please to court my name is victor flaked s from tupelo mississippi here on behalf of jessica jessica jessica was arrested in april and did not see a judge until the last day of july she spent ninety six days in custody before ever appearing before a judge despite repeated protest of innocence and repeated requests that she be taken before a judge and inquiries made by other witnesses that she be permitted to see a judge so that her bail could be set the defendant choctaw county and a defendant share made a conscious decision to disregard her right to appear before the court so that she could set so that she could have counsel appointed so that she could have an opportunity to have the false charges against her interest and so that she could have her freedom the ability to avoid having had her daughter's custody taken from her and suffering a ninety six data tension for zero offense which she did not commit are where you'll agree though that there is not a constitutional right to bail in all cases where the where the state provides that right your honor in mississippi does that right does exist it was absolutely bailable offense not a capital offense under mississippi law and or took about whether there's a constitutional right to bail as i heard from whether you should be brought before a judge and have a chance to argue for bail that's a different question but is there a constitutional right to bail us out your argument yes there is where the state provides that right to bail that is where the state says you have a right to bail on a specific for these charges you're relying on the mississippi constitution bail provision yes and i believe federal authority that says that when that right exists under state law it's cited in my brief then that right exists so that's where the eighth amendment claim is also there's a general liberty interest that you need process before you deprived of liberty even without recourse to state law right so if you are not a right to bail certainly people can be held if they're a flight risk or they're a serious danger but if there's an interest in that liberty don't you believe the right to hearing under the due process cause before you that liberty can be taken away from you that's precisely the issue where you have a warrant issued as here what is the right of the individual to appear before a judge so that these other fundamental constitutional rights can be met and i believe that these constitutional rights are fundamental is it is this common i mean it seems to me in this this helps you to exchange of to prove this is the policy of the county it's it seems to me this was nothing specific about your client was she upset the sheriff or someone in the jail and they said no we're going to hold you for ninety plus days it seems this is just the policy that if you get arrested after the court term ends then you have to wait till this next court term which can be a matter of months it is so this would have happened to anyone arrested around this time it is a sick sick and then lee common problem in some of the smaller counties throughout our state what would what would have happened if someone had she was arrested on a on a warrant based on a grand jury determination of probable cause that is correct let's say someone had been arrested that same night just because they got enough fight in a bar in the police go up to the bar and arrest them for fighting assault those folks who need a probable cause or would they have had a wa august how would the county they don't know let's assume that it was either a misdemeanor or perhaps of a case that would have implicated a felony in mississippi those individuals would have been taken before a lawyer just as court judge within forty eight available because judge joey loper is office is right there in charge ok but he's not sitting at the time in whatever no he was it but the practice in mississippi is sheriff calls lets the court kno who they've got in the jail because they're the only people who lets them know how long they've been there and basically say i got a couple prisoners over here i need to write and then the arrangements are made so that that constitutional lawyer saying in other counties but not in around i don't completely i mean i know the concept of term of court i don't know it's still mattered anymore because like i look technically had a term of court when i was a state district judge i came in every business day  there was never any difference it wasn't like oh the terms now i get three months off i mean that just never happened so i'm a little puzzled by the notion i understand riding circuit but i mean in texas we have judges that serve in one hundred fifty mile radius and i've never heard of them saying well i won't go see a prisoner for three months because i'm not resident in that county for today they get in their car and drive your honor the judges uniformly will go were ever they're told they need to be to ensure that a defendant's constitutional rights are protected but if the sheriff doesn't tell them and in this case he didn't tell them and not only didn't tell him he says i don't have to tell anybody you're going away to law and so you're saying there's no evidence that there would have been no way for the sheriff to find a judge a judge is like look i'm i'm fishing for three months so you know later but rhett rather to the contrary judges could be arrange whether it's that judge or somebody coming in from another county or whatever could be a range at least periodic lee to