The Costs Of Zealous Advocacy

The Mississippi Supreme Court has affirmed the imposition of jury costs against a defense attorney

As part of negotiating a plea bargain for his client, Attorney Zachary Jex committed to paying the jury costs associated with the trial in the Circuit Court of Claiborne County. On appeal, Attorney Jex now seeks to retreat from his commitment. The circuit court was legally authorized to impose these costs on Attorney Jex. The record confirms that he voluntarily agreed to pay them. We affirm the circuit court’s Order Requiring Defendant’s Attorney to Pay Costs of Jurors Appearing for Duty on September 12–13, 2023.

After a mistrial

The second trial went forward, and on September 12, 2023, jury selection began. Because the courtroom’s air conditioning failed that day, at the request of Attorney Jex, the trial was continued until the following day at the Claiborne County Emergency Management Facility.

The following morning, Attorney Noah Drake, also representing Davis with Attorney Jex, approached the prosecution and suggested a plea bargain. Attorney Jex incorrectly refers to this offer as “the same plea deal Counsel had offered since 2021.” Both agreements included dropping the aggravated assault charge and pleading guilty to two counts of manslaughter, but the December 2021 offer included only time served, whereas the 2023 offer “sought 15 years with 10 to serve[.]”

The prosecution countered the new offer and “sought 20 years with 15 to serve.” Davis accepted this counteroffer.

After a plea colloquy the court accepted the plea and ordered defense counsel to pay jury costs

Following the submission of a written version of Attorney Jex’s motion to reconsider and a response from the state, the trial court issued its Order Denying M. Zachary Jex’s Motion to Reconsider the Order Requiring Defendant’s Attorney to Pay Costs of Jurors Appearing for Duty on September 12–13, 2023. Attorney Jex now appeals to this Court from that order.

One side pays all

Judge Irving was correctly implementing both the letter and the spirit of the law when she required the jury costs to be paid by one of the bargaining sides. And District Attorney Shorter was responsibly protecting the interests of the State when she refused to pay the jury costs.

SULLIVAN, JUSTICE, DISSENTING:

I disagree that Attorney Jex voluntarily made a “clear commitment to the trial court that he would pay for the jury costs.” Maj. Op. ¶ 12. I agree with Justice Chamberlin that 1) the prosecutor “made a statement in the hearing that contradicted the record as to how the final plea agreement came into being,” 2) the State “waited until the jury was present to make its first offer,” and 3) it is unjust and “unfair” to permit the State to withdraw its plea offer, unless the court costs were assessed to defense counsel. Sp. Con. Op. ¶¶ 25-26. Based on this Court’s standard of review, I would find that the trial judge abused its discretion by participating in plea negotiations and ordering Jex to pay the jury costs for his client’s criminal trial. It would be manifestly wrong and clearly erroneous to permit a trial judge to assess costs to a criminal defense attorney that was zealously advocating for his client and had not disrespected the judge or the judicial system. Respectfully, I dissent.

The prosecutor

The majority states, “[the prosecutor’s] decision that the State would not pay the jury costs does not represent prosecutorial misconduct[.]”5 Maj. Op. ¶ 19. Additionally, the majority approves of the prosecutor advocating zealously for its client’s interests, the State, “when she refused to pay the jury costs.” Id. The majority is mischaracterizing the prosecutor’s actions. The prosecutor did not merely declare its refusal to pay the jury costs. But the prosecutor declared also that if the State were to be taxed with the costs, then the plea deal was “off the table, because we aren’t going to pay[.]” Maj. Op. ¶ 7. This declaration is an ultimatum, not an attempt to negotiate about the payment of jury costs. See Maj. Op. ¶ 19 (“It is not only reasonable but expected for a prosecutor . . . [to negotiate] a plea bargain to consider the costs to the judicial system.”).

While praising the prosecutor’s actions, the majority does not recognize the lengths that Jex went to advocate for his client. The State’s ultimatum, i.e., threat to take the plea “off the table,” forced Jex to either agree to pay the costs or compromise his client’s best interests.7 This compulsion strong-armed Jex into agreeing to pay the jury costs. If Jex had not agreed to this ultimatum, then the deal would have been withdrawn, subjecting Jex’s client to proceed with the criminal trial and to potentially receive a harsher sentence.

Conclusion

Because Jex was compelled to agree to the State’s ultimatum to pay the jury costs, it would be a mistake to penalize a defense attorney that had not attempted to impede the judicial process. I would find that the trial court abused its discretion, I would reverse and vacate the trial court’s order requiring Jex to pay jury costs, and I would remand the case for further proceedings.

(Mike Frisch)