Executive Summary by wuxiangyu

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									Report of Chief Justice's Commission on
        Indigent Defense Part 1
                            Executive Summary
THE COMMISSION AND ITS WORK

        The Georgia Supreme Court issued an order on December 27, 2000
establishing the Chief Justice’s Commission on Indigent Defense, directing the
group to “study the status of indigent defense in Georgia, to develop a strategic
plan and to set a timetable for its implementation.” The Commission, reflecting a
broad range of backgrounds and experiences, spent two years completing its tasks.
During that time, the Commission conducted 17 public sessions at which it heard
from 65 individuals who provided information and suggestions for improvement of
Georgia’s indigent defense system. These individuals included representatives
from all parts of the criminal justice in Georgia, participants in indigent defense
reform projects in other states and representatives of the civil rights community. In
addition to hearing evidence from these individuals, the Commission conducted
site visits to two of Georgia’s judicial districts to observe court proceedings. The
final component of data collection took the form of a study by The Spangenberg
Group, a nationally and internationally recognized criminal justice research firm
which has conducted empirical research in criminal justice systems in each of the
fifty states over the last 15 years. After four months of site work in 19 carefully
selected Georgia counties (representing each of the state’s 10 judicial districts,
each of the various indigent defense delivery systems and approximately 45% of
the state’s population), the Spangenberg Group produced a 100-page report which
included specific findings concerning the operation of indigent defense in Georgia.
The Spangenberg Report appears as Appendix A to this Report.


CONSTITUTIONAL RIGHT TO COUNSEL

        Beginning in 1963 in its landmark decision in Gideon v. Wainwright, the
Supreme Court of the United States has made it clear that the Sixth Amendment to
the United States Constitution’s right to counsel requires appointment of counsel to
those who cannot afford to hire an attorney. Over the next 39 years, most recently
in its decision in Alabama v. Shelton in May of this year, the Court has expanded
this Sixth Amendment right to include: representation at many pretrial
proceedings, representation in an appeal as of right and availability of expert
witnesses in certain circumstances. In addition to the Sixth Amendment right to
counsel, the Georgia Constitution provides that “[e]very person charged with an
offense against the laws of this state shall have the privilege and benefit of



                                         1
counsel.”

HISTORY OF INDIGENT DEFENSE IN GEORGIA

       Beginning with the Georgia Criminal Justice Act in 1968 which directed
each of the state’s 159 counties to establish local indigent defense programs, the
State has attempted to respond to these constitutional mandates by providing
counsel to indigent criminal defendants. In the Georgia Indigent Defense Act of
1979, the General Assembly created the Georgia Indigent Defense Counsel as a
separate agency within the judicial branch. The GIDC was set up to administer
taxpayer funds to support local indigent defense programs and recommend to the
Georgia Supreme Court guidelines to govern the operation of such programs. The
current Supreme Court guidelines appear as Appendix C to this Report. Since
1965, the State Bar has been involved in attempting to improve the quality of
indigent defense services in Georgia. Additionally, in recent years both state and
federal litigation asserting that the Georgia indigent defense system is inadequate
and unconstitutional has been brought.

       Georgia’s current system of indigent defense is funded overwhelmingly by
the county governments. The Spangenberg Report, in outlining the funding
sources for indigent defense, asserts that approximately 11.6% of the total cost of
indigent defense is underwritten by the State of Georgia, with the rest being spent
by the individual counties. The tripartite committees, representing in each county
the county governing body, the superior court and the local bar association, are
charged by state law with the responsibility for operating the indigent defense
program. Currently, three different types of delivery systems are utilized in
Georgia’s indigent defense systems. The most heavily utilized format is the panel
system, which is used by 73 counties (of the 152 receiving state funds from the
GIDC) as the primary mechanism for provision of legal services. Under this
system, an attorney is appointed from a panel of attorneys. The second most
common system for provision of legal services is the contract system, which is
used in 59 counties as the primary system. Under this system, the attorney is hired
on a flat-fee basis to represent all indigent criminal defendants or all indigents in a
particular category, such as felony, juvenile, etc. Finally, 20 counties receiving
GIDC funds utilize a public defender system as the primary source of indigent
defense. Under this system, the public defender (and a staff of assistants in larger
counties) is a full-time government employee who devotes all of his or her time to
serving as an attorney for indigent criminal defendants.




                                          2
THE COMMISSION’S FINDINGS

      Based on the Commission’s numerous public hearings, a review of the
extensive documentation provided by witnesses and others and a careful review of
the Spangenberg Report, the Commission has concluded that the right to counsel
guaranteed by the state and federal constitutions is not being provided for all of
Georgia’s citizens. This failure is attributable to:

THE STATE OF GEORGIA IS NOT PROVIDING ADEQUATE FUNDING TO
FULFILL THE CONSTITUTIONAL MANDATE THAT ALL CITIZENS HAVE
EFFECTIVE ASSISTANCE OF COUNSEL AVAILABLE WHEN CHARGED
WITH A CRIME

   • The constitutional obligation to provide adequate legal services for indigents
     charged with violating state criminal law is imposed on the State of Georgia
     and this duty should be funded adequately by the State.

   • There is not enough money currently allocated within Georgia to the
     provision of constitutionally-mandated indigent criminal defense.

   • While precise estimates are not available at this time, the United States
     Supreme Court’s decision in Alabama v. Shelton has the potential for greatly
     expanding the burden on the already-inadequate Georgia system for the
     provision of indigent criminal defense.

THE STATE OF GEORGIA LACKS A STATEWIDE SYSTEM OF
ACCOUNTABILITY AND OVERSIGHT TO PROVIDE CONSTITUTIONALLY
ADEQUATE ASSISTANCE OF COUNSEL FOR INDIGENT DEFENDANTS

   • Georgia’s current fragmented system of county-operated and
     largely county-financed indigent defense services is failing the
     state’s mandate under the federal and state constitutions to protect
     the right of indigents accused of violation of the state criminal
     code.

   • There is no effective state-wide structure in placed designed to
     monitor and enforce compliance with existing Georgia Supreme


                                        3
  Court rules governing the operation of local indigent defense
  programs.

• The criminal defense function must be independent. In order to
  fully establish the appropriate independence, defense counsel must
  have responsibility for case by case administration, without
  depriving judges of their inherent right and obligation to insure that
  courtroom proceedings comply with the mandates imposed by
  fundamental law, statutes and the rules of professional
  responsibility. Similarly, independence from the executive
  function at the local level requires funding of indigent defense
  services at the state level.

• A public defender system is the delivery system most likely to
  afford effective representation to those entitled to it under legal and
  constitutional mandates.

• The quality of legal services provided to indigent defendants is
  significantly hampered by a failure of most systems to impose
  minimum eligibility requirements for the attorneys who represent
  indigent defendants.

• Funding for services such as expert witnesses, investigators and
  qualified interpreters is integral to a constitutionally acceptable
  level of indigent criminal defense. In many areas of the state
  inadequate funding for such services results in unfair and often
  unconstitutional treatment of indigent criminal defendants.

• Georgia lacks an effective approach to identifying and assisting
  indigent defendants with mental disabilities.

• Georgia lacks an effective approach to providing counsel for
  juvenile defendants.




                                  4
  • There is no comprehensive system of data collection designed to
    provide accurate statistics regarding the provision of indigent
    criminal defense services in Georgia.

  • Litigation designed to bring indigent criminal defense in various
    county systems into compliance with appropriate constitutional
    and legal standards has already been brought and, in some cases,
    yielded piecemeal reform by consent decree. Further litigation is
    being contemplated and likely will occur. Thorough, carefully
    considered reform of the Georgia system by the appropriate
    legislative and executive policy makers is far preferable to reform
    by litigation in the state and federal courts.


