Justice Center at the University of Mississippi School of Law. "It sounds like something that happens in a Third World country."

On Tuesday, the American Civil Liberties Union of Mississippi and the MacArthur Justice Center filed a class-action lawsuit on behalf of these men against Scott County officials, saying the men have been "indefinitely denied counsel."

These are far from isolated incidents, said State Defender Leslie Lee. "Nobody is advocating for these people. Nobody is investigating these cases."

Mississippi is the only state in the Southeast without a statewide public defender system and one of only seven states in the U.S. without such a system.

"There are so many crucial things a lawyer needs to be doing, way before indictment," Lee said.

But under Mississippi law, a lawyer isn't appointed for an indigent defendant until that person has been arraigned on a grand jury indictment.

Under the current system, "our office has no jurisdiction over county public defenders, other than educating them," Lee said. "We have really upped our training, but our problem is it's not mandatory."

With a public defender's system, she said a public defender in each county could monitor the list of those being held in jail and make sure no one falls between the cracks.

In the wake of Hurricane Katrina, New Orleans rebuilt its public defender system, making it possible for a lawyer to represent a defendant after arrest, she said.

Circuit Judge Marcus Gordon said most people in Scott County are able to make bond.

"I try to set it low enough where they can make bail, but there are a number of them who can't make bail," he said.

Those in jail are presumed innocent until proven otherwise, he said.

Lee agreed.

People sitting in jail have no way to investigate what they are accused of but have yet to be indicted on, she said. "You don't have anybody. You don't have an advocate."

This isn't the first time Burks has been held in jail for a lengthy period without being indicted.

He was held for nearly 16 months on suspicion of aggravated assault and disturbing the peace. He was finally indicted in late 2010, nearly a year after his arrest, but his charges were dismissed months later.

He stayed behind bars for nearly a year after being arrested in 2012 on a charge of possession of a firearm by a felon. He has never been indicted.

This time he has spent 10 months in jail, now charged with attempted armed robbery, possession of a weapon by a felon, disorderly conduct, and possession of paraphernalia. Again, there has been no indictment.

This means that Burks has spent nearly three years in jail since 2009 on three separate charges. He has never been tried or convicted on any of them.

Burks' bond has been set at $30,000, and the bond of Bassett, charged with grand larceny and possession of methamphetamine, is $100,000.

Neither man could afford bond, much less an attorney. Neither had a lawyer representing them during their initial appearance.

The lawsuit points out that because the state of Mississippi doesn't impose a limit on how long a district attorney has to present a case to the grand jury or how long a defendant may be held in jail without indictment, a defendant can be held in jail indefinitely.

Because an initial appearance is a critical stage of criminal prosecution in Mississippi, defendants should be entitled to legal counsel under the U.S. Constitution, the lawsuit says.

Lee said it's troublesome that while courts recognize the right to counsel, it's not being provided to some people.

"They go to jail," she said. "They lose their jobs."

At the end of nine months or a year when the defendant is finally indicted, "he says to his lawyer, 'I just want to get out,'" she said. "There is tremendous coercion to plead guilty to just get out of jail. You can't blame them."

Contact Jerry Mitchell at jmitchell@jackson.gannett.com or (601) 961-7064. Follow @jmitchellnews on Twitter.