Georgia Fails Its Poor Defendants, Report Says

Georgia is failing to meet its constitutional duty to protect the rights of poor people accused of crimes and must radically overhaul its system of indigent defense, a blue ribbon commission appointed by the state Supreme Court said Thursday.

The commission found the state’s fragmented system, which lacks quality control standards for lawyers representing the poor, enhances the possibility that innocent defendants wind up in jail and that some of the guilty stay in jail longer than they should. Indigents are supposed to see a lawyer within 72 hours of arrest but often wait weeks and sometimes months for an initial meeting with an attorney, it found.

Georgia’s indigent defense system “results in an inadequate, and in many respects, unconstitutional level of services, tremendous variation in quality and serious unfairness in the operation of the criminal justice system,” the 26-member commission said after completing a two-year study.

About 80% of the defendants in Georgia are indigent, “so in a lot of ways the indigent defense system is the criminal justice system,” said commission Chairman Charles R. Morgan, vice president and general counsel of BellSouth Corp.

The commission -- which included judges, legislators, prosecutors, private attorneys and county officials -- recommended dramatically increased funding, but said money alone would not solve the problem.

The delivery of indigent defense services must be “reorganized to ensure accountability, uniformity of quality, enforceability of standards and constitutionally adequate representation,” said the report, which was presented by Morgan and Paul Kurtz, associate dean at University of Georgia Law School, to the seven justices of the Georgia Supreme Court, who listened attentively in their courtroom.

The system should be run by a statewide board charged with the responsibility and power to hire and fire full-time defenders for each of the state’s 49 judicial circuits, define guidelines for the system and conduct training programs for attorneys involved in indigent defense, the commission recommended.

Georgia’s Chief Justice Norman S. Fletcher hailed the release of the report “as a great day for justice in Georgia.”

He said if the report’s recommendations are implemented, it would be a significant step toward providing “equal justice” in the state, where 170,000 criminal defendants qualified for a publicly funded lawyer last year.

Only 20 of Georgia’s 159 counties have full-time public defenders, while the remaining counties use attorneys picked by judges from a panel of attorneys who sign a contract to handle indigent cases for a fixed fee. Those contracts have been heavily criticized; some believe they create a disincentive to do little more than the minimal amount of work on each case.

The commission noted that a recent Georgia Court of Appeals decision “not only reversed a criminal conviction for ineffective assistance of counsel, but also provided a window into the actual operation of indigent defense” in the state.

That case involved a contract lawyer who had represented 300 indigents but had never taken a case to a jury. Rather, the lawyer encouraged them to plead guilty.

In the case at issue, the attorney’s client pleaded guilty to injuring someone while driving drunk and received a 15-year sentence.

The attorney interviewed no witnesses and did not once confer with his client during the 13 months between arraignment and the entry of the plea.

Lawton Stephens, one of the judges on the commission, said his views on indigent defense had been dramatically affected by the testimony earlier this year of Mark Straughn, a contract lawyer from rural Dodge County. Straughn, who received about $50 a case, said he believed it was a “grave error for a defense attorney to assume” his clients were innocent. Soon thereafter, his contract was taken away from him.

The report noted that two class-action suits, one in a rural county and one in Atlanta, already have led to some piecemeal reforms and that more lawsuits are anticipated. But the commission recommended “thorough, carefully considered reform of the Georgia system” by the state Legislature and executive branch as “far preferable to reform by litigation.”

Currently, Georgia counties fund the lion’s share of the state’s $50.6-million annual expenditure on indigent defense, with the state picking up only 11%.

The commission’s recommendations come at a time when Georgia is in the midst of a budget shortfall and newly elected Republican Gov. Sonny Perdue has called for further belt-tightening.

Nonetheless, commission member Charles C. Clay, an influential Republican attorney, said he thought there was a “good chance” that the commission’s structural reforms could be put in place next year. There is “a moral imperative” on this issue, he said.

Clay, who is expected to be chairman of the state Senate judiciary committee next year, said it would take longer, perhaps a few years, to change the funding mechanism so the state would assume primary responsibility, which he said the state was constitutionally obligated to do.

The report received praise from Stephen B. Bright, director of the Southern Center for Human Rights, which has filed five major lawsuits in recent years contending that various Georgia counties had failed to provide proper representation for poor defendants.

“The commission has acknowledged the undeniable -- the Georgia system is unconstitutional -- and has provided a blueprint to fix it,” Bright said. “I agree that a comprehensive legislative solution to this problem is preferable to piecemeal change by litigation. But if the Legislature doesn’t act, we’ll continue to file lawsuits until we bring each county into compliance with the Constitution.”