THE COMMISSION’S RECOMMENDATIONS

      In light of its findings, the Commission recommends the following
steps be taken as quickly as is feasible:

  • Adequate funding of indigent criminal defense in cases alleging a
    violation of state law should be provided by appropriations by the
    Georgia General Assembly.

  • The delivery of indigent defense services should be reorganized to
    insure accountability, uniformity of quality, enforceability of
    standards and constitutionally adequate representation. Such a
    system would: 1) deliver indigent legal services at the circuit level,
    rather than the county level; 2) presumptively deliver services
    through a full-time public defender with appropriate support staff;
    3) be operated by a statewide board charged with the responsibility
    and power to operate the entire system. This board should be
    given: the power to hire and fire circuit public defenders, the
    power to define the guidelines under which public defender, panel
    and contract systems will operate and the responsibility to provide



                                   5
     meaningful review of the operation of local systems and the
     responsibility to conduct training programs for attorneys involved
     in indigent defense.

  • The State should adopt principles to govern the system of
    providing legal services to indigent criminal defendants.

  • The State should adopt performance standards by which attorneys
    providing indigent defense should be evaluated.

  • The State should develop a systematic, uniform, and effective
    approach for identifying and assisting indigent defendants with
    mental disabilities.

  • The State should develop a uniform, effective approach to
    providing counsel for juvenile defendants, including establishing
    uniform procedures for determining indigency.

  • A comprehensive data collection system designed to provide an
    accurate picture of the provision of indigent criminal defense
    services in Georgia should be established and implemented.

  • Because of the significant extra funding and structural reform
    required to operate a constitutionally-sufficient indigent system a
    transition plan must be created to expeditiously create a new
    system to remedy current inadequacies.

CONCLUSION

       After lengthy consideration of the operation of indigent defense in
this state, the Commission has determined that significant improvement
is necessary to insure that our state has a constitutionally-sufficient, fair
criminal justice system. Significantly more money must be devoted to
providing a defense to those without adequate resources to provide it for



                                     6
themselves. The Commission also concludes that an infusion of
additional money, while absolutely necessary, is not sufficient to
complete the awaiting task. In addition to more resources, a system
which insures quality, uniformity and accountability must be created by
the State




                                   7
I. The Chief Justice’s Commission on Indigent Defense

       A. The Charge to the Commission

       On December 27, 2000, the Georgia Supreme Court issued an order establishing
the Chief Justice’s Commission on Indigent Defense. Stating that it was “mindful of the
need for competent and cost-efficient representation for indigents in this state,” the court
directed the Commission to “study the status of indigent defense in Georgia, to develop a
strategic plan and to set a timetable for its implementation.” It named Charles R.
Morgan, Executive Vice President and General Counsel of BellSouth Corporation, as
Chair and Paul Kurtz of the University of Georgia School of Law as Reporter. The
membership of the Commission1 reflected a broad range of backgrounds and experiences.
Included were state and federal judges, attorneys from private practice, state legislators,
attorneys active in the provision of indigent criminal defense, the director of the Georgia
Legal Services which provides legal services to indigents in non-criminal matters, a
representative of the County Commissioners of Georgia, the Chair of the State Bar
Indigent Defense Committee and lay persons.2 Three Atlanta law firms: 1) McKenna Long

1
 Since the original creation of the Commission and appointment of the Commissioners in 2000,
several changes in membership occurred. The textual description refers to the current
membership of the Commission, which includes: A. Harris Adams (Chief Judge, State Court of
Cobb County); Stanley F. Birch, Jr. (U.S. 11th Circuit Court of Appeals); Robert Brown (Georgia
State Senate); Charles C. Clay (Senator-Elect, Georgia State Senate); Terry Coleman (Georgia
House of Representatives); Flora Devine (Immediate Past Chair, Georgia Indigent Defense
Council); C. Wilson DuBose (Attorney, Winkler DuBose & Davis and Chair, Georgia State Bar
Indigent Defense Committee); C. Andrew Fuller (Judge, Superior Court, Northeastern Judicial
Circuit); Jerry R. Griffin (Executive Director, Association County Commissioners of Georgia);
Allen Hammontree (Georgia House of Representatives); Phyllis J. Holmen (Executive Director,
Georgia Legal Services Program); Paul Holmes (Georgia Chamber of Commerce); Howard O.
Hunter (Interim Provost, Emory University); R. William Ide (Past President, American Bar
Association); Curtis Jenkins (Georgia House of Representatives); Robert E. Keller (District
Attorney, Clayton County); George O. Lawson, Jr. (Attorney, Lawson & Thornton); Charles
Lester (Past President, Georgia State Bar); Michael Meyer von Bremen (Georgia State Senate);
Aasia Mustakeem (Attorney, Powell, Goldstein, Frazer & Murphy); William M. Ray, II (Judge,
Superior Court, Gwinnett Circuit); Miller Pete Robinson (Attorney, Page, Scrantom, Sprouse,
Tucker & Ford); Lawton Stephens (Judge, Superior Court, Western Judicial Circuit); A. Blenn
Taylor (Judge, Superior Court, Brunswick Judicial Circuit).
2
  The Commission has been assisted a great deal by the excellent work of Ms. S. Kendall
Butterworth of BellSouth Corporation, who has served as Special Assistant to the Chair of the
Commission. Ms. Butterworth has attended every session of the Commission, developed,
organized and coordinated the agenda for Commission meetings (including arranging for
speakers) prepared presentation materials for the Chair and the Reporter on the Commission’s
activities and served as liaison to the Administrative Office of the Courts. Likewise, Ms. Emily
N. Ward, who served as Staff Assistant to the Commission, and Ms. Julie E. Cook, both of



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& Aldridge; 2) Powell, Goldstein, Frazer & Murphy and 3) Sutherland, Asbill & Brennan were
gracious in providing meeting facilities for the Commission during times when the Supreme
Court facilities were not available to the Commission.
       B. The Work of the Commission

       The Commission held its organizational meeting on January 29, 2001 and heard
testimony at seventeen public sessions. At these sessions, a total of 65 individuals
provided information, both in the form of prepared statements and responses to questions,
to the Commission. These individuals included criminal defense attorneys both from
within and outside Georgia, prosecuting attorneys from Georgia and the Executive
Director of the Prosecuting Attorneys’ Council of Georgia, representatives (both staff and
board members) of the Georgia Indigent Defense Council, trial court judges from
Georgia (including the President of the Council of Superior Court Judges),
representatives of the Georgia Council of Juvenile Court Judges, sheriffs, representatives
of the State Bar of Georgia (including the current president and a number of past
presidents), participants in indigent defense reform efforts in Kentucky, Michigan,
Tennessee, Indiana, North Carolina and Texas, members of the civil rights community,
defendants and their families, and experts in indigent defense.

       In addition to hearing evidence from these witnesses, Commission members have
visited two of Georgia’s ten judicial districts to conduct courtroom observations. On July
26, 2001, a group of Commission members observed proceedings in Judge Walter
Matthews’ courtroom in Floyd County Superior Court and met with Judge Matthews, the
indigent defense administrator, the district attorney and two indigent defense attorneys
afterwards for lunch. On October 18, 2001, another group of Commissioners visited Hall
County Superior Court and observed proceedings in Judge Andrew Fuller’s courtroom.
The Commissioners also met with the Hall County Superior Court Judges, district
attorneys, the Hall County indigent defense administrator and some indigent defense
attorneys after the courtroom observations.

