News and Tribune

January 30, 2014

Man sits 2 weeks in jail before hearing

State statute requires an initial hearing happen within 72 hours


JEFFERSONVILLE — A New Albany man sat in jail for two weeks before ever being brought before a judge to hear allegations that he violated terms of Clark County’s Drug Court Program.

Nathan Clifford, 40, was booked into the Clark County jail Jan. 16, and his due process rights were violated by not going before a judge until Thursday, says Jeffersonville attorney Nathan Masingo.

Masingo gave Clifford, who was released from jail Thursday, pro bono representation during the hearing in Clark County Circuit Court No. 2 with presiding judge Clark County Magistrate William Dawkins.

State statue requires that someone incarcerated be brought before a judge for an initial hearing within 72 hours of incarceration, excluding Saturdays, Sundays and legal holidays. According to court records, Clifford was scheduled to appear for his initial hearing Feb. 13 — only days short of one month of incarceration.

“They have 72 hours, but they continued to hold him without a bond or bringing him before the court to let him know why he was here,” Masingo said. “It is the court’s duty to bring him up and notify him of his rights as well as the reason for his incarceration. They did not do that.”

Masingo said it was Clark County Circuit Court No. 2 personnel who sets the court calendar, and he said he doesn’t know why Clifford’s initial hearing was scheduled a month after his initial incarceration.

“I can’t explain it,” he said. “My office contacted the court this morning and demanded he [Clifford] be brought up today so we could, at least, establish a bond for him, if nothing else.”

Masingo said he only became aware of Clifford’s incarceration after he received a concerned phone call from Clifford’s father of his son’s extended jail stint.

“Once I reviewed his case, I found out that he was still sitting in jail, and had been, beyond the time allowed for the court to bring him up, and he sat there without a bond,” Masingo said.

Controversy has grown around Circuit Court No. 2 and its judge, Jerry Jacobi, after two former participants of the drug court program, which Jacobi oversees, were released from the Clark County jail last week after being held for months longer than their scheduled sentences. The two were released after the Clark County Prosecutor’s office discovered the error.

Others, with Clifford being the latest, have come forward and are considering civil complaints against the court.

Clifford’s 2013 three-month sentence

Masingo said Clifford’s due process rights have been violated at the hands of Clark County Circuit Court No. 2 not once, but twice.

“ ... last year, he [Clifford] was held for three months without a bond pending his placement in a halfway house,” he said.

Clifford was placed in the Clark County jail in March, not on a sanction for a drug court violation, but on a hold pending an opening in a halfway house. Clifford did have multiple earlier sanctions in his time in drug court, which he entered in mid-2012, according to online court records.

Clifford sat in jail for nearly three months until early June. During that time, he was never taken before a judge, given a bond or provided legal counsel, Masingo said.

“You can’t hold someone for three months without setting a bond on him and providing an attorney,” Masingo said. “It is one thing to have those minor sanctions put in, but to detain someone for a three-month period is a different matter.”

Online court records show no hearings for Clifford between March 14 and early June.

“He [Clifford] was never brought up to court until he was transported to a halfway house on June 4,” he said.

While Masingo says Clifford’s rights were violated, he acknowledged placement at a halfway house can take a lengthy amount of time.

“These facilities are pretty crowded; however, it is excessive to hold him [Clifford] in jail for that period of time,” he said. “They had other options. They could have put him in day reporting. They could have put him on the home incarceration program.

While Masingo is no longer Clifford’s counsel, he said Clifford may have grounds to retain another attorney for a civil suit against Clark County.

“I believe he has a civil action just like the other people who were detained too long,” Masingo said of both of Clifford’s incarcerations.

According to court records, Clifford was released to the halfway house and ordered to report daily to a case manager. He failed to do so July 10 and 11. He was ordered held on a 48-hour bond on Aug. 1.

A petition was filed Sept. 3 to terminate Clifford from Drug Court and he was picked up on a warrant Jan. 16.

His initial charges from August 2011 were possession of a schedule I, II, III or IV controlled substance and unlawful possession of a syringe, both class D felonies; and public intoxication, a misdemeanor.

Jacobi has not commented on matters pertaining to drug court. A court clerk said he would not comment because of an ongoing investigation.