Taxpayers already pay the police, judges, prosecutors and public defenders assigned to defendants too poor to hire their own lawyers. Now, there is a movement to require taxpayers to also begin supplying lawyers for appeals.
The Georgia Supreme Court ruled in 2008 that everyone convicted has a right to appeal on the grounds that the trial attorney was ineffective.
Last week, Fulton County Superior Court Judge Jerry Baxter validated the class-action status of a group of inmates who argued that the government is required to promptly provide them with an attorney for their appeal who will argue the trial attorney was indeed ineffective. And if the original attorney came from a public defenders' office, the appeal attorney would have to be a private lawyer who didn't have the inherent conflict of interest by working in the same office as a public defender.
"For one, an indigent defendant cannot be penalized for exercising the right to conflict-free counsel," Baxter wrote in his ruling. "Memories fade, and witnesses move away. An indigent defendant would be placed at a material disadvantage if he were forced to wait months or years before an appellate lawyer could begin investigating the grounds for the indigent defendant's motion for new trial or appeal."
WHEN THE SOUTHERN Center for Human Rights filed the suit, almost 200 people were waiting for a new lawyer to file their appeals. One of the named plaintiffs had been waiting almost a year.
These new rounds of appeals are a predictable consequence from years of the state underfunding public defenders when these people were originally tried, said Gerry Weber, senior attorney for the Southern Center and a former veteran with the American Civil Liberties Union.
But funding for poor defendants has roughly doubled in 10 years, from $54 million to $111 million, when state and local funds are included. The state has been paying a growing share, from less than 10 percent in 2000 to 37 percent this year.
The Legislative Overnight Committee that scrutinized the operations of the Georgia Public Defenders Standards Council minced no words in its annual report issued Wednesday, the day of Baxter's order.
"Recent court developments and State Bar of Georgia actions likely have destroyed Georgia's ability to provide and fund a comprehensive public defenders' system," the report said.
It blamed "ideological crusaders who consistently work to hijack and manipulate the system" with trying to break the bank.
The lawyers blame the state's get-tough stance with such severe, mandatory penalties for even nonviolent crimes that defendants feel compelled to use every means to fight for their freedom rather than taking their lumps with a form of punishment that doesn't include imprisonment.
THE STATE BAR of Georgia is in the process of approving an advisory opinion -- essentially a rule for all lawyers -- that would make it unethical for public defenders working in the same office to defend conflicted cases. Traditionally, public defenders have established what lawyers call a Chinese Wall between them so that no information about conflicted cases passes between them, but that opinion would say that would no longer suffice.
With only so many public defender offices, the result of the opinion is a rise in private attorneys hired at greater costs.
In the 10 weeks before the opinion was proposed, 182 conflict cases were declared by public defenders in the four judicial circuits with the most conflict cases. In the 10 weeks after the opinion was proposed, the number in those circuits soared to 585.
Last week, the director of the Public Defenders Standards Council, Mack Crawford, told legislative budget writers to prepare for more expense beyond what's allocated.
"I expect if the State Bar opinion holds, you're going to see a tremendous (amount) more than $4 million having to be spent," he said. "I don't know of any system we could put in place to do away with the $4 million."