come in and hear whatever number of prisoners have kind of stacked up in the interim that's how it's done throughout the state that's how it's been done twenty years and have had a substantial criminal practice which is why the facts of this particular case so agree chips but the district judge did not find it agree just and this three judge also serves in mississippi and she's has a lot of experience in mississippi so she does your and it does that show us that it's not clearly established these rights if a you know very smart and very well versed in mississippi law and so forth judge doesn't feel the shock that you feel your honor i cannot explain what the district court's thoughts were i have appeared before her when she sat as a circuit judge and have the deepest respect for whatever disagreements we may have about the outcome of this particular case it is utterly to me inexplicably how someone can sit for ninety six days in jail and the case be resolved on a on an out termin probable cause basis that doesn't address the fundamental issue of what right liberty interest does a person who is arrested on a warrant whether a k p is warrant or warrant issued by a judge after affidavit is filed what right that person has to appear before a court in a prompt basis to have bond set to have an attorney appointed to have those fundamental liberties ok you mentioned probable cause and we asked you to take a look at man while verses city of joliet which addresses which amendment cases come under and you all didn't bring a fourth amendment and you haven't challenge the determination that there was probabl cause to arrest and detain your client so is that the end of it if you don't have a fourth amendment or is there still a fourteenth amendment lurking around pretrial despite what the supreme court said and in man well i think if we look at the court's decision  and i struggle with the case in terms of trying to reconcile it with what we're looking at here and i believe that you can look at joliet the manuel case as falling under the gersten veep you line of cases this case falls under the baker versus mcallen line of cases talking about the liberty interest in freedom from pretrial detention that the issue here really isn't a joliet issue that case resolved the conflict between the seventh circuit and the other circuits regarding whether or not a freestanding right to malicious prosecution exists which discord resolved in custody on overseas for bozo and ultimately to decide whether or not it was a fourth the real fourteenth amendment concern or the supreme court came down on the side that that is a fourth amendment concern when you're making these allegations had i made those allegations as case law existed in mississippi at the time and in the fifth circuit at the time i've been bounced out of court because i had an informant who filed a who gave a statement to law enforcement officers specifically stating this girl sold me pills under no circumstance would be officers who damn went forward with charging that person could have been said to have lacked problem it hollyweird to me b and maybe i mean i haven't seen the film but it sounds like as soon as the da saw this film it was like oh  now and so that made me kind of wonder was there probable cause because you have an informant but if an informant says you know i gave money to x and there's a film that shows clearly that didn't happen then wouldn't that negate probable cause i believe that understudy of joliet jake cox decision has to be reversed because there was an absence of probable cause however there's no way that the officers would have been required to have you divinity zero prior to presenting it and then they get the qualified immunity but they would be they would have been a you know i interested in that line of i assessed all of that i didn't want to get into neutral in the media area i didn't want to deal with that garbage because what i felt was i have an absolutely clear cut violation of fundamental constitutional rights if this isn't remedied how many more people are going to languish in jail that's true but we always have two issues in qualified immunity one is and we don't have to address and both are one was was a constitutional right violat which is the discussion we've been having and then whether it's clearly established and one thing we can do we don't always do it but we can as stablish it in this case but then say it one clearly established before we did that in morgan b swanson which wasn't a police officer was a school but we said we have a circuit i personally enjoined in the whole thing but we the fifth circuit said that you did wrong but no one clearly established but now we're clearly establishing it so don't do this again so why wouldn't we do that here go look ok this is wrong but you know it was confusing so now go forth and do better i would disagree that it's confusing i would say that in the year two thousand and sixteen at the time that this happened twenty and ten the year two thousand that every sheriff every officer know that if they arrest somebody and they're being held in jail that person must be taken before a court and you may not unilaterally decide to hold them in your lockup for an indefinite period of time ok so let's talk about the period of time because since there was a grand jury indictment she didn't have the same rights as the guy that is the hypothetical guy at the bar that cost a mention of knowledge to be brought in front of this justice or whoever so what is this clear