Of Counsel

Legal Notes on Georgia and The South

Archive for February, 2008

Nichols Civil Suit

Posted by Maggie on February 29, 2008

Nichols hasn’t been the only one in hot water since the shootings in 2005. Several victims have sued the Fulton County Sheriff. There are a lot of potential reasons for liability. Nichols, a large young male, was monitored only by a female deputy, while preparing for court. His initial escape was due almost completely to his ability to overpower the single deputy. Then there’s the additional problem: two people were killed in a courtroom where court was actively in session. No deputy was present, even though it’s a state law requirement.

There was a hearing yesterday and it sounds like quite the circus. Six plaintiffs, nine defendants, and “more than two dozen attorneys.” The big issue was what kind of actions the Sheriff was using at the time. If their acts were discretionary, they’re shielded from liability, but not if they were ministerial.

To me, it seems pretty cut and dry despite defense’s arguments. If state law requires particular action, it’s tough classifying that as anything other than ministerial duty. They’ve tried to claim that any variations from required action are discretionary, but I agree with one plaintiff’s attorney who said that would make any action discretionary. They also state that their policies are discretionary (it says so right there in the handbook!) but again, I don’t think it’s an issue of nomenclature.

Looks like the Sheriff is going to end up shouldering the blame, though the Judge hasn’t ruled yet. And I think it’s proper. Courtroom security has certainly improved since Nichols, it’s helped to step up all over the country by giving that reality check. But it’s also pretty apparent that proper action by the Sheriff could have affected, if not completely averted, the outcome of this terrible crime.

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Today’s Nichols Update

Posted by Maggie on February 28, 2008

Brian Nichols appeared in court today for the first time since October or so. It was Judge Bodiford’s first hearing on the case. He’s already set another one for Tuesday. Looks like he means it when he says he wants to get this case moving. Props.

He also says he’s going to reconsider Defense’s Motion to move the trial. I think that’s extremely smart. Fuller was holding out since they hadn’t found any other locations yet. The actual room the trial would take place in would be virtually identical to where the crime took place. It’d be in the same building. Jurors would be walking down the same halls. I can’t see how this wouldn’t be prejudicial and potentially a huge appealable issue.

No other specifics on the hearing, though I’ll keep tabs on stories that go up as the day continues. The only other note is that Gwinnett County has finally indicted Nichols–just before the statute of limitations–on charges including kidnapping and agg assault against Ashley Smith. Gwinnett County is where Nichols had his final standoff with authorities and eventually turned himself in. Gwinnett says they don’t intend to try him on these, but wanted to make sure they indicted in case there’s some reason to go forward in the future.

Posted in AJC, Nichols | Leave a Comment »

Nichols Coverage

Posted by Maggie on February 27, 2008

It’s not exactly an update because nothing new has happened, but there is some coverage of Nichols today. (Thanks to StandDown Texas for catching this one. Creative Loafing isn’t on my normal list of sources.)

Creative Loafing, our local alternative paper, has a story on the Nichols case. It’s not surprising that their coverage is pretty critical of the State’s lack of adequate funding for indigent defense in general. (They quote Stephen Bright. But also add opinions from J. Tom Morgan, a former DeKalb prosecutor, and Charles Clay, one of the legislators who brought the indigent defense legislation through in 2003. All think that everyone needs to lay off and pay up.)

What I saw here that hasn’t received any attention that I’ve seen is this:

Senior Judge Hilton Fuller – who presided over the Nichols case until he resigned in late January – signed a secret court order in 2007 that earmarks all remaining state funding for death-penalty cases to the Nichols defense team.

Mack Crawford, executive director of the Georgia Public Defender Standards Council, which administers the death-penalty funds, let the cat out of the bag about that secret order when he testified in a court hearing in November that no money would be available for other trials until the end of June.

“There is a sealed order that I cannot discuss,” Crawford testified, according to a transcript. “If Judge Fuller’s order stands, all of the money I have available for the balance of this fiscal year would technically be embargoed or committed to that one case.”

Crawford declined to comment to CL, and Fuller’s order is so little-known that even Wilson Dubose, a Madison lawyer who chairs the council, expressed surprise when told of Crawford’s testimony.