BellSouth Corporation have been extremely valuable in assisting the Commission in the
completion of its tasks. Grateful appreciation is also offered by the Commission members to the
staff of the Administrative Office of the Courts of Georgia, especially Ms. Cynthia Hinrichs
Clanton and Ms. Bonnie Tinker, along with Billie Bolton, Patricia Smith, Jay Martin, Philippa
Maister and Michael Kendrick. The Commission is also deeply appreciative of the continued
interest by the Georgia Supreme Court. Several justices of the court attended meetings of the
Commissi on and encouraged it in its work.

        The Commission, and especially the Reporter, would like to acknowledge and thank Mr.
Roger G. Gustafson, judicial clerk to the Honorable Stanley F. Birch, of the United States Court
of Appeals for the Eleventh Circuit, a member of the Commission. Mr. Gustafson’s excellent
research and drafting played a significant role in the portion of this Report dealing with the
history of indigent defense jurisprudence in the federal courts.




                                               9
        In addition to its own efforts, the Commission requested the Supreme Court,
through the Administrative Office of the Courts, to retain The Spangenberg Group (“The
Spangenberg Group”) to conduct a statewide study of Georgia’s indigent defense
systems. The Spangenberg Group is a nationally and internationally recognized criminal
justice research and consulting firm that specializes in research concerning indigent
defense services. For over 15 years, it has been under contract with the American Bar
Association’s Bar Information Program (ABA-BIP), which provides support and
technical assistance to individuals and organizations working to improve their
jurisdictions’ indigent defense systems. It has conducted empirical research in each of
the 50 states and compiled comprehensive statewide studies of the indigent defense
systems in more than half the states. Prior to undertaking this work for the Commission,
the Spangenberg Group had compiled studies of the Fulton County indigent defense
system, the Fulton County Conflict Defender and a review of the University of Georgia’s
Legal Aid & Defender Clinic which serves as the Public Defender in the Western Judicial
Circuit.

       The Spangenberg Group’s report (which is attached to this Report as Appendix A)
is based on two major components: data collection/analysis and on-site assessment. For
the data collection and analysis, The Spangenberg Group collected information on cost,
caseload and system type for each of Georgia’s 159 counties. The Spangenberg Group
conducted site work from January 2002 through April 2002, which involved visits to 19
counties that were selected based upon factors such as judicial district, geography,
population and diversity of type of delivery system (contract, appointed counsel or public
defender). The Spangenberg Group spoke with defense attorneys, judges, district
attorneys, sheriffs, probation officers, tripartite committee members and county
commissioners to obtain insight into the county’s current system and opinions on how the
current system might be improved. In addition to these interviews, The Spangenberg
Group observed criminal court sessions in most of the counties in the study. The selected
19 counties represented each of Georgia’s 10 judicial districts and roughly 45% of
Georgia’s population. The Spangenberg Group has been engaged and will perform
additional site visits to magistrate, municipal, state and probate courts in the original 19
counties in order to assess the impact of the May, 2002 United States Supreme Court
decision in Alabama v. Shelton, 122 S. Ct. 1764 (2002) (holding the Sixth Amendment
of the United States Constitution forbids imposition of a suspended sentence of
imprisonment upon an indigent defendant who has neither received a court-appointed
lawyer nor waived the right to counsel).3 A supplemental report will be submitted by The
Spangenberg Group on its findings concerning the impact of Shelton. The Commission
intends to make its recommendations concerning the implications of the Shelton decision
for Georgia’s indigent defense systems after the receipt of that report.

3
    The Shelton decision appears as Appendix B to this Report.




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II. Indigent Defense in Georgia

      A. United States Supreme Court Jurisprudence on Right to Counsel for
Indigents

         The United States Constitution’s Sixth Amendment guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” As the Supreme Court has recognized, “the right to be
represented by counsel is among the most fundamental of rights . . . [because] it is
through counsel that all other rights of the accused are protected.”4 Beginning with its
seminal decision in Powell v. Alabama5 holding that due process requires state courts to
appoint counsel for indigent criminal defendants in certain capital cases, the Court has
addressed an indigent defendant’s right to appointed counsel not only during criminal
trials, but also at critical stages of pretrial proceedings, on appeal and in non-criminal
proceedings resulting in a loss of individual liberty. In addition, the Court has addressed
the obligation to provide other court-appointed experts to assist a criminal defendant.
While apparently no federal court has decided the question, allocation of financial
responsibility of indigent defense between state and local governments has been
addressed by some state courts.

                 1. Right to Appointed Counsel During Criminal Trial

        In Gideon v. Wainwright,6 the Court extended the Sixth Amendment right to
counsel, already established in federal court proceedings in Johnson v. Zerbst,7 to state
criminal prosecutions through the Fourteenth Amendment.8 In the Court’s view, “that
lawyers in criminal courts are necessities, not luxuries” promotes an “obvious truth” that
“any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair
trial unless counsel is provided for him.”9
4
    Penson v. Ohio, 488 U.S. 75, 84 (1988).
5
    287 U.S. 45 (1932).
6
  372 U.S. 335 (1963). It should be noted that Eugene Cook, then Attorney General of the State
of Georgia, joined the Attorneys General of 21 other states in filing amicus curiae briefs
supporting Clarence Gideon’s claim of a constitutional violation. See MEARS, A BRIEF HISTORY
                                                  nd
OF THE GEORGIA INDIGENT DEFENSE COUNCIL 2 (2 ed. 1998) (hereinafter MEARS).

7
    304 U.S. 458 (1938).
8
     Id. at 344-45.
9
    Gideon, 372 U.S. at 344.



                                              11
          The right ... to counsel may not be deemed fundamental and essential to
          fair trials in some countries, but it is in ours. From the very beginning, our
          state and national constitutions and laws have laid great emphasis on
          procedural and substantive safeguards designed to assure fair trials before
          impartial tribunals in which every defendant stands equal before the law.
          This noble idea cannot be realized if the poor man charged with crime has
          to face his accusers without a lawyer to assist him. . . . “The right to be
          heard would be, in many cases, of little avail if it did not comprehend the
          right to be heard by counsel. Even the intelligent and educated layman . . .
          lacks both the skill and knowledge adequately to prepare his defense, even
          though he have a perfect one. He requires the guiding hand of counsel at
          every step in the proceedings against him. Without it, though he be not
          guilty, he faces the danger of conviction because he does not know how to
          establish his innocence.”10

        In Argersinger v. Hamlin,11 the Court clarified Gideon and announced that the
right to counsel extends “to any criminal trial, where an accused is deprived of his
liberty.”12 Rejecting “the premise that since prosecutions for crimes punishable by
imprisonment for less than six months may be tried without a jury, they may also be tried
without a lawyer,”13 and doubting that the “legal and constitutional questions involved” in
the criminal prosecution of a petty crime are necessarily less complex than those of a
non-petty crime,14 the Court held “that absent a knowing and intelligent waiver, no person
may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony,
unless he was represented by counsel at his trial.”15

10
     Id. at 344-45 (quoting Powell v. Alabama, 287 U.S. 45, 68-69 (1932)).
11
     407 U.S. 25 (1972).
12
     Id. at 32.
13
     Id. at 30-31.
14
     Id. at 33.
15
  Id. at 37. Later, the Court refused to extend its rulings to provide Sixth Amendment right to
counsel where the punishment was a fine, rather than imprisonment. In Scott v. Illinois, 440 U.S.
367 (1979), the Court wrote:

          [T]he central premise of Argersinger–that actual imprisonment is a penalty
          different in kind from fines or the mere threat of imprisonment–is eminently
          sound and warrants adoption of actual imprisonment as the line defining the
          constitutional right to appointment of counsel. . . . We therefore hold that the
          Sixth and Fourteenth Amendments to the United States Constitution require only



                                                12
       In Alabama v. Shelton16, the Court dealt with the question of whether the Sixth
Amendment was violated by the imposition of a suspended sentence upon a
misdemeanant who neither had counsel nor waived his right to representation.17
Applying “the key Sixth Amendment inquiry [] whether the adjudication of guilt . . . is
sufficiently reliable to permit incarceration,”18 the Court held “that a suspended sentence
that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed
unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for
the crime charged.”19 In doing so, Justice Ginsburg’s opinion for a five-member majority
rejected the argument advanced by invited amicus that provision of counsel at the
probation revocation hearing which might immediately result in imprisonment was
sufficient under the Constitution.20 The majority also rejected the dissent’s argument that,
because the Court in Scott drew “a bright line between imprisonment and the mere threat
of imprisonment,”21 imposition of a suspended sentence without counsel at trial, standing
alone, is permissible, particularly where states can impose safeguards in later proceedings
that activate the sentence.22
          that no indigent criminal defendant be sentenced to a term of imprisonment unless
          the State has afforded him the right to assistance of appointed counsel in his
          defense.