time line the only time i see is this thirty day arraignment which judge a cock focused on the fact that the arraignment was waived although that was after the fact i know that but is that the time period thirty days is it less is it more is it a reasonable man or woman standard or what is it it's less it's ok yes it should be less but as a as a matter of what the sheriff would have known based on clearly establish tory and other rules hearken back to the eighth amendment hayes case is he would have no had to know because it's written in stone shall be arraigned within thirty days after the indictment so then you've got the statutory provision requiring an officer to carry a person without unnecessarily delay now that rule is incorporated into the mississippi rules but it existed statutorily before your honor six and that's the best guidance that i could get say no more than thirty days because of the arraignment statute not a more narrow way to characterize what you're saying because if the court ruled it could not be under any circumstance and given the statutory requirement that she be allowed to the detention in manuel was forty eight days i know this because it was half as long as his jaw spent in the choctaw county jail having said that i think the answer to the question your honor regarding the constitutional differences between city of joliet is manuel was taken the same day of his arrest before a neutral magistrate who found probable cause to hold him understanding it was based on false statements he was subsequently before the court again and arraigned after his indictment and then he continued to be held in this case there was an indictment and then the rest of the judicial plate process was completely truncated by the sole decision of sheriff paul for to hold her time is up your honor thank you ok you fourth amendment are afforded when there's a neutral probable cause determination and the indictment was four months old your honor and what i can give you a little bit of mississippi context at a school in the late eighty's to get my last semester of credit i worked for a circuit court judge as and there were others in my class that work for district attorneys at that point judges didn't have court administrator is district attorneys maybe had one person on staff there were no staff attorneys they had to get a law student to do it fast forward to now circuit court judges have court administrator there are regularly set public defenders there are staff counsel in every circuit court judges office in mississippi mississippi's made a great deal of progress one of the issues here that i believe is pivotal when you were asking about clearly established law is that in ramsey versus state addressing what would essentially have to be a procedural due process issue it addressed a seventy three day delay of somebody hailed pursue it to an indictment k b s and they said that was ok now i would submit to the court that the fourth amendment question of course was not play it but the fourth amendment question is much clearer now your honor book cause of man well you know there was a great debate in in like zero three when this cast a lot of the decision came out i really had to scratch my head i had scratched my head again lookin at it in preparation for argument but the justice here in the supreme court decision especially if you will dig into footnote a she makes it clear the fourth amendment does not drop out and i love the line which does not drop out until when the trial is over we look at detentions pretrial now under the fourth amendment by the plaintiff here is not the claim being made in may and well that there was a lack of probable cause to hold the plaintiff because there was a grand jury indictment which is probable cause and there's this entirely separate line of cases are cases in  jones versity of jackson for example it's bound to procedural due process right to have a court hearing to get these issues that are decided preliminarily in every criminal case like bail like an arraignment being advised of the charges being advised of your right to an attorney so i mean we generally say that we don't view a supreme court opinion as overruling our precedent unless it's clearly doing so man well we been treating a man well  claim as a fourth amendment violation was only the seventh circuit that wasn't so what in man well i mean i agree it's hard to tell it exactly how far it goes but one man well clearly says this separate line of cases like our jones case which is about the reinforcing there's no substantive due process claim here we've got to look at this if anything as procedural due process which is what jones i read jones into a siege will do process yes you're right when i give you a case like ramsey versus stay where well first off what before the judge the same reason that a federal court could not have granted her hey vs mandamus and hey vs two mississippi would be available that is an adequate remedy so that i slept in there with no lawyer no one will talk to her no one will or basically access the world and so she's she's expected to know this thing that you just mentioned that she should bring a mandamus against the sheriff right i said sitting there in prison you don't understand them but  l she has to do is write a letter a second hand and let us wait counsel why shouldn't the sheriff know the law and follow it why should that be the rule rather than expecting some random citizen to know all this detail room full of lawyers and law clerks and interns and