Still, Bright points out that Fuller isn’t the only Judge who’s made this kind of order. Several other judges have demanded funds from the council to no avail. So my guess is GPDSC will do with the funds whatever it wants to, just like it always does.

And again, no surprise, Mack Crawford has no comment. Shocking.

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Sherri Jefferson’s Contempt Overturned

Posted by Maggie on February 26, 2008

If you check out the blawgs, you’ve probably already heard that Sherri Jefferson’s contempt was overturned yesterday by the Georgia Supreme Court. The opinion is here. If you were a Georgia PD at the time this happened, it was virtually impossible not to hear about it. It was a pretty rough time for all of us, since I think any PD with a spine would have done just what she did. Worse, many felt GPDSC abandoned Ms. Jefferson. Her letter of resignation hasn’t surfaced, but Defending the Public had the 33 pages of attachments and exhibits that show just what a tyrant she was dealing with. (And that thankfully she had a great Circuit Defender who was willing to back her up. Among the statements it seems the Judge made to her boss was that it was not appropriate for counsel of a juvenile to “console” their client.)

Thankfully something good has come out of all this. The Court has decided it’s time to rewrite the approach on contempt and lay it out in excessive detail. They also advise any court considering a contempt issue when counsel is representing a client to err on the side of zealous advocacy. Juvenile courts in particular can become a dictatorship rather than a court of law and justice. Believe me, I’ve seen it with my own eyes, and I’m just grateful that it never occurred to any Judge I practiced before to find me in contempt.

If you don’t recall, the statements that Jefferson was found in contempt for were:

“[T]hat’s a gross interference with the way that I can represent my client, your Honor”


“I just want the record to reflect with much respect, Your Honor, . . . I just find the Court is biased in its view. You say that you’re not prejudging the case but it seems to me like you’ve made up your mind and any and everything I do to effectively defend my client I’m being rebutted.”

The case has been remanded for reconsideration, though it’s pretty clear that the Supreme Court thinks there’s nothing even resembling contempt here.

Posted in Court Update, General, Public Defenders | 1 Comment »

Constitution Trumps Policy

Posted by Maggie on February 26, 2008

Yesterday, the Georgia Supreme Court decided Garland v. State. Garland was tried for Armed Robbery and convicted, he was represented by appointed counsel provided by Georgia Public Defenders Standards Council (GPDSC). On appeal, Garland wanted to assert a claim of ineffective assistance against his attorney. The Judge refused, citing GPDSC policy that didn’t allow for the appointment of a new attorney for an appeal.

Yes, you read that correctly. GPDSC wanted the trial attorney to argue that he, himself, was ineffective. This seems like a Catch-22. Because if you really effectively argue that you were ineffective, how bad could you have been really if your argument on appeal comes across convincingly? And if you don’t argue well (because you aren’t in fact effective) who are you going to convince?

The Georgia Supreme Court ruled that an indigent defendant who wishes to claim ineffective assistance of counsel on appeal has the right to be granted a new attorney regardless of GPDSC policy. The Constitution, they wrote, is what governs this issue, not any agency policy, so GPDSC must make sure the defendant is represented by another attorney.

I wasn’t aware of this policy. I didn’t have any trials where ineffective assistance was at issue on appeal. And the one time I do recall it being an issue in my circuit, there was a separate attorney appointed. So I’m not sure how much of the policy was actually in use around the state. The Garland opinion doesn’t give dates, so I can’t tell if the refusal to appoint appellate counsel was made recently with the budget crisis, or precedes all of this.

But props to the Georgia Supreme Court for reminding everyone that the Constitution comes first. And who at GPDSC really honestly thought they were going to get away with this?

Just as a side legal note, the State here tried to argue that the defendant should make a preliminary showing of ineffectiveness before being granted a new attorney. The Supreme Court didn’t buy it and neither do I. Ineffectiveness may have a lot to do with issues that are covered by the attorney-client privilege, and only another attorney who also has that privilege is best prepared to address those issues. The Judge and Prosecutor shouldn’t be privy to such communications unless counsel thinks it best. Especially since so many ineffectiveness claims address whether the attorney followed up on information given by the defendant.

Posted in Court Update, General, Public Defenders | Leave a Comment »

MS Legislature Considers Cutting Time

Posted by Maggie on February 25, 2008

In Mississippi, the legislature is considering a bill that could cut back on time served for nonviolent offenders.

