Of Counsel

Legal Notes on Georgia and The South

Archive for the ‘Public Defenders’ Category

Judge Who Booted Defense Attorneys Asked to Recuse

Posted by Maggie on March 19, 2008

One of the cases often referenced when talking about the difficulties with capital cases in Georgia these days is that of Jamie Weis, charged with murder in Pike County.  A quick recap: defense attorneys in the case asked for a delay in the case while they weren’t being paid.  The Judge decided he wanted to move the case forward, kicked off defense counsel, and replaced them with local PD’s.  This isn’t something he seems to have the right to do under Georgia jurisprudence.  Nor is the local PD’s office equipped to handle death penalty cases since the establishment of the Capital Defender’s Office.  Oh, and he didn’t consult anyone about this decision, not past or current counsel.

It wasn’t likely anyone was just going to let this lie.  Now a motion has been filed for Judge Caldwell to recuse himself.  Prominent defense attorneys Stephen Bright, Ed Garland, and Donald Samuel have filed the motion.  They are not defense counsel, but are asking to be involved specifically to address this issue.  Among the noteworthy dirt they’ve dug up is what looks like ex parte proceedings.  Judge Caldwell claimed to have spontaneously made the decision to remove the attorneys from the case.  However, it seems that Caldwell was talking to Mack Crawford, head of the Georgia Public Defenders, for months before the change was made without involving any defense counsel or the defendant.  As you may imagine, Caldwell isn’t thrilled about all this.  Allegedly, he’s instructed his secretary not to tell Bright and company about scheduled hearings.  This is just the latest move.  Previous ones have thus far been unsuccessful.  We’ll see if this does anything. 

Posted in General, Public Defenders | Leave a Comment »

More on GA Indigent Defense Legislation

Posted by Maggie on March 14, 2008

The AJC reports today that HB 1245 has cleared the House Judiciary Committee. The main concern with the current version of HB 1245 is that it may strongly affect when a defendant gets to meet with counsel. GPDSC’s standards call for a visit within 72 hours of incarceration. This happens in 95% of cases, based on 2007 GPDSC data. HB 1245 changes this rule to five business days. And only upon request to see an attorney.

I don’t really understand the point of this bill. Is it supposed to save money? Or keep those who aren’t indigent from access to indigent defense? Because for most defendants, the cost to take on their case really is minimal. They’re still one among hundreds. And if it’s about money then this is completely the wrong approach. David Dunn, the Circuit Defender for Lookout Mountain:

Allowing defendants quick access to an attorney is more cost efficient, Dunn said. With the help of a lawyer, a defendant charged with a non-violent or petty offense can get a bond, reducing jail costs. The longer a person who has a job stays in jail, the more likely that person will lose the job and become indigent, he said.

“If we do this …, it’s not going to be a cost savings; it’s going to be a cost increase,” Dunn said.

I’m willing to bet that the cost of keeping someone in jail for 5 days is significantly more than their the cost of their entire defense (assuming there are no multiple-day trials involved). To me, this looks like the legislature taking advantage of the multitude of GPDSC’s problems and finding yet another way to make it more difficult.

But I also hope that it won’t have much of a practical effect. PD’s are PD’s for a reason, and they will most likely still do their best to meet with clients as soon as possible after incarceration.

Posted in AJC, Public Defenders | Leave a Comment »

Today’s Nichols Update

Posted by Maggie on March 12, 2008

Another article in Creative Loafing, the alternative weekly newspaper, on Brian Nichols. A definite must-read. The story outlines clearly the history of indigent defense in Georgia, why a new system was needed, how the new system works, and then outlines just how we got where we are. Of particular note is the often ignored issue of legislative funding. Here’s a taste with quotes from former GPDSC Director Michael Mears and Emmet Bondurant, GPDSC’s first Council Chairman.

During the 2005 session, the General Assembly routinely approved a $42 million budget for the public defender system for the 2006 fiscal year. Then, in the 2006 session, it took back $5 million from the original allocation.

Mears says legislative leaders told him not to count on receiving all the money generated from the new court fees that were put in place to fund the public defender system. “I was in total shock,” Mears says. “It was like the system was being dismantled almost as soon as it was put together.”

While the amount collected from court fees intended to fund the indigent-defense system has risen every year, the amount allocated to the public defender system has dropped, and lawmakers have dipped into those funds for other purposes.

“The whole idea and the justification for the fees was sold to the public, the Legislature and the bar as a way to finance the state’s contribution,” Bondurant says. “The whole premise was that it was there for indigent defense. It’s dishonest and disingenuous to bait and switch.”