here might not have known absolutely and the sheriff followed every aspect of the law applicable to a mississippi sheriff a mississippi sheriff once there is say the difference is you talk about the justice court it's next door it's in the same building when somebody comes into that jail they walk in next door to justice court when there is a k b s that means under our mississippi constitution it is exclusive to a circuit court judge and i'm not standing here to blame it on the circuit court judge but the book stops with a state officer when you question policy and policy or under military law should should have been an arraignment within thirty days do you concede that no your honor that has been as as the ramsey case  if the sheriff refused to bring him to the court it would still be ok but you're all going there but how does this judge so let's say the judge was sitting there you know working on signing orders or whatever you do when you don't have court how's that judge supposed to know ms joshua sitting there in jail i mean the judge isn't out there visiting the jail the one hand a this lady i haven't seen her before bring her in the judge has to be notified by someone that hey here's our list of arraignments could you judge x could you please set a hearing and then if the judge says sorry i'm fishing for the next three months then it's off the sheriff and it's on the judge i get that there's and i see no evidence here indication or even argument  that happened almost immediately and this is not a situation of the sheriff being inattentive a number of things in the stipulated facts clearly run contrary to that first she was able to clear local charges hour when she said i want to go in front of a choctaw county judge so that i can get a bail set on this case that she was entitled to bail out and got bail on when she finally got to see a judge right and the it from what i can tell i actually know your honor he followed every order that he was required to do ok well you know what this does sound like a case where if we find it's not clearly established we need to clearly establish it because as far as i'm concerned your answer show me why choctaw county is such a mess as least as far as i can tell from the record here because if you're the one given him advice you're advising him this is ok it's not ok to me the only question is clearly established because it is not ok i don't care where the judges and if they're fishing and all that they need to get another judge or send him to the same j p because she should be brought in front of some sort of neutral decision maker to get a right to bail sooner than ninety six days and to this set of facts have run and run and run sheriffs what is your solution now uniformly across mississippi the solution has to be we have to find the mechanism to get the circuit judges with exclusive jurisdiction to do something and our term statutes may be arcane but they are what they are if you're going to hear something in vacation in mississippi it is at the so discretion of the circuit court judge a state officer ok so what evidence is there that this sheriff brought to the circuit judges attention the presence of mr jack sure anybody else and the circuit judge said i'm fishing for three months leave me alone or whatever i'm in vacation where the term is the return which is confirmed in the record when the court gave notice to the public defender of the upcoming term now best suggestion i've had at any sheriff in mississippi that i've talked to with this problem is they say no wait a minute if it's a misdemeanor and we can't get anybody there's a statute in mississippi that let's legislatively that the legislature has allowed a share to or a war somebody or set an emergency bond which i think is great in a felony their hands are tied now there is also a situation where if someone simply writes a letter and the mississippi supreme court comes back and fills the judge to have a hearing certainly can happen as well but those issues are not issues that mississippi sheriff can solve those are issues that one of the legislature either has to modify the statute a grant let me ask you this because there may be an endemic problem and it's kind of interesting because just yesterday i was on a panel that denied an injunction in a harris county bond situation slightly different situation but has some overlap here so what you're telling me is that mississippi has a very odd procedure that results in a lot of people being  denied their constitutional rights which i think is interesting but we're dealing with a split stipulated facts i did not see anything in the stipulated facts that show that the sheriff and he certainly did that the sheriff brought this to the attention of the judge that we have people that need arraignment so that the judge could say no i refused to grant any arraignment hearings or yes i will so tell me exactly on what on april twenty sixth notice was given back to the court via service of the return that was the sole statutory duty of the sheriff beyond that he had no jurisdiction to give her a bond my mississippi sheriff would love the authority to grant bonds to a felony or grant some kind of diversion but that's a legislative fix let me go back to a question i asked earlier you said there was not under mississippi wa forget the constitution for a second a right to  within thirty days why do you say that given the statute that says an agreement should be held within thirty days i just don't understand why you're saying that guy