House Bill 729 would provide an opportunity for early parole for offenders whose crimes did not include an attempt to cause bodily harm. They would have to serve 25 percent of their sentences before the state Parole Board could consider their requests. Currently, they must serve 85 percent.

About 9,000 prisoners would be affected by the legislation, House Corrections Committee Chairman Bennett Malone said. The bill would alleviate prison crowding and save taxpayers millions of dollars, he added.

“Right now, we’ve got young people in prison for smoking marijuana,” Malone, D-Carthage, said. “I know people who have been locked up who are not criminals. We can do something different to punish them for crimes that are nonviolent.”

Alternatives could include expanding house arrest or mandating that offenders serve one year of their sentences along with probation, he said.

Posted in General, The South | Leave a Comment »

Big News for Small Violations in AL

Posted by Maggie on February 25, 2008

The Birmingham News reports today on the settlement of a federal lawsuit against the City of Birmingham’s Municipal Court. The Court was charging high fines for minor traffic violations and misdemeanors and jailing any defendant who couldn’t pay. It basically meant a walk for the well-off and jail for the poor.

The conditions of the settlement require the City to keep a defense attorney available to any indigent persons in Municipal Court. All defendants will be advised of their rights. And before any fine is converted to jail time, the Court must consider the defendant’s ability to pay.

As a PD I saw a lot of frustration and injustice with severe cases. In private practice I’ve been to a number of small local courts for traffic violations for long-time clients. What I’ve seen in these courts is often just as frustrating, especially since the people charged don’t realize that they’ve got more to deal with than they expected. I once saw a huge man completely break down in sobs when he was told he’d be going to jail. No judge, no prosecutor, no defense attorney, just a government staffer telling the man he had to pay or serve time. It’s a good step forward for Birmingham, and I hope other cities follow.

Posted in General, Public Defenders, The South | Leave a Comment »

Today’s Nichols Update

Posted by Maggie on February 21, 2008

As I’ve mentioned recently, the Nichols updates these days aren’t coming from the court itself, where things are rather quiet. (I’m assuming lots is going on behind the scenes.) But the legislature is moving fast and furious to make sure Nichols never happens again. (Ignoring the fact that statistically speaking, it’s pretty unlikely we’ll have a set of circumstances this insane again ever.)

The Daily Report covers the story and has links to all the House Bills.

First, HB 1251 addresses payment limits for appointed counsel in death penalty cases. It sets up a payment split between GPDSC and the county, with GPDSC bearing most of the initial burden, and splitting the costs at a set amount after spending reaches certain amounts. The bill makes sense, though it’s only ever going to apply to a handful of cases, and should prevent any litigation between the State and County agencies about funding.

Under HB 1252, Senior Judges (such as Judge Fuller) will not be able to preside over capital cases. Senior Judges generally only sit in when needed and do so at an hourly rate of pay, which can make the expenses of trial for a county much higher. Again, makes sense and should prevent money squabbling. But again, only going to apply to a handful of cases. (Most counties would avoid appointing a senior judge in such a case anyway.)

And finally, HB 1253, which requires GPDSC to do the appointing of conflict counsel. The only point in this one I can see is that it keeps the Judge from doing the appointing. (Although it’s strange to see the House trusting GPDSC with appointments and costs when the Senate seems to find them completely untrustworthy on anything.)

While I think most of the State has learned from the problems of Nichols, I can’t really complain about the legislation. None of it is a direct attack, it’s more about prevention. It’s about assigning costs which haven’t ever really been specifically addressed. (Thus the litigation between Fulton County and the State about payments in Nichols.) It’s definitely a more even-tempered approach than the Senate’s approach to GPDSC.

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Senate Smashes GPDSC Funding

Posted by Maggie on February 20, 2008

Yesterday the Georgia Senate approved only $513,125 in emergency funds for the Public Defender Standards Council. Governor Perdue recommended $3.6 million and the House voted in favor of that amount. Now the House and Senate will have to figure out a compromise.

The Senate says they think GPDSC has access to more money than they claim and that their assertion that employees will have to be furloughed is an exaggeration. It seems that they’re working at least partially in response to Senator Preston Smith’s oversight committee report. (Sorry I’m weeks late with the link.) They make a valid point: GPDSC has claimed it will have to furlough employees without additional funds for the last two years but no one was ever put on furlough. But I don’t know that it’s a reason to cut back so much.