440 U.S. at 373-74.
16
     122 S. Ct. 1764 (2002).
17
   Id. at 1767. In Shelton, the defendant was placed on probation which was revocable upon
violation of its terms. Probation revocation would trigger incarceration under the suspended
sentence.
18
     Id. at 1772.
19
   Id. at 1767 (citations omitted). The Court also justified its holding on the grounds that “[m]ost
jurisdictions already provide a state-law right to appointed counsel more generous than that
afforded by the Federal Constitution,” id. at 1773, and that pretrial probation is a viable
alternative to the imposition of uncounseled suspended sentences in misdemeanor cases. Id. at
1774.
20
   Id. at 1770-71. The Court noted that a probation revocation hearing differs from activating a
suspended sentence previously imposed in that the “sole issue at the” former “is whether the
defendant breached the terms of probation. . . . The validity or reliability of the underlying
conviction is beyond attack.” Id. at 1772. “Once the prison term is triggered, the defendant is
incarcerated not for the probation violation, but for the underlying offense.” Id. at 1770.
21
     Id. at 1776 (J. Scalia, dissenting).
22
     Id. at 1772-73.




                                                13
       As to the right to appointed counsel at trial generally, although the Sixth
Amendment does not guarantee a “‘meaningful relationship’ between an accused and his
counsel,”23 it does ensure the right to the effective assistance of counsel.24 Moreover,
where the right to counsel is a “constitutional requisite, the right to be furnished counsel
does not depend on a request” by the defendant.25 Instead, to avoid a constitutional
violation, the state must prove “‘an intentional relinquishment or abandonment of a
known right or privilege’”26 by the defendant and courts must “indulge in every
reasonable presumption against waiver.”27

                   2. Right to Appointed Counsel at Pretrial Proceedings

       Although “[t]here was no occasion in Gideon to enumerate the various stages in a
criminal proceeding at which counsel was required, . . . appointment of counsel for an
indigent is required at every stage of a criminal proceeding where substantial rights of a
criminal accused may be affected”28 and substantially prejudiced.29 Thus, an indigent
criminal defendant

          [N]eed not stand alone against the State at any stage of the prosecution,
          formal or informal, in court or out, where . . . the presence of his counsel is
          necessary to preserve the defendant’s basic right to a fair trial.30

In a landmark decision, Justice Sutherland explained the necessity of an attorney at
certain critical stages before trial:

23
     Morris v. Slappy, 461 U.S. 1, 14, (1983) (citation omitted).
24
     McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).
25
     Michigan v. Jackson, 475 U.S. 625, 633 n. 6 (1986).
26
  Brewer v. Williams, 430 U.S. 387, 404 (1977) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)).
27
     Id. at 404.
28
     Mempa v. Rhay, 389 U.S. 128, 134 (1967).
29
     United States v. Wade, 388 U.S. 218, 227 (1967).
30
   Id. at 226-27; see also Brewer v. Williams, 430 U.S. 387, 398; but see Coleman v. Alabama,
399 U.S. 1, 23 (1970) (J. Black, concurring) (objecting to Court’s apparent focus on “a right to a
‘fair trial’ as conceived by judges” instead of the Sixth Amendment’s right to counsel
provisions).




                                                 14
         [D]uring perhaps the most critical period of the proceedings ... that is to
         say, from the time of their arraignment until the beginning of their trial,
         when consultation, thorough-going investigation and preparation were
         vitally important, the defendants did not have the aid of counsel in any real
         sense, although they were as much entitled to such aid during that period as
         at the trial itself.31

        Drawing a bright line among pretrial proceedings, however, proved to be a more
difficult and contentious task. In a plurality opinion almost 40 years after Powell, the
Court, after examining a series of cases in the area, concluded that the right to counsel
“attaches only at or after the time that adversary judicial proceedings have been initiated
against” the defendant and that “all of those cases have involved points of time at or after
the initiation of adversary judicial criminal proceedings–whether by way of formal
charge, preliminary hearing, indictment, information, or arraignment.”32 Five years later,
the Court was less unequivocal: “Whatever else it may mean, the right to counsel . . .
means at least that a person is entitled to the help of a lawyer at or after the time that
judicial proceedings have been initiated against him.”33 In United States v. Gouveia,34 the
Court ignored that apparent ambivalence and adopted the plurality’s conclusion in Kirby,
stating that the Court’s “cases have long recognized that the right to counsel attaches only
at or after the initiation of adversary judicial proceedings against the defendant.”35

       The Court’s rationale grew out of a realization that the “core purpose” of the
constitutional guarantee is to protect the defendant when “confronted with both the
intricacies of the law and the advocacy of the public prosecutor.”36

         The initiation of judicial criminal proceedings is far from a mere formalism.
         It is the starting point of our whole system of adversary criminal justice.
         For it is only then that the government has committed itself to prosecute,
         and only then that the adverse positions of government and defendant have

31
     Powell v. Alabama, 287 U.S. 45, 57 (1933).
32
     Kirby v. Illinois, 406 U.S. 682, 688-89 (1972).
33
     Brewer, 430 U.S. at 398 (emphasis added).
34
     467 U.S. 180 (1984).
35
  Id. at 187. By contrast, seizing upon that ambivalence, Justice Stevens, in a concurring
opinion, argued that Brewer’s formulation “does not foreclose the possibility that the right to
counsel might under some circumstances attach prior to the formal initiation of judicial
proceedings.” Id. at 193.
36
     United States v. Ash, 413 U.S. 300, 309 (1973).




                                                 15
         solidified. It is then that a defendant finds himself faced with the
         prosecutorial forces of organized society, and immersed in the intricacies of
         substantive and procedural criminal law. It is this point, therefore, that
         marks the commencement of the ‘criminal prosecutions’ to which alone the
         explicit guarantees of the Sixth Amendment are applicable.37

        Thus, Supreme Court jurisprudence has established that an indigent defendant has
a constitutional right to appointed counsel in a state criminal proceeding, not only at trial,
but also at: (1) a post-indictment lineup;38 (2) an arraignment in a capital case where state
law made it a critical stage in the criminal proceeding, even if the defendant was not
prejudiced by lack of counsel;39 (3) a preliminary hearing at which the defendant pleaded
guilty, regardless of actual prejudice, even if state law did not require a plea at the
hearing;40 (4) a probable cause hearing, before arraignment, where defendant’s guilty plea
was used later at trial on cross-examination;41 (5) a preliminary hearing, optional under
state law or one in which nothing could substantially prejudice the defendant at trial;42 (6)
a post-indictment secret interrogation by police43; and (7) a preindictment custodial

