Gideon Alert: The continued devolution of Georgia’s indigent defense system leads to case-by-case fixes with mixed results

BY David Carroll on Monday, July 12, 2010 at 5:04 PM

A consent decree issued by a northern Georgia Superior Court on July 8, 2010 in a class action lawsuit should be cause for celebration.  But in this instance, it really serves as a reminder of the continuing devolution of Gideon’s promise that is taking place in Georgia.  In the face of this dismantling of the right to counsel, advocates like the Southern Center for Human Rights (SCHR) are attempting to push reform on a myriad of fronts throughout the state simultaneously to try to halt the further erosion of the constitutional right to counsel.

The Georgia Indigent Defense Act of 2003 established an independent 11-member Georgia Public Defender Standards Council (GPDSC). GPDSC was given responsibility for: promulgating performance standards; appointing a director; providing training and support; overseeing the transition to a circuit-wide public defender office in each of the state’s 49 judicial circuits, replacing the 159 disparate county systems; establishing procedures for conflict representation; managing the office of the mental health advocacy; managing the office of the multicounty public defender, and subsequently the Office of the Georgia Capital Defender, for all death penalty cases; and assuring “that adequate and effective legal representation is provided” to indigent defendants throughout the state.  The year of 2004 was intended: to allow the Council to promulgate standards and policies and prepare a budget; for the circuit public defender selection panels to be appointed; and for a circuit public defender to be appointed in each circuit by January 1, 2005. The council was to oversee the transition to the circuit public defender system during 2005.  And, by 2006, the entire system was expected to be fully operational.

Almost since its inception the Legislature has rescinded on its promise of reform, relying for an excuse primarily on a single infamous case.  On March 11, 2005, in the Fulton County courthouse in Atlanta, Georgia, an inmate on trial for rape escaped from custody.  In the course of the escape, he killed the judge presiding over his trial, a court reporter, a Sheriff’s deputy, and later a federal agent. Twenty-six hours later, Brian Nichols was taken into custody. He was eventually indicted on 54 separate crimes. The State early on announced its intention to seek the death penalty, and pleadings in the case aver that the State declined offers from the defendant in February 2007 to plead guilty as charged to a life sentence.  Between January 2007 and the trial held in September to December 2008, the litigation regarding funding was heated and extensive.  At various times, the Court ordered the GPDSC to pay money to the defense for fees and experts, even threatening contempt.  The GPDSC several times announced they were simply out of money.  The legislature denied GPDSC’s requests for additional funds.  

By the time that Nichols was given multiple life sentences, much of the improvements planned under the Indigent Defense Act of 2003 had been dismantled.  In 2007, the GPDSC was moved from the judicial to the executive branch of government, with the GPDSC Director becoming a direct-gubernatorial appointee -- no longer appointed or dismissed based on majority vote of an independent board. And, at the exact time that fiscal demands on the indigent defense system were greatest, between 2005 and 2007, the state reneged on giving the GPDSC all of the funds set up for the program.

The failure of the state to adequately fund indigent defense has had wide ranging impact on the right to counsel throughout Georgia and has forced litigation throughout the state.  The case resulting in the recent consent decree was a class action lawsuit filed by SCHR. The Northern Judicial Circuit contains five counties: Elbert, Franklin, Hart, Madison, and Oglethorpe. Until June 30, 2008, conflict defense services were provided by three private attorneys working under a flat fee contract.   Due to budget constraints, GPDSC decided to cut the rate of pay for the flat fee contracts.  The conflict attorneys declined to renew their contracts to take conflict cases.  Without conflict attorneys, defendants languished in jail unrepresented for up to four months.  The SCHR lawsuit was in effect mooted when GPDSC finally found attorneys willing to work at the lower rates.  

So, the consent decree entered into by GPDSC is only a minor victory, applying only to conflict counsel in a five county jurisdiction. Still, it is worth noting that GPDSC is required to appoint attorneys within 24 hours and with the aim of counsel meeting his or her client within three business days.  GPDSC is prohibited from entering into a conflict agreement with any attorney in the jurisdiction for more than:
•         125 clients charged with felonies for an attorney with five or more years of experience;
•         75 clients charged with felonies for an attorney with less than five years of experience;
•         300 clients charged with misdemeanors for an attorney who only provides representation to indigent defendants charged with misdemeanors.

And, GPDSC must “assess whether the private caseload of an applicant, in conjunction with the proposed contract case volume, would interfere with the rendering of quality representation and/or lead to the breach of ethical obligations when determining whether or not to enter into a contract with said applicant.”  Finally, all GPDSC conflict contracts in the Northern Georgia region must require attorneys to adhere to the “Performance Standards for Representation” prepared by GPDSC, while obligating counsel “to decline any appointment that would interfere with the rendering of quality representation or lead to a breach of ethical obligations.”   Read SCHR press release on consent decree.

A commitment to justice for all is a cornerstone of the American social contract.  The strength of our republic rests on the belief – and the reality – that our trials are fair and accurate, and that the results are swift and final.  This must be the case not only for the victim and the accused in a particular crime, but for all of us for whom the courts are the bulwark of a safe, secure and fair society.  Repairing the damage done to Georgia’s nascent state indigent defense system and ensuring fairness in the criminal court system will be a Herculean task if it must be accomplished case-by-case and circuit-by-circuit.