The report brings up Nichols, which I find unjustified. (It’s no longer possible to have the budgetary problems from Nichols thanks to legislative changes I’ll address in a separate post.) The bigger issue is what’s at stake here. I did find curious one section that said that GPDSC has a big division, with many members taking the more “extreme” views taken by previous directors. It’s not clear what these viewpoints are. Are they financial? Or are they simply passionate about public defense? It’s not like any of this is ever expressed publicly, so it’s unclear what this is based on. (It’s hard to tell, the report is just as critical of “ardent defense advocates” as it is of the Council’s financial issues, which is a severe fundamental flaw.) Another valid point is that the Council is often not transparent in its dealings. Lord knows I’ve said so. The rest of the report is very numbers-driven. A lot of it is about the little details, which money comes from where.

The real issue should be the overall numbers. The report points out that in 2000 the amount spent on indigent defense was approximately $54 million, whereas in 2007 it was about $107 million. Nearly doubled!– they cry. However, they ignore that the cost was rising steadily and severely before the new system went into place. I have managed to get my hands on a letter from a Circuit Public Defender, Sam Merritt (Southwestern Circuit), complaining about this very issue. He notes that the increase between 2000 and 2001 was 13%. The increase between 2001 and 2002 was nearly 17%, and he uses the same numbers cited in the Oversight Committee’s Report. However, since the new system has gone into place, the numbers have stayed shockingly stable. In fact, they decreased about 2% in 2007. So instead of a ballooning system, we have one that’s actually keeping its costs in check. (Especially since the State hates giving it any extra money.)

I’m glad that some of the legislature gets it. Senator Smith doesn’t. In the report’s conclusion, it states:

[T]he new system removes financial considerations from the equation since the state and counties are now obligated to pick up the entire tab, rather than the attorneys. Consequently, these criminal defense attorneys are ethically obligated to zealously advocate on behalf of their clients without any real consideration of limitations related to the cost of that representation. Without any such financial consideration, one can expect that the costs will continue to rise extraordinarily as the expense of the experts and other defense costs increase on the state’s tab.

I’m sorry, but does the Committee have any experience talking to actual PD’s about this? Do they understand that you can’t just decide you want an expert and pay for one like it’s no big deal? Experts are virtually unheard of outside of death penalty cases and the most severe crimes. I wanted one once and couldn’t even move forward without jumping through a huge number of hoops. It ignores the fact that the expenses are not made without consideration. Do they think PD’s operate in a universe where money doesn’t matter? Believe me, they know full well the cost of experts. They’re working with inadequate resources in many situations, though Senator Smith would like us to believe that they’re out there using State credit cards to buy time from fancy experts. They are doing what they need to to get by and sometimes it’s rough to even do that.

The report also uses the phrase “free lawyers,” which is one that I think shows even more of their bias. It doesn’t matter if some members of GPDSC think an “adequate defense” is the “best defense.” Because 99.9% of the people GPDSC defends aren’t getting that best defense because the money just isn’t there. The report is certainly an attack on GPDSC, and they need to be attacked for a lot of things. But it also ignores the practicalities of the PD’s offices all over the state, treating them like they’re cavalier about the State’s finances. (Do they know how much PD’s make? I think they understand the monetary limitations involved in their jobs.)

I will point out one more thing about the Report. It points out at the end other states’ approaches to indigent defense. I think this is something that should be considered. But I also think this attention is overblown. Steps are being taken to put caps on the payment of private counsel. It completely ignores the Conflict Defender’s Offices that GPDSC had in place which likely saved everyone a lot of money by having salaried defenders available specifically to take these cases. And GPDSC may not have furloughed its employees, but it fired its Conflict Defenders and that is something that really should be examined when it comes to the numbers.

Posted in AJC, General, Public Defenders | 2 Comments »


Posted by Maggie on February 20, 2008

I promise I’ll be posting on the big news of the day (the senate’s decision to give GPDSC virtually no money) as well as some other moderate news in due time.  I want to give a lot of time to the budget post since I have a lot of info to work in and I’m having a busy day thus far.  Hopefully I’ll be on it by this evening.

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