37
     Kirby, 406 U.S. at 689-90 (citation omitted).
38
   United States v. Wade, 388 U.S. 218, 236-37, 239 (1967) (“ . . . the postindictment lineup was
a critical stage of the prosecution at which” the defendant was entitled to counsel, where there
were no “[l]egislative or other regulations . . . which eliminate[d] the risks of abuse and
unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation
at trial.”).
39
  Hamilton v. Alabama, 368 U.S. 52, 53 (1961) (“When one pleads to a capital charge without
benefit of counsel, we do not stop to determine whether prejudice resulted.”).
40
     White v. Maryland, 373 U.S. 59, 60 (1963).
41
     Arsenault v. Massachusetts, 393 U.S. 5, 5-6 (1968).
42
   Coleman v. Alabama, 399 U.S. 1, 8-10 (1970). The state court had found no prejudice
because, under Alabama law, the preliminary hearing was not a required step, the “‘accused is
not required to advance any defenses, and failure to do so does not preclude him from availing
himself of every defense he may have upon the trial of the case,’” and testimony not subjected to
cross-examination is barred at trial. Id. at 8. Four members of the Court observed that counsel is
required at a preliminary hearing in order to “expose fatal weaknesses in the State’s case” that
could persuade the magistrate judge not to bind the case over for trial, preserve a basis for
impeachment at trial, to facilitate adequate preparation for trial, and to make “effective
arguments for the accused on such matters as the necessity for an early psychiatric examination
or bail.” Id. at 9.
43
  Massiah v. United States, 377 U.S. 201, 205 (1964) (“‘[a]ny secret interrogation of the
defendant, from and after the finding of the indictment, without the protection afforded by the
presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes



                                                  16
interrogation under certain conditions.44 Thus, the right to counsel generally “has two

and the fundamental rights of persons charged with crime.’”) (citation omitted).
44
     In Escobedo v. Illinois, 378 U.S. 478 (1964), the Court held that:

         [W]here ...the investigation is no longer a general inquiry ... but has begun to
         focus on a particular suspect, the suspect has been taken into police custody, the
         police carry out a process of interrogations that lends itself to eliciting
         incriminating statements, the suspect has requested and been denied an
         opportunity to consult with his lawyer, and the police have not effectively warned
         him of his absolute constitutional right to remain silent, the accused has been
         denied ‘The Assistance of Counsel’ in violation of the Sixth Amendment to the
         Constitution.

Id. at 490-91. Observing that the defendant “had [in essence] become the accused . . . [since] the
purpose of the interrogation was to ‘get him’ to confess his guilt,” id. at 485, the Court concluded
that “[it] would exalt form over substance to make the right to counsel, under these
circumstances, depend on whether at the time of the interrogation, the authorities had secured a
formal indictment.” Id. at 486. Denying counsel under these circumstances “would make the
trial no more than an appeal from the interrogation . . . .” Id. at 487 (citation omitted).

        In Miranda v. Arizona, 384 U.S. 436 (1966), the Court “held that the privilege against
compulsory self-incrimination includes a right to counsel at a pretrial custodial interrogation.”
Coleman, 399 U.S. at 7; see also United States v. Gouveia, 467 U.S. 180, 194 (1984) (J. Stevens,
concurring). In Johnson v. New Jersey, 384 U.S. 719 (1966), however, the Court clarified that
the “prime purpose” of Escobedo and Miranda was “to guarantee full effectuation of the
privilege against self-incrimination,” not the Sixth Amendment right to counsel standing alone.
Id. at 729; see also Gouveia, 467 U.S. at 188 n.5. As the Third Circuit has explained:

         The opinion ... in Escobedo . . . represents the high watermark of the movement in
         the Supreme Court to control police methods of interrogation through the sixth
         amendment. . . . [I]n Miranda . . . all involved saw in Escobedo the potential for a
         holding that all post-arrest interrogation by government agents in the absence of
         counsel was prohibited by the sixth amendment. That was not to be. Instead the
         court completely changed direction, abandoning the sixth amendment as a basis
         for control of post-arrest, pre-indictment interrogation by government agents. . . .
         Instead . . . [,] [t]he privilege against self-incrimination was identified as
         primarily, if not solely, a fifth amendment problem . . . . The precise holding in
         Escobedo . . . [, however,] was not overruled. Rather, as Professor Kamisar has
         put it, “by moving from a right to counsel base in Escobedo to a self-
         incrimination base, ‘Miranda [did] not [enlarge] Escobedo as much as it displaced
         it.’”

United States v. Muzychka, 725 F.2d 1061, 1066-1068 (3d Cir. 1984) (footnotes omitted).




                                                 17
sources. The Fifth Amendment protection against compelled self-incrimination provides the
right to counsel at custodial interrogations. The Sixth Amendment guarantee of assistance of
counsel also provides the right to counsel at . . . ‘the initiation of adversary judicial
proceedings.’” Michigan v. Jackson, 475 U.S. 625, 629, (1986) (citations omitted). There is,
however, no right to counsel upon mere arrest.45

                 3. Right to Appointed Counsel on Appeal and in Post-Conviction
Attacks

        Both the Due Process and Equal Protection Clauses of the Fourteenth Amendment
require states to “‘affor[d] adequate and effective appellate review to indigent
defendants.’”46 Such review is afforded by a state’s appellate procedure “so long as it
reasonably ensures that an indigent’s appeal will be resolved in a way that is related to
the merit of that appeal”47 in light of two underlying goals: ensuring meaningful appellate
access to indigent defendants while “enabl[ing] the State to ‘protect itself so that
frivolous appeals are not subsidized and public moneys not needlessly spent.’”48 Applying
this standard, the Court vacated the judgment of a state appellate court that, in accordance
with state law, denied two indigent criminal defendants the assistance of counsel on their
first appeal of right after having reviewed the record itself and determined that “‘no good
whatever could be served by appointment of counsel.’”49 Recognizing that on appeal
“only the barren record speaks for the indigent, and, unless the printed pages show that
injustice has been committed, he is forced to go without a champion on appeal,” the
Court rejected this “ex parte” approach and concluded that, “where the merits of the one
and only appeal an indigent has as of right are decided without benefit of counsel, . . . an
unconstitutional line has been drawn between rich and poor” and “the right to appeal does
not comport with fair procedure.”50

45
   See Gouveia, 467 U.S. at 190 (“we have never held that the right to counsel attaches at the
time of arrest.”). “[D]eclin[ing] to depart from . . . [its] traditional interpretation of the Sixth
Amendment right to counsel” and in view of other constitutional and statutory protections, the
Court refused to extend the right to counsel to a preindictment delay in the special case of
prisoners who could be held indefinitely for an alleged crime committed in prison before
charged. Id. at 192.
46
  Smith v. Robbins, 528 U.S. 259, 276 (2000) (quoting Griffin v. Illinois, 351 U.S. 12, 20
(1956)).
47
     Id. at 276-77.
48
     Id. at 277-78 (citation omitted).
49
     Douglas v. California, 372 U.S. 353, 358 (1963) (citation omitted).
50
     Id. at 356-57.




