On Their Own on Death Row in Georgia

Seven inmates on Georgia’s death row may be forced to represent themselves at hearings because the state is not required to provide appellate lawyers and a prisoners’ advocacy group says it cannot help.

Georgia is the only state that does not provide prisoners with lawyers after their initial appeals.

The state funds a resource center to help inmates in the second phase of their appeals. But its executive director, Tom Dunn, said his four-person staff was too overloaded to take the seven cases.

One of the inmates, Gregory Lawler, has a hearing scheduled in a month.

“He’s frightened,” Dunn said. “They’re all frightened. They want a lawyer.”

Many states provide little funding for representation during phase two, the state habeas corpus petition, in which an inmate can raise legal issues from his or her trial such as prosecutorial misconduct or suppression of exculpatory material.

But Georgia stands out when it comes to not providing legal representation, one expert said.

“Georgia is the only state that has just shrugged its shoulders and said if a condemned person doesn’t have a lawyer, it doesn’t matter,” said Stephen B. Bright, director of the Southern Center for Human Rights. “Other states have made a pretense of supplying a lawyer, even if it is an inadequate lawyer.”

Since 1996, Georgia has executed 16 people and set aside the death penalty in 17 appeals, Dunn said. There are 113 people on Georgia’s death row.

Dunn’s nonprofit organization, the Georgia Appellate Practice and Educational Resource Center, receives $800,000 a year to represent death row inmates.

The center’s funding has not increased since 2000, but its caseload has jumped 40%, said Emmet Bondurant, chairman of its board of directors. Meanwhile, the center has lost three lawyers whose salaries were paid by an outside source -- reducing the staff to four -- and recruiting pro bono lawyers has become more difficult.

Russ Willard, a spokesman for Georgia Atty. Gen. Thurbert E. Baker, said the center’s warnings were part of a strategy to increase funding.

The group’s budget to defend death row inmates, Willard said, is more than the attorney general’s budget to uphold the death penalty. State prosecutors must handle twice as many cases, Willard said.

“The arguments put forth by the Georgia Resource Center are hard to take at face value,” he said.

A series of court decisions set the stage for this standoff.

In 1989, the U.S. Supreme Court ruled that states are not constitutionally obliged to fund appellate representation for the poor. In that Virginia case, Justice Anthony M. Kennedy wrote that a state law provided counsel for death row inmates, and that no inmate had ever gone unrepresented in appeal.

In 1996, a Georgia case highlighted the issue: Exzavious Gibson was the first death row inmate in modern history to be forced to represent himself in a state habeas corpus proceeding -- an event the Atlanta Journal-Constitution described as a “mockery of justice.”

Gibson, whose highest IQ rating was 81, was convicted of stabbing a grocer to death when Gibson was 17. He arrived at the hearing without so much as a pen to take notes, an article in the Toledo Law Review reported.

Sitting alone opposite a lawyer for the state, Gibson answered with confusion when the judge asked him to present objections, witnesses or evidence in his defense. When the judge asked if he had any objection to a piece of evidence submitted by the state, he said: “Your honor, I don’t waive any rights, but I don’t have counsel, so I don’t know what to say about anything you have asked me or anything you will ask me.”

When the case moved up to the third phase of the appeal, the federal habeas corpus petition, U.S. District Judge Dudley H. Bowen Jr. sent it back for a second state hearing. “There is not a lawyer

Gibson’s case remains at the level of the state habeas corpus petition. As part of his appeal, the Georgia Supreme Court was asked in 1999 to rule on whether death row inmates had the right to taxpayer-funded counsel. The justices ruled 4 to 3 that the state should not be forced to provide funds.

As a result, that funding decision falls to the state legislature. Michael Mears, an Atlanta defense lawyer, said the yearly appropriations process was “a cat-and-mouse to see who blinks first.”

For the last two years, state legislators have voted to cut off funding for the resource center altogether, and the money has been restored at the last minute.

Habeas corpus is an area of law so technical that most lawyers are not able to grasp it, Bright said.

“I think everyone in the system -- including the state -- has an interest in people being represented in these cases,” he said. “The idea that someone can represent themselves in a habeas case is like suggesting you go to the airport and fly the plane yourself to Los Angeles.”