Of Counsel

Legal Notes on Georgia and The South

A Very Strange Habeas

Posted by Maggie on March 4, 2008

Last Monday, the Georgia Supreme Court granted habeas relief to a defendant convicted of possession of cocaine with intent to distribute on the grounds of a conflict of interest. It’s a totally separate issue from the GPDSC conflict appeal case that came out the same day. This one is from 2001, predating GPDSC, and the conflict is unusual.

The opinion finds that the trial and appellate attorney had a conflict of interest because they were instructed not to challenge the makeup of the jury pool. This was just after the 2000 census, which showed a substantial change in racial makeup in the county. Allegedly, the PD’s office and the Judges had some kind of deal in place where the PD’s would let it slide while the court got up to date.

DeKalb Superior Court Judges then on the bench insist this is false. The Daily Report notes that the Chief Deputy Defender at the time met with Judges about the census data but insists no deal was in place. (Hope that link works…)

The opinion treats the deal as a foregone conclusion, which I find slightly presumptuous. The Daily Report also has the transcript from the habeas hearing. The relevant stuff starts around page 17. It’s worth noting that trial counsel did file a motion challenging the jury pool, and had just filed the same motion in other cases with the same judge. The Judge already denied the motion in one of the other cases, but counsel was allowed to submit it for Edwards to preserve the record. So it’s questionable whether a hearing would have been allowed at all. It’s also strange that while trial counsel insists he was ordered by his superiors and a deal was in place, he gives no specifics as to who gave these orders and where he heard about the deal. Around page 30, counsel gets more specific about the Judges, but still doesn’t say whether he knows this first hand or just heard it. (It seems to me opposing counsel should have objected.) Appellate counsel (at page 37) says she doesn’t know who made the deal and that she heard through superiors. However, appellate counsel does create a potentially larger conflict of interest. She spoke with Edwards about raising ineffective assistance as an issue and he declined. However, she isn’t sure whether she told him about the jury pool issue. That seems to be a stronger problem than whether or not any such deal existed. Appellate counsel was also a pretty newly admitted attorney, with only a couple of appeals under her belt. She gets specific again at page 53 saying trial counsel was the one who told her about the “deal.”

To me, the conflict issue is a murky one, but I think it’s best to err on the side of caution so I’m glad the appeal was granted. Trial counsel preserved the issue. But appellate counsel doesn’t reference knowing about this “deal” personally and only cites trial counsel as a source. There we seem to have a more significant problem. However, the Supreme Court’s assertion that a deal actually existed, seems to give the testimony from the habeas hearing more weight than it deserves. The references to the deal are vague and unsupported. No Judges were called, nor were any supervisors from the Public Defender’s Office. Overall, it seems like the habeas hearing was sloppy. Still, at the very least there’s appellate ineffective assistance even if it’s not a conflict. An issue should have been raised on appeal and was not. End of story.

But I’ll give it to the Supreme Court. Why? Because even though it’s a sketchy basis for the opinion, the standard in a conflict case is lower than that in a straight ineffective assistance case. So habeas is granted instead of denied. And it’s rare enough to see a court in Georgia err on the side of the defendant.

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