Tuesday, August 4, 2009

Opinion: The Losing Battle Over Indigent Defendant Rights in Georgia

In 1963, the US Supreme Court held in the landmark case Gideon v Wainwright that the Sixth Amendment of the US Constitution requires state courts to provide attorneys to any criminal defendant who is unable to afford one. In the past 46 years, however, many states have been unable -- sometimes even unwilling -- to meet this important obligation.

Right now Georgia is facing a crisis in the funding of its public defender program. The state has been unable to pay attorneys representing indigent clients, simply because the funds are not there. Many are quick to point their fingers at the Georgia Public Defender Standards Council, which is in charge of allocating the money set aside by the state for appointed lawyers. Some argue the Council has made unwise funding decisions and poured too much money into too few cases.

Proponents of this view point to the Brian Nichols case. In 2008, Nichols was sentenced to a life sentence without the possibility of parole for murdering four people and brutally beating a guard at the Fulton County Courthouse where he was on trial for rape. The capital murder case quickly ate up more than $1.5 million of the annual $4.5 million dollar budget for indigent defense. It was later revealed that the judge appointed to the case, Senior Judge Hilton Fuller, signed a secret order in 2007 that earmarked for the Nichols case the remainder of the state's budget for defending death penalty cases -- leaving the fund penniless for other defendants facing death penalty charges for the remainder of the 2007-2008 fiscal year.

Others point to the overzealous state prosecutor in charge of bringing the case against Nichols for running up the costs of his defense. The case was supposed to be a "slam-dunk" case, complete with a taped confession to the murders by Nichols. But the Fulton County District Attorney assigned to the case, Paul Howard, brought more than 50 charges against the defendant and had 400+ witnesses, all of which dramatically increased the costs of the appointed defense team representing Nichols.

One thing is certain: the state has not allocated enough money to provide indigent people charged with crimes the legal representation that they not only deserve, but are entitled to under the US Constitution. As a fundamental right under the constitution, the right to council must be held above the vagaries of partisan politics and held to a higher standard than other funding decisions such as deciding to spend more or less on road repair.

To date, the battle for acquiring the necessary funding has not been successful. In 2008, the Governor proposed an additional $3.6 million for indigent defense. The state senate, however, eventually only approved a little over $500,000. In fact, the amount of money allocated for indigent defense in Georgia has steadily decreased over the last four years. In 2005, the state allocated $9 million for the fund. By 2007, this amount had been reduced to $4.5 million.

And these numbers are expected to decline further as the tough economic conditions force the state to choose where cuts must be made. Unfortunately, one of the areas where some legislators have been more than willing to make these concessions is the indigent defense fund. One state senator in particular, Sen. Preston Smith (R-Rome), has been a vocal advocate against indigent defense and has worked hard to ensure additional state money is not allocated to this important cause.

The problems facing Georgia are not unique. States throughout the country are having difficulty providing sufficient funding for public defenders. As a result, public defenders are being forced to take more cases than they can handle at one time, meaning defendants may wait weeks before meeting with their attorneys, if they meet with them at all. According to the Southern Center for Human Rights some criminal defendants in Georgia have waited as long as 6 months before having an attorney assigned to their case. Currently, there are on-going lawsuits in several states where the lawyers are claiming the state is violating indigent defendants' rights to an attorney.

Additionally, public defenders are asking the courts to be removed from cases because they are not being paid and cannot afford to adequately prepare a defense for their clients for free. Private attorneys who once would agree to take indigent clients are now refusing to do so because they know the state has no way to pay them.

As legislators fight over money, the constitutional rights of those who cannot afford their own legal representation are completely forgotten in the struggle.

These rights are not dependent on whether the defendant is wealthy or poor, has the most expensive defense attorney in town or a state appointed public defender. Georgia has a constitutional obligation, moreover a moral obligation, to ensure that every single criminal defendant who is unable to afford an attorney will have one provided to them.

Garland, Samuel & Loeb, P.C.

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