Bigger constitutional issues in Hills McGee's case can wait, a judge ruled Wednesday, setting the Augusta man free.
Superior Court Judge Michael N. Annis granted a habeas petition filed on McGee's behalf, agreeing that his incarceration was unlawful.
McGee had been sentenced in Richmond County State Court on Jan. 13 to pay $186 he owed to a private probation company -- Sentinel Offender Services -- or spend two months in jail.
"I was horrified," Assistant Public Defender Lindsey Hix said of the 30-second proceeding that sent McGee to jail. McGee didn't get a chance to contest the probation violation petition against him, ask for an attorney or say anything, she said.
Attorneys John B. Long, A. Montague Miller and John C. Bell volunteered to represent McGee in the habeas proceeding. They argued, and Annis agreed, that McGee's original guilty plea and the probation violation hearing were unconstitutional. McGee didn't have all the information needed to make an informed decision before giving up his right to an attorney, Annis ruled.
"I wonder how many people are in jail ... because they didn't know they had a right to an attorney without paying $50?" Annis said.
The law establishing the state's public defender system imposes a $50 application fee for any person who asks for a public defender. However, the law also states the judge will waive the $50 fee if a defendant cannot pay it.
On Wednesday, attorneys for the solicitor and Sentinel could not produce evidence that defendants are told about the fee waiver.
McGee said he didn't have $50 so he waived his right to an attorney and pleaded guilty in October 2008 to public drunkenness and obstruction of a law enforcement officer. He was sentenced to 24 months probation, and ordered to pay $270 in fines and surcharges and a $39 monthly probation supervision fee.
In January 2009, McGee was allowed to convert the court fines into community service because he couldn't pay.
McGee testified his only income is a $243 monthly disability check from the Department of Veterans Affairs. He completed his community service at Lake Olmstead, he said.
Although witnesses testified Wednesday that probationers no longer have to report to Sentinel once they pay their fines and comply with any other court-ordered conditions, a probation violation warrant for McGee's arrest was issued Nov. 9 stating McGee failed to pay $186 and didn't report to his probation officer.
McGee was arrested Jan. 12.
His sister, Margaret Jones, said her brother is incapable of understanding court proceedings because he is mentally ill -- bipolar and schizophrenic.
Attorneys representing acting State Court Solicitor P.J. Campanaro and Sentinel -- who were named as defendants in the habeas petition, along with Richmond County Sheriff Ronnie Strength -- contended the normal procedures in Richmond County State Court do safeguard defendants' rights.
Campanaro testified that someone with the public defender's office makes a speech at the beginning of each court session about the right to an attorney and fee waiver. Every defendant is given what's called a waiver of rights form that describes the rights to trial and to representation. The judge also goes over those rights, she said.
Andrew MacKenzie, the interim general counsel for Augusta who represents Campanaro, contended that McGee's signature on the waiver of rights form proves that he understood.
Pressed by the judge to show where on the form it says the $50 application fee for a public defender could be waived, MacKenzie pointed to the section that states a public defender can be appointed if a defendant is indigent.
"You can't tell someone 50 percent of their rights and say that's knowing," the judge said.
The issue of the $50 application fee is being challenged on constitutional grounds by McGee's attorneys.
They are also challenging the constitutionality of the state law that legalized the hiring of for-profit companies to provide probation services for state and municipal courts.
Annis agreed to postpone the hearing on those issues to give the city's and Sentinel's attorneys time to prepare. The habeas petition was filed Friday.
The sheriff will be dropped from the case because of McGee's release from jail.