                                                 18
          There is lacking that equality demanded by the Fourteenth Amendment
          where the rich man ... enjoys the benefit of counsel’s examination into the
          record, research of the law, and marshalling of arguments on his behalf,
          while the indigent, already burdened by a preliminary determination that
          his case is without merit, is forced to shift for himself. The indigent, where
          the record is unclear or the errors are hidden, has only the right to a
          meaningless ritual, while the rich man has a meaningful appeal.51

In Evitts v. Lucey,52 the Court similarly observed that “[a]n unrepresented appellant–like
an unrepresented defendant at trial–is unable to protect the vital interests at stake.”53

       The Court refused to extend Douglas, however, to discretionary state appeals or
applications for review in the U.S. Supreme Court.54 Cognizant that “[t]he precise
rationale for the Griffin and Douglas line of cases ha[d] never been explicitly stated,”55
the Court bifurcated its analysis between the Due Process and Equal Protection Clauses
as “each depend[s] on a different inquiry which emphasizes different factors.”56 Under its
Due Process analysis, the Court concluded that, because “the State need not provide any
appeal at all,” it is not necessarily unfair to deny appointed counsel to indigent appellants,
especially since “[t]he defendant needs an attorney on appeal not as a shield to protect
him against being ‘haled into court’ by the State and stripped of his presumption of
innocence [as he does during trial], but rather as a sword to upset the prior determination
of guilt.”57 Under its Equal Protection analysis, the Court noted that the Clause “‘does
not require absolute equality or precisely equal advantages,’” or that the state “‘equalize
economic conditions.’”58 In addition, the indigent defendant, in seeking discretionary
review, “will have, at the very least, a transcript or other record of trial proceedings, a
brief on his behalf in the Court of Appeals setting forth his claims of error, and in many
cases an opinion by the Court of Appeals disposing of his case,” providing adequate basis

51
     Id. at 357-58.
52
     469 U.S. 387 (1985).
53
     Penson v. Ohio, 488 U.S. 75, 85 (1988) (citation omitted).
54
     Ross v. Moffitt, 417 U.S. 600, 610, 612 (1974).
55
     Id. at 608.
56
     Id. at 609.
57
     Id. at 610-11.
58
     Id. at 612 (citations omitted).




                                                19
on which to grant or deny discretionary review. Thus, the Court concluded that denying
counsel at this stage does not violate the Equal Protection Clause.59

          The duty of the State under our cases is not to duplicate the legal arsenal
          that may be privately retained by a criminal defendant in a continuing effort
          to reverse his conviction, but only to assure the indigent defendant an
          adequate opportunity to present his claims fairly in the context of the
          State’s appellate process.60

       Likewise, “since a defendant has no federal constitutional right to counsel when
pursuing a discretionary appeal on direct review of his conviction,” the Court has refused
to mandate appointment of counsel to indigent persons mounting collateral attacks (e.g.,
habeas corpus) on their convictions.61 “Postconviction relief is even further removed from
the criminal trial than is discretionary direct review. It is not part of the criminal
proceeding itself, and it is in fact considered to be civil in nature.”62 In Murray v.
Giarratano,63 the Court concluded “that th[is] rule . . . should apply no differently in
capital cases than in noncapital cases” and therefore applies to death row inmates across
the board.64

                   4. Right to Appointed Experts

       Relying on and extending its holdings in Ross and Douglas concerning the right to
appointed counsel on appeal from a criminal conviction, the Court in Ake v. Oklahoma,65
held that a criminal defendant is also entitled to “access to a competent psychiatrist who

59
     Id. at 615.
60
     Id. at 616.
61
   See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). While there is no constitutional
requirement of access to appointed counsel in post-conviction collateral attacks, it appears that
Georgia is the only state with a significant death row population that does not provide either
mandatory or discretionary appointment of counsel for indigent persons in capital post-
conviction proceedings.
62
     Id. at 556-57.
63
     492 U.S. 1 (1989).
64
   Id. at 10. Similarly, the Court has refused to apply the right to appointed counsel to appeals
from state-determined post-conviction, collateral attacks. Coleman v. Thompson, 501 U.S. 722
(1991).
65
     470 U.S. 68 (1985).




                                               20
will conduct an appropriate examination and assist in evaluation, preparation, and
presentation of the defense” after “demonstrat[ing] to the trial judge that his sanity at the
time of the offense is to be a significant factor at trial.”66 However, the Court also found
that denying a criminal defendant access to an investigator, a fingerprint expert, and a
ballistics expert under a state law predicating access to such expert assistance on a
finding of reasonableness was not unconstitutional.67


          5. Allocation of Indigent Defense Costs Between State and Local
Governments

        It appears that no federal court has ruled on the question of whether, in the absence
of a state statute directly on point, the primary responsibility for funding indigent defense
and litigation costs resides with the state or with county and city governments. Several
state courts have, however, decided the issue, relying either on constitutional principles
and the holding in Gideon or a “necessary implication from the [state] statutory
scheme.”68

        The Arkansas Supreme Court held, for example, that where a state statute and a
county ordinance, both of which imposed mandatory fee caps, were held unconstitutional,
“the state is responsible for payment of” fees and expenses associated with representing
an indigent criminal defendant.69 The decision relied in part on the federal constitutional
requirement that “states appoint counsel for indigent defendants.”70 Similarly, a New
York state court, in a mandatory preliminary injunction directing payment to attorneys
appointed to represent indigent litigants in family and criminal matters, concluded that,
although the City of New York is an indispensable party to the action because the state
delegates to the counties the task of formulating a plan to fund indigent representation, in
light of Gideon, “New York State bears the ultimate responsibility to provide counsel to
the indigent.”71

       By contrast, on appeal from a state court ruling “directing the state to pay
attorney’s fees for representation of both indigent children and parents in all [civil]
66
     Id. at 83.
67
     Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1 (1985).
68
     State v. Rush, 217 A.2d 441, 449 (1966).
69
     State v. Post, 845 S.W.2d 487, 492 (Ark. 1993).
70
     Id. at 492 (citing Gideon).
71
     N.Y. County Lawyers’ Ass’n v. New York, 745 N.Y.S.2d 376, 381 (Sup. Ct. 2002).




                                                21
juvenile dependency proceedings,”72 the Florida Supreme Court held “that when counsel
is constitutionally required, the county, rather than the state, must compensate appointed
counsel.”73 In that case, however, the court based its decision on an inference drawn from
a state statute providing that “counties shall provide . . . personnel necessary to operate
the circuit and county courts.”74 Similarly, the Michigan Supreme Court has held that the
“financial burden of providing” counsel to indigent parents in the course of a parental
rights termination proceeding “is allocated to the county as the unit of government which
funds the tribunal in which the indigent parent is called upon to defend his right to the
continued custody of his child.”75 The court construed a state statute, providing that all
expenses associated with probate court jurisdiction over neglected children be paid by the
county, to include the cost of indigent representation.76 In New Jersey, because “[t]he
county is a subdivision of the State, constituted to perform certain functions of State
government, . . . and among them . . . the prosecution of criminal causes . . . [,] [i]t is
generally held that the county is liable for the expenses involved.”77 Reasoning that a
state statute providing that the county pay “‘[a]ll expenses incurred by the prosecutor . . .
in the detection, arrest, indictment and conviction of offenders against the laws’” includes
the necessary expense of providing court-appointed counsel to indigent criminal
defendants, the New Jersey Supreme Court held that the county is responsible for such
costs.78

          B. Georgia Law on Indigent Defense

      In addition to the right to counsel guaranteed by the Sixth Amendment to the
United States Constitution, the Georgia Constitution provides that “[e]very person
charged with an offense against the laws of this state shall have the privilege and benefit
of counsel.”79 In responding to the mandate of Gideon v. Wainwright,80 the Georgia

72
     In the Interest of D.B. and D.S., 385 So.2d 83, 87 (Fla. 1980).
73
     Id. at 87.
74
   Id. at 92-93. For criminal cases, state legislation expressly required counties to pay the fees.
Id. at 93.
75
     Reist v. Bay County Circuit Judge, 241 N.W.2d 55, 66 (Mich. 1976).
76
     Id. at 66.
77
     State v. Rush, 217 A.2d 441, 449 (N.J. 1966).
78
     Id. at 449.
79
  GA. CONST., Art. I, §1, para. XIV. As has been noted elsewhere, “[e]very Georgia Constitution
since 1798 has declared that no one in this State should ever be prosecuted without the ‘privilege
and benefit of counsel.’” MEARS, A BRIEF HISTORY OF THE GEORGIA INDIGENT DEFENSE