well i know there's exceptions if they're being held in a in a separate county and people get arrested in separate states and all that about judicial determination to do i give someone counsel do i give them bail so you agree on a rule does provide a you just saying the rule gets trumped by what i what are the stats and the mississippi supreme court for instance in ramsey  has held that seventy three days was not unreasonable the fifth circuit there is an reported decision harris versus pain which is very telling you had a gentleman by the same name of the person in died it so i'm mistaken identity baker type case where they come in and they spend four months down in a an institution for their arraignment and the circuit dismissed and found that it  immunity defense there's no clearly established issue with the county right issue with the county and a lot of the briefing the rest of him and no liability there's to be attached to a policy or custom but that there's no qualified immunity for the county where the right certainly not under mono qualified immunity is different different animal but here's the deal underpinned by policymakers decision is what controls and this is a judicial act acts of setting bail acts of determining probable cause acts of appointing coun transporting the person to the judge is the sheriffs act but transport actions being a challenge not any decision the judge made the judge didn't have an opportunity to make a decision the judge or are we to put people into the back of a car and ride them around from courthouse to courthouse until we can get a circuit court jury to listen to what the woman's been sitting there for ninety three days i think it would be i think it would be wonderful but it's not kind of marshals dr people all over the country or even even the world i mean mississippi has a structure of state law that is itself unconstitutional so that's not your client's fault the county or the share that's really what you're arguing whether a civic structure is not a is  structure is that these judges can sit around for three months and say nanon at everybody that's the structure you just announced which makes little sense to me and i understand small counties with few judges and people riding the circuit and all that they do that here in texas but i've never heard that that justifies this kind of delay may justify some period of delay but it's certainly texas is bigger than mississippi and so if they can drive around texas they can drive around mississippi even this circuit court i mean this district judge when she was a circuit court judge let me tell you a story and it uses some of the time it's seven pm on a january rainy evening in pocket mississippi and we have been granted in for three days on the bench trial over pursuit we get a break to get the next witness ready i'm in the back of the courtroom because the place we're going to look at the front in the judge's never left the bench she's sitting there in her robe taking a guilty plea this same judge is our district judge now she understands how this works but ultimately we get back to the clear fact that the detention is governed by the fourth amendment substitute process does not apply procedural due process is satisfied by the existence of a state law remedy which there is and then ultimately if there were a constitutional violation your  mississippi only having two court terms a year for a given county if there were a constitutional violation for that it would not come home to the county because of separation of powers that is judicial that is the state in nature the state makes that policy there is no ira already want to do anything but follow it i guess you're saying if there is anything on cost to tional here it's on mississippi and not the county or the sherif certainly qualify me for the sheriff because he wouldn't have been clearly established and on the county they're not the one making the policy it's the state that's your argument and i'm not sure you want to pemba our tells us that it tells us that the state officer is not a local policymaker  policy making for law enforcement in mississippi counties is the sheriff of this is not a law enforcement decision this is a judicial decision and i've got to get a lawyer is there anything with two minutes left but i can answer this is this is worrisome to say that i have fretted over it and your honor i have brought it up with groups and groups and groups of sheriff so my fix my best fix came from a south mississippi sheriff and in a seminar couple months back and he said why don't they just him in the statue and let us see if we have to sit bail for a felony that's the best answer i've ever heard of the problem is i don't know that it wouldn't violate separation of powers that the legislature did that because once you're indicted mississippi you're exclusive to a circuit court judge he has to court terms that he has to meet and then he or she has complete discretion as to hear something in vacation so i don't know if that's that's a fix it's the best fix i can tell you this the fact of litigation like this and my friend here on the other side the fact of litigation like this makes it better we're all trying really really hard to make it better in mississippi you gave me a choice i'd have a statewide public defender situation in mississippi and we fix a lot of things but if if if courts start picking where to push with the limited financial  mean i was a state district judge civil cases and a ton of stuff was filed in my court and