The Louisiana Supreme Court has come down on the failure of courts in New Orleans to bring folks arrested without a warrant before a magistrate for a probable cause determination within 48 hours. Their opinion is here, and a Times Picayune story about it is here. A survey cited in the Louisiana Weekly concluded that the practice of ignoring the 48 hour rule occurs regularly.
As the opinion notes, this has been clearly mandated by the U.S. Supreme Court, and the Supreme Court equally clearly has held that waiting from, say, Friday Morning until Monday Morning is waiting more than 48 hours.
It’s been my experience that Mississippi Justice Court judges follow this we-don’t-have-to-work-on-weekends rule, regardless of constitutional requirements. Is that everyone else’s experience?
Client arrested in domestic dispute Thursday night. On Monday I call the justice court to see about bail. I’m told the person in charge of that (the prosecutor?) has a sick kid and nothing will be occurring that day. For some reason I tell the person that the Constitution requires a hearing within 48 hours of arrest (It’s not like I think that’s gonna get me anywhere). She replies, “the Constitution allows for people to get sick, doesn’t it.”
Later I went before the judge. He made a call or two to get a handle on the circumstances of the arrest and set a bond.
Yup.
I also know someone who was held in Scott County. She was held in the jail on Wednsday night and was never charged until Friday morning. Was not under arrest but was not allowed to leave.
48-hour rule? Constitution? Rights?
Forget it, Jake ….
The problem is, there’s no remedy for the violation. The only recourse a person has is the possible suppression of any incriminating statement made after the initial should have been held.
As our Mississippi Supreme Court once said in one of its more lucid moments, “A rule that is not enforced is not a rule….“
My brother was held over an entire weekend once (62 hours). In many state jurisdictions, judges have flexible calendars and work banker hours with floating days off. As a remedy, they should rotate on Saturdays to correct this wrong.
Matt:
Suppression? giggle. I had a case where they held my guy past the 48 hour mark because they were doing “investigation” for things to confront him with– I think they were waiting for one particular cop to arrive to help interrogate him. So, with the Justice Court judge waiting in chambers, his soon-to-be-appointive defense lawyer twiddling his thumbs at the courthouse, they held him across the street at the jail. After about 5 hours of this, they got him to make a statement. (possibly knocked him around a bit to warm him up for it, depending on who you believe, but that’s a different part of the story and not as certain as this part). And so he made a statement.
Oh, and then there was a jail house snitch a couple of days later. Is that like hitting the cycle? I will say they did have probably cause to arrest the guy.
Matt & NMC:
With all due respect, there is a remedy: release. I know, I know, good luck. But it works. There is the occasional judge who makes the prosecution, you know, follow the law, and when they don’t, well, the judge does. It tends to work pretty fast, too, in my experience. The alternative, followed all too often, breeds general contempt and lawlessness, as you have no doubt experienced.