Superior Court Judge David Roper called the Georgia Capital Defender Office “systemically broken” and announced his intention to appoint attorneys of his choosing.
Roper’s action came after a request from murder suspect Kelvin Johnson’s newly appointed co-counsel to delay trial less than a month before a jury was to be seated. That jury was to hear the case against Johnson, who police say shot and wounded Tilman Coley “T.C.” Greene in 2009, then fatally shot his wife, Martha Greene, 69, before stealing the couple’s TV and truck. Johnson pleaded not guilty to charges of murder, armed robbery and aggravated assault.
The problems cited by Johnson’s defense counsel – an overwhelming caseload and lack of funds – have been heard around the state, but the Capital Defender program’s executive director says they don’t indicate the program is part of a systemwide problem.
“Capital litigation can be very complicated and delays can happen during the opposing parties’ preparation of the case,” said W. Travis Sakrison, the executive director of the defender office. “The Johnson case has been directly impacted by some necessary personnel changes we’ve made at the Georgia Capital Defender. It is specific to that case and not systemic.”
But there have been challenges.
Created by the Georgia Legislature almost a decade ago, the Capital Defender program began representing indigent citizens facing the death penalty in 2005. The fanfare that met its creation soon withered as legislative funding dwindled.
In 2007, for example, Fayette County Judge Johnnie Caldwell removed capital defenders from a death penalty case when they said they weren’t prepared because they didn’t have money. Three public defenders handled the case until the capital defenders were reinstated 15 months later.
By 2008, experienced capital defenders were leaving, citing “uncertainty” as funding for the office dropped from $7 million in 2005 to $4.5 million in that fiscal year, according to reports by The Atlanta Journal-Constitution and the Associated Press.
Such financial pressures were cited in 2009 when capital defense attorneys representing Michael Ledford in Paulding County requested a judge hold the state and executive director of the Georgia Public Defender Standards Council in contempt for non-payment. Ledford was charged and later convicted in the
murder of Sandy Springs cyclist Jennifer Ewing. The payment issue was eventually resolved.
In 2010, attorneys for Khanh Dinh Phan in Gwinnett County asked the Georgia Supreme Court to dismiss the charges against their client or bar the state from seeking the death penalty because the state public defenders had not paid expert witnesses, attorney fees or investigators.
Phan’s double homicide case remains outstanding.
WITHIN THE Augusta Judicial Circuit, two of the four death penalty cases in place when 2012 began remain outstanding: Johnson and Adrian Hargrove. Both are represented by the Capital Defender Office.
After Johnson’s initial arraignments and motions were filed, the first salvo of 82 motions were launched in his defense April 1, 2010. As the first trial date of June 6, 2011, approached, Johnson’s attorney, Teri Thompson, asked to delay it because she was occupied with other capital defense cases. In her request to move the trial, Thompson listed all the documents still lacking in an investigation into Johnson’s early life in Louisiana and Texas. His attorneys also said they were searching for witnesses in those states “relating to his life and development that would be explanatory of the offenses for which he is being sentenced.”
The motion also asked Roper to consider that the funding for the Georgia Capital Defender Office had “decreased dramatically” from $7.5 million to below $5 million in 2011 and its caseload had increased from four to five cases to seven to eight cases per attorney throughout the state.
AUGUSTA CIRCUIT District Attorney Ashley Wright expressed doubt about Thompson’s list of reasons for the delay in an answer to the motion.
“This admission of ineffectiveness seems to be a trend state-wide among defense counsel. The State seeks to determine whether ineffectiveness is really a strategy or policy designed to thwart criminal prosecutions in general and death penalty prosecutions specifically,” Wright wrote May 16, 2011.
Wright questioned the notion of deficient funding, saying many of Thompson’s tasks do not require “any, much less extensive, funding to achieve.” For example, Wright’s office provided a “significant portion” of the defendant’s Georgia and Texas prison records from outside agencies at no cost.
Roper granted the delay, saying in his motion “the court expects defense counsel to move expeditiously to successfully address all issues raised in the motion.” A new trial date of Jan. 2 was set on June 8, 2011.
But on Nov. 16, 2011, a new motion to again delay the trial was filed by Thompson. She wrote she had just finished another death penalty trial Oct. 20, and because of that was “unable to simultaneously prepare for the death penalty trial of Mr. Johnson, or work on any facet of Mr. Johnson’s case.” Additionally, Thompson wrote she is now required to prepare for a Cobb County death penalty case.
Roper again delayed the trial until Aug. 6, but warned he had no intention of granting another continuance.
LAST WEEK the judge indicated he’d had enough, removing the defenders from Johnson’s case, questioning how a centralized system could adequately represent clients across the state.
“If one of the lawyers says, ‘I really need to go talk to my client’ and it’s an all-day event to have a 30 minute conference, there’s something wrong with that,” Roper said.
In his official order of continuance, Roper wrote that the Johnson case is indefinitely continued until he receives instruction from the Georgia Supreme Court.
Stephen Bright, a law professor at Yale University and one of the forces behind the creation of the Georgia Capital Defender Office, said in an e-mail that Roper’s declaration that the system is broken is “superficial.”
He said the system is much better when compared with the old way of representing indigent