i'm going to have to confess i didn't read it all as it got filed or ever unless it became something i needed to read because we had a hearing or that's it but that's so that's what you're relying on just one to be clear that you're relying on this file stamp for what you told me about the judge had it or whatever undisputed that it was ok thank you all right let's hear your  what do you say to the argument that if the policies messed up in a on the candidates on the state so don't hold the can you counsel mississippi law clearly holds that prosecutions are county functions mississippi statutory law says that it is to share who bears  responsibility for the jail for everybody who's in jail for their upkeep for their safety for their transportation for everything pertaining to them all he needed to do was pick up the phone and talk to joey loper who i served with on a bar complaint tribunal he could have called clarence the morgan kim morgan who i've tried cases in front of and dollars to donuts they would have stopped what they were doing to ensure that the fundamental constitutional rights of jessica what about these are the same judges that apparently have a clerk of court that stamps this stuff and puts it in a file and that's it and they don't have to seem to have a policy that says make sure i know about people that i have had a return k p s and are sitting there rotting in prison so is that on the judge or is that on the county or is that on the sheer of her how he is his argument essentially is you can't tell a judge what to do and i'm familiar with that concept and so how do you answer the act that we have a judge who is clerk of court filed this document and again i don't think that means the judge read it i get that but the judge is still responsible for what's going on in their court so how do we separate that out between the responsible as a judge transposer the share the responsibility to the judge at least in so far as ethical duties and rules of judicial procedure would have been to conduct an arraignment once he had notice i say he or she in this case there were two male circuit judges once he had notice from the sheriff that there north or west texas north west texas my circuits one of the largest in the state in compas and seven counties in the furthest drive anybody has to make if there centered in tupelo which is michael in town and where most of the judges are at is an hour in ten minutes judge a cock is a conscientious jurist i can not understand this decision well maybe she's going with what he's saying that she knows the way things work in th kind of how it is judge a cop conducted arraignments in the lead county detention center once she was notified that there were people there are circuit judges do that the sheriff of our county who i have had innumerable cases with over the years and with whom i've disagreed let the court know who's in his jail who needs to be brought before them normally and ninety percent of cases there's just justice court procedure affidavit filed you get that bond and then you wait entering this case is that ten percent of cases where they go directly to indictment in this case it was a year after the alleged events you know it was hand i'm wondering let me throw this out there it seems like we're talking about a lot of facts how things are done so also so and so that seems very fact based you know this is a very preliminary determination at the outset of the case and that's separate from the qualified immunity but at least as far as who's policy it is county versus state and how things are done and whether there's any power for anybody to do something different this is really fact bound and something that i'm not sure i should just be guessing at based on what you i am not in doubting what you all are telling me but it sounds kind of like the wrong place for me to be developing the facts here as fun as this is but it seems like the wrong situs for a development of the facts this is properly before this court and the facts that have been provided to the court are all that the courts need to determine what the constitutional issues are being the fourteenth amendment right to liberty requires that a county sheriff and a county see to it that the people in their custody have timely court appearances after a risk by one that's the constitutional rule that was a rule with which opposing counsel agree and i'll drive it that rule who violated in how it was violated seems fact and a man think that somewhat helps you because again that would mean it would go back for more factual development but then you get into that issue of qualified immunity and clearly established on the sherif who sounds more sympathetic here than he does in the papers pavers he sounds pretty callous his presentation is a list sheriff is doing his best he's got a judge who won't answer the phone or whatever in this case unlike the hayes versus faulkner we don't have a sheriff who failed to implement a policy to see that the people in his custody receive timely hearings for the protection of their fundamental right we had a sheriff who faced with that question deliberately said i don't have to do nothing you're going to have to wait these ninety days if that doesn't constitute deliberate indifference if that doesn't constitute a complete disregard for the norms of american jurisprudence for american law for the duties of law enforcement i don't know what does my time is your time is very interesting thank you both that was so that was actually a very helpful and