Of Counsel

Legal Notes on Georgia and The South

The Future of Indigent Appeals

Posted by Maggie on March 3, 2008

The Daily Report has a follow-up today (subscription req’d) on last week’s Georgia Supreme Court ruling requiring GPDSC to provide outside counsel for appeals that assert ineffective assistance of counsel.

This throws a wrench in the works for the current budget crisis, as it’s possible that there could be a whole set of new appeals coming their way. While this worries me, I have to admit that I don’t feel too sympathetic on this particular issue. Whoever thought they could get away with a policy of having trial counsel claim their own ineffectiveness deserves whatever repercussions come their way.

The article discusses particularly the overlap between Garland and the new legislation about conflict counsel. HB 1245 has a neighboring PD office take over conflicts when feasible, with contract counsel as backup. Passing off cases to a PD’s office I can see as frustrating, but passing them appeals is worse. Most PD’s offices in Georgia aren’t equipped with any kind of appellate division and the ability to appeal your cases is pretty limited to your own time and resources. And I’ve long thought that our switch away from salaried conflict offices is a big problem.

GPDSC actually comments in this article. We hear from Council member Don Oliver and director Mack Crawford. The enlightening information came from Operations Director Nolan Martin. Martin was the one organizing the Conflict offices where salaried attorneys would handle conflicts in neighboring circuits when they arose. Especially with the new appeal issue, they could definitely fill a niche if we kept them around. But with budget cuts, they were the first to go. It sounds like Martin wants to bring them back.

Martin, who has worked for more than a year to put together a regional system of conflict offices to handle such cases where the local caseload warrants one, worried that shifting emphasis to a “one-size-fits-all” contract system for private attorneys will be more expensive than providing salaried, dedicated conflict attorneys.

Martin provided figures showing a more than 50 percent reduction in conflict cases assigned to private attorneys from 2006 to 2007 and said that the council’s efforts to winnow out and assign such cases in house whenever possible had cut the costs of such cases from $11 million to $9 million.

But, he warned, the Legislature’s proposal could hike that figure up to $12 million or $14 million.

Another issue GPDSC seems concerned about is the new spending outlines for capital cases that gives GPDSC the burden until a certain point. Then counties will have to share in the cost. Dan Oliver worries this will hurt Circuit PD’s and their ability to get funding from counties. I think if that happens, everyone is missing the point. I’m actually okay with the county-supporting-capital-cases idea. Why? Because the decision to impose capital punishment is very dependent on the county doing the prosecution. The DA needs to be accountable to the taxpayers and make decisions about seeking the death penalty with the understanding that it’s a situation where taxpayers would support the potential extra cost. I see this as a situation where the prosecution should be coming under scrutiny rather than the PD. Nichols is a perfect example of how defense spending is a result of and a response to prosecution strategy.

The article ends with Crawford saying he’s confident funding will come through the legislature. I am, too. But I expect the struggle to continue into 2009 and potentially for years to come unless everyone involved gets their act together. (I’m talking to you, Senate.)

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