Gideon Alert: Georgia's right to counsel in the shadow of the death penalty

BY David Carroll on Friday, March 26, 2010 at 12:33 PM

A divided (4-3) Georgia Supreme Court handed down a decision yesterday to allow a death penalty case to proceed, despite serious concerns about resources to provide the defendant a constitutionally-adequate defense, as reported in the New York Times

The facts surrounding the defendant's right to counsel are stunning.  Since its inception, the Georgia Public Defender Standards Council has been seriously underfunded.  In the present case, the defendant was appointed two private attorneys.  Denied funding to conduct sufficient investigation, the attorneys made a number of motions seeking appropriate funding.   Then, due to a lack of funding, the Standards Council stopped paying the attorneys altogether.  Defense counsel filed another motion seeking funding for their time, investigatory, and expert needs.  At a hearing on the motion, the Standards Council director testified that there was no money and could not say when funding would be forthcoming.

At that point, the prosecution moved for the court to replace the attorneys in the case with lawyers from the local public defender's office, under the theory that these were salaried positions that would not need additional money.  The court approved the plan, removed the defendant's original attorneys, and appointed public defender office attorneys.  The defendant's new lawyers promptly filed a motion pointing out that they were unqualified to handle a death penalty case, lacked the time to conduct necessary investigation, and were unable to obtain funds for experts and mitigation specialists.  As this battle over funding was being waged, the defendant went unrepresented.

Fifteen months later, the defendant's original lawyers were reinstated, but they were still not compensated or given the tools to mount an adequate defense.  But the court and prosecution were satisfied, and the trial was slated to commence.  The defendant -- still without paid counsel or the funds to hire an investigator for his defense -- moved to dismiss the indictment, alleging the trial court denied his right to counsel and to a speedy trial.  He followed with a motion for discharge and acquittal.

The majority of the Court blamed the defendant, in part, for the delay because he could have simply accepted the representation of the unqualified public defenders.  And, they reason that any ineffective assistance of counsel can be handled on the backside through Strickland.  The minority argues forcefully:  "The bottom line here is that the State should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay."  The full opinion is available here.

"[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.  This seems to us to be an obvious truth.  Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.  . . .  That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries."  Gideon v. Wainwright (1963)