                                                 22
General Assembly enacted the Georgia Criminal Justice Act in 1968 which directs the
state’s 159 counties and their courts to appoint and compensate attorneys for indigent
criminal defendants.81 The other major piece of legislation dealing with indigent defense
came in 1979 with the establishment of the Georgia Indigent Defense Council as a
separate agency within the judicial branch of state government.82 The goal of the GIDC,
according to the statute,83 is to “administer [state and federal] funds ... to support local
indigent defense programs” as well as to recommend to the Georgia Supreme Court
“uniform guidelines...within which local indigent defense programs...shall operate.” It is
also authorized to provide training, along with technical and research support, to
attorneys representing indigent criminal defendants. The Council is made up of 15
persons appointed by the Georgia Supreme Court to a four-year term.84 The Council has

COUNCIL 1 (2nd ed. 1998).
80
     372 U.S. 335 (1963).
81
  Georgia Laws 1968, p. 999. This is currently codified at O.C.G.A. §17-12-1, et. seq. Section
3 of the Act law mandates that the courts of each county “provide for the representation of
indigent persons in criminal proceedings” through either “[a]n arrangement whereby a judge...
will assign attorneys on an equitable basis through a systematic, coordinated defender plan” or
“[a]n arrangement whereby a non-profit legal aid agency or agencies will be assigned to provide
the representation” or a combination of these two systems. O.C.G.A. §17-12-4. The Act also
authorizes the use of a “non-profit legal aid agency” to provide criminal defense services for
indigents, O.C.G.A. §17-12-6, and also authorizes superior courts in cooperation with the county
governing authority to establish public defender offices. O.C.G.A.§17-12-7. Under §10(a), the
county governing authority is directed to “include in its annual budget for the operations of the
courts in such county an additional amount to finance the costs and expenses necessary for the
implementation” of the indigent criminal defense plan required by the Act. O.C.G.A. §17-12-13.
Under §4, the county governing authority is given the power to establish fee limits and limits on
the amount spent for investigation, but the court is given the power “in extraordinary
circumstances” to “approve the payment of such additional compensation in excess of the
limits...as the trial court may determine...to be necessary to provide for compensation for
protracted representation.” O.C.G.A. §17-12-5.
82
   Georgia Laws 1979, p. 367. The Georgia Indigent Defense Act is currently codified at
O.C.G.A. §17-12-30 et seq. Although §2 of the Act announces the “policy of this state to
provide the constitutional guarantees of the right to counsel and equal access to the courts to all
its citizens in criminal cases and to provide...[t]hat the state be responsible for funding the
indigent defense system established in this article,” O.C.G.A. §17-12-31(10), the State currently
funds approximately 11.6% of the cost of indigent defense within the state. See Spangenberg
Report at p. 12.
83
     O.C.G.A. §17-12-33.
84
  Under O.C.G.A. §17-12-32(b), one lawyer from each of the state’s ten judicial districts shall be
appointed, along with three nonlawyers from the state at large and one member of a



                                               23
recommended Guidelines for the operation of local indigent defense systems to the
Georgia Supreme Court, which has promulgated them.85        As will be detailed in this
Report, these guidelines continue to be violated due the failure of adequate funding and
appropriate organization of the indigent defense system.
        Under the Georgia Indigent Defense Act, funding for local indigent defense plans
at the county level is sought by the local tripartite committee86 from the Georgia Indigent
Defense Council. The statute outlines the requirements for any local indigent defense

“metropolitan county governing authority” and one member of “nonmetropolitan county
governing authority.” The current members of the GIDC are: Virgil Adams (3rd District); Burt
Baker (2nd District); David L. Cannon, Sr. (9th District); Flora Devine (7th District); Marin L.
Fierman (8th District); Jerry Griffin (Non-lawyer At-Large); Betty Hill (Non-metro governing
authority); Paul Holmes (Non-lawyer At-Large); Robert E. Minnear (Non-lawyer At-Large);
Bruce H. Morris (5th District); Judge John E. Morse, Jr. (1st District); Samuel S. Olens (Metro
governing authority); Edward D. Tolley (10th District); Judge Alvin T. Wong (4th District);
Gerald P. Word (6th District). The GIDC also has created an Advisory Committee which
currently has 11 members.
85
  The current Georgia Supreme Court Guidelines are attached as Appendix C. The Guidelines
are fairly comprehensive in coverage and would seem to provide the outlines of an adequate
indigent defense system. For example, appointment of counsel is required within 72 hours of
“arrest or detention. Counsel shall make contact with the person promptly after actual notice of
appointment.” Guideline §1.2. Program officials are directed to provide Miranda warnings and
application for indigent defense services within 72 hours of detention. Guideline §1.3. The
Guidelines provide a base set of standards to be used in the indigency determination with
permission granted to the local system to use standards providing greater access to counsel.
Guideline §1.5. Public defenders are protected against dismissal for anything short of “good
cause” as defined in the Guidelines. Guideline §2.3. Appointments of panel attorneys “shall be
made on an impartial and equitable basis” and “to ensure balanced workloads through a rotation
system....” Guideline §2.4. Performance standards are, under the guidelines, to be promulgated
by the local tripartite committee. Violation of such performance standards are “cause for either
admonishment, suspension or removal of the attorney from the panel.” Guideline §2.5.
Independence of counsel is assured, Guideline §2.8, competency of counsel is required,
Guidelines §§3.1, 3.2, and the “local committee and the program’s attorneys should prvent
caseloads, by reason of their excessive size, from interfering with the rendering of quality
representation or leading to the breach of professional obligations, using [ABA Standards].”
Guidelines §6.1 (which also includes precise recommendations as to appropriate maximum
caseloads).

86
  Under O.C.G.A. §17-12-37, the tripartite committee is made up of at least three people
appointed by the local governing authority, the superior court and the local bar association.
Equal representation for each of the appointing authorities is assured if the committee has more
than three members. Specifically excluded from eligibility for membership, under subsection (c)
are judges, prosecutors and public defenders. The committee, under the statute, shall meet at
least seminannually and elect its own chair. O.C.G.A. §17-12-38(e).




                                              24
plan.87 After funding is approved, it is the responsibility of the local tripartite committee
to “implement and manage the local program within the guidelines approved and
promulgated by the Supreme Court.”88

           C. History of Efforts at Indigent Defense Reform in Georgia

       The Board of Governors of the State Bar of Georgia, less than two years after
Gideon, formed a Special Committee on Assistance to Indigent Criminal Defendants.89
This committee was charged with the responsibility for investigating the feasibility of the
establishment of a statewide system to provide “adequate defense services to indigent
persons accused of crimes” and to “draft proposed legislation to provide a statewide
indigent defense system.”90 In June, 1965, the committee “submitted an exhaustive
report” including proposed legislation modeled on the American Law Institute’s Model
Indigent Defense Act to the Board of Governors which approved the proposed Defense of
Indigents Act.91 After hearings on the proposal conducted by a special committee of the
Georgia House of Representatives, the bill was introduced into the 1966 session of the
General Assembly, but was defeated.92 After the United States Supreme Court’s decision

87
 Under O.C.G.A. §17-12-38(c), the plan must comply with the Supreme Court guidelines and
must provide for:

           “(1) The reasonable independence of counsel;

           (2) Reasonable early entry by counsel into a case;

           (3) A procedure to determine whether or not persons seeking assistance are eligible as
           indigents;

           (4) A procedure for determining that attorneys representing indigents are competent
           in the practice of criminal law; and

           (5) A rate of compensation and schedule of allowable expenses to be paid for indigent
           defense services.”

