Of Counsel

Legal Notes on Georgia and The South

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.

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