It also looks at the current situation of GPDSC as a legislative target. They attack GPDSC in part because on the ground they’re doing a good job and have effectively killed the death penalty in Georgia since the Capital Defenders took over.

Lots of quotes from friend-to-the-defense Stephen Bright and former State Republican Senator Charles Clay, who introduced GPDSC’s founding legislation. I know I am often quite hard on GPDSC, but it’s because when you read things like this you realize just what potential they have. While in many ways they are a lame duck agency, unable to set their own funding or force the legislature in any way, I stand by my repeated requests that they act as more of a driving voice for indigent defense and defenders.

Posted in General, Nichols, Public Defenders | Leave a Comment »

Today’s Nichols Update

Posted by Maggie on March 7, 2008

So yesterday was the hearing where we were supposed to find out what’s going to happen to defense counsel. It looks like Judge Bodiford got his way and GPDSC and the defense team have worked out a deal.

The Capital Defenders are allowed to reenter the case. Specifically, Josh Moore, who was previously assigned to Nichols before the conflict, has been added to the team. It also appears that Capital Defenders will be providing administrative support to help reduce outside expenses.

Two other members of the team have accepted changes to their appointments. Attorney Robert McGlasson will change from an hourly fee to a salary similar to the Capital Defenders. And attorney Jacob Sussman, that GPDSC was trying to oust, will be relegated solely to part-time work and will not be present for court proceedings. It looks like everyone’s on board. And it looks like this will lower the expected trial expenses such that they can set a date.

One particular issue of note. Judge Bodiford did not order GPDSC to pay the Nichols team their owed fees right away. Here’s a quote from the order:

The Court is aware that a very significant arrearage exists with respect to past due attorneys’ fees and expenses for the attorneys of Ferguson Stein Chambers and Mr. McGlasson appointed in this case, and the Council has acknowledged that fact. Likewise, the Court is aware that substantial past due amounts are owed to other private lawyers across the State of Georgia who are provided representation indigent defendants, growing out of the current funding crisis besetting the Council. The Court concludes that it is inappropriate to order the Council to pay the past due amounts to attorneys in preference to the past due amounts owed to other appointed counsel throughout the state.

I think this is a wise move by Judge Bodiford. There are a lot of people with outstanding balances that GPDSC needs to pay. And a lot of people already feel like the Nichols case is taking over the system. Hopefully the compromise will work.

There will be another hearing Monday where Judge Bodiford expects to announce a trial date. However, it still looks like keeping that trial date will depend on GPDSC getting the appropriate funding from the legislature.

Posted in Nichols, Public Defenders | Leave a Comment »

Today’s Nichols Update

Posted by Maggie on March 5, 2008

It’s shaping up to be a massive day for legal news in Georgia, so I’m going to start off with my ongoing Nichols coverage. A hearing was held last week, another was held Tuesday morning, and another is set for tomorrow. Looks like Judge Bodiford is sincere in his efforts to move the case forward.

Yesterday’s hearing sounds like a version of the hokey-pokey. Let the media come in. Kick the media out. Bring the media back in. Take them out again. Several times the media were excluded from arguments on various issues. A few main issues were addressed.

First, the release of records regarding defense funding to the public. It appears Bodiford has agreed to release at least some documents over defense counsel’s opposition. They’ve been given 15 days to appeal the judge’s ruling and a temporary stay is in effect until that time expires.

Second is GPDSC’s request to remove one member of Nichols’ defense team to cut costs. They’ve proposed this for a little while now. Judge Bodiford promised a ruling on Thursday, though he made it clear he’d prefer for that to be worked out privately between defense counsel and GPDSC. GPDSC claimed that 4 attorneys was more than enough. This, of course, ignores the fact that there are 5 DA’s on the case.

Finally, Judge Bodiford asked each side to make up a list of motions that need to be considered. Among these appears to be the possibility of finding another location for the trial. The article notes that the defense opposes a change of venue that would use a non-Fulton jury. I understand their rationale. Despite how close to home the case comes, they’ll likely get a more sympathetic jury in Fulton than elsewhere in the state. No one’s mentioned a possibility for the new location.

Posted in General, Nichols, Public Defenders | Leave a Comment »

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.

Posted in General, Public Defenders | Leave a Comment »

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.)

Posted in General, Nichols, Public Defenders | 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.

Posted in Nichols, Public Defenders | Leave a Comment »

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”

and

“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 »