88
     O.C.G.A. §17-12-38(b).
89
     This was done at a meeting in Columbus in November, 1964. MEARS , at p. 3.
90
     Id.
91
  Bondurant, The Challenge of Right to Counsel in Georgia, 3 GA. STATE BAR J. 157, 169
(1966).
92
     Id.




                                                 25
in Miranda in 1966, the State Bar committee and its Board of Governors (along with the
Executive Council of the Younger Lawyers Section) reiterated their endorsement of the
Defense of Indigents Act.93 The 1967 General Assembly, however, again failed to enact
the State Bar proposal.94

        In 1968, the Georgia Criminal Justice Act (described above), placing the
obligation for indigent defense on the counties, was enacted. Convinced that this
approach to indigent defense was constitutionally inadequate, the State Bar resumed its
efforts at reform in early 1972 with a “survey of the needs of indigent defendants in
criminal cases throughout the State.”95 At approximately the same time, the Executive
Council of the Younger Lawyers Section of the State Bar in 1973 unanimously passed a
resolution urging the Bar to “sponsor an independent nonprofit corporation to seek
funding, to coordinate, to upgrade and to expand the defenders’ services to the indigent in
Georgia.”96

       In 1973, a study of indigent defense in Georgia funded by the State Planning
Agency, the State Crime Commission and a grant from the federal Law Enforcement
Assistance Administration was conducted by the State Bar Criminal Justice Committee.
Among other conclusions, the Committee found a lack of uniformity in the application of
standards of indigency throughout the state, an inadequate amount of resources being
devoted to indigent defense and widely varying treatment of such issues as waiver of
counsel and the timing of the offer of counsel.97 The ensuing history was captured this
way by the Spangenberg Report:

           Despite this extensive effort to review and document problems, the General
           Assembly continued to rely on the Criminal Justice Act of 1968.... The State Bar
           was not discouraged by the lack of response by the state legislature. The Bar
           created a private, nonprofit organization called the Georgia Criminal Justice
           Council that would continue to pursue implementation of a statewide indigent
           defense system. Working at first with grants from the Department of Human
           Resources and State Crime Commission, the ... Council worked on developing a
93
     Id.
94
  It has been reported that this defeat was caused, at least in part, by “heavy negative lobbying
from district attorneys and superior court judges from across the state.” MEARS, at p. 5.
95
     MEARS at p. 8.
96
     Id.
97
  State Bar of Georgia, Survey of Indigent Defense Needs in the State of Georgia, Nov. 30, 1973,
at p. 23. The Spangenberg Report notes that ‘[i]t is striking how similar the findings in that 1973
study are to findings from our study in 2002.” Spangenberg Report at p. 10.




                                               26
          framework for a statewide delivery system as well as a plan for funding such a
          system. Eventually ... the agency ... became a quasi-state agency whose members
          were nominated by the State Bar and confirmed by the Georgia Judicial Council.
          The entity was to administer state and federal grants to assist counties and judicial
          circuits in carrying out the obligation of providing effective assistance of counsel
          to indigent defendants....98

       In 1974, the State Crime Commission, “in response to national demands for
programs to defend the poor, also initiated its own comprehensive statewide study of the
indigent defense efforts by counties in Georgia.”99 The Commission identified lack of
funding, lack of uniformity in practices and a critical shortage of lawyers in many
counties as serious problems and, therefore, endorsed the call for a statewide system of
indigent defense underwritten by state tax dollars.

       In 1979, the General Assembly created the Georgia Indigent Defense Council.
After several years in which it administered grants from the state and the federal Law
Enforcement Assistance Administration, the GIDC became inactive for lack of funding.
It was funded again in 1989 and has been in existence since then. Its operations are more
fully detailed later on in this Report.100

       As frustration concerning the status of indigent defense in the state has grown in
recent years,101 plaintiffs in both federal and state courts have asserted that various aspects

98
  Spangenberg Report, at p. 11. The Council was operated as part of the Georgia Indigent Legal
Services Corporation, the predecessor to Georgia Legal Services. MEARS, at p. 13.
99
  MEARS, at p. 13. This study was mandated by the National Advisory Commission on Criminal
Justice Standards and Goals.
100
      See nn. 107 through 121 , infra, and accompanying text.
101
   Actually, the litigation described in the text at this point was pre-dated by litigation originally
filed as an original mandamus action in the Georgia Supreme Court as Holbrook v. Georgia in
November, 1985. The lawsuit, filed at a time when the State was providing absolutely no
funding for indigent defense, alleged a “statewide systemic failure to provide constitutionally
adequate criminal defense services” to indigent defendants and that these failings undermined
“the integrity and finality of criminal judgements in Georgia.” MEARS, at p. 45. The lawsuit
alleged that the State’s delegation of the operation and funding of indigent defense services to
the counties constituted an abandonment of Georgia’s constitutional obligations and asserted that
“[i]ndigent criminal defense services function without regard for, and in violation of, accepted
minimum standards of training, workload and resources....” Id. at p. 49. The Georgia Supreme
Court quickly dismissed the action. Subsequently, a similar class action (filed on behalf of
indigent defendants and attorneys claiming inadequate funding was preventing them from
providing effective counsel to indigents) was filed in Federal District Court for the Northern
District of Georgia. The dismissal of this case, Luckey v. Harris, on abstention grounds was



                                                27
of indigent criminal defense are legally inadequate. At this point, this litigation and
reportedly contemplated litigation is summarized. In Stinson v. Fulton County Board of
Commissioners, Civil Action No. 1:94-CV-0240 (N.D. Ga..), plaintiffs sought declaratory
and injunctive relief against Fulton County to eliminate the long delays for persons
suspected of committing felony offenses in Fulton County between the time their cases
were bound over to the Superior Court of Fulton County and they were transported to the
Fulton County Jail and the time they were able to consult with a lawyer. The delays in
providing counsel were alleged to amount to a prejudicial denial of the right to counsel
guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
Prior to the filing of this case, persons who were bound over to the Fulton County Jail
could not expect to see an attorney until and unless they were actually indicted, often
months after being bound over to the Fulton County Jail. A settlement of the lawsuit
resulted in an increase of the staff and responsibilities of Fulton Pretrial Services in order
to facilitate prompt contact with indigent persons bound over to on felony charges, a
timely pretrial release assessment, and appointment of the Fulton County Public Defender
to represent qualified arrestees. The Settlement Agreement requires the Fulton County
Public Defender to make contact with the arrestee within forty-eight (48) hours after
appointment by Pretrial Services.

        In Parks et al. v. Fennessy et al., Civil Action No.1:96-CV-182-3 (M.D. Ga.), the
plaintiffs sought declaratory and injunctive relief against the State Court of Sumter
County for failing to inform or advise indigent persons arraigned on misdemeanor
charges of the right to counsel guaranteed by the Sixth and Fourteenth Amendments to
the United States Constitution. Persons who were formally charged with misdemeanors in
the State Court of Sumter County were never informed upon arraignment that they had a
right to counsel, and that if they could not afford counsel they were entitled to appointed
counsel at no cost. Additionally, it was alleged that the State Court failed to establish, for
indigent persons who entered guilty pleas without counsel, that they had knowingly and
intelligently waived the right to counsel after being advised of the dangers and
disadvantages of self-representation at critical stages of the proceedings. The Consent
Decree entered in Parks requires the Court to clearly advise indigent persons accused of
misdemeanors of their right to counsel and, where defendants proceed without the
assistance of counsel, requires the Court to establish that the right to counsel was
knowingly and intelligently waived after full advisement of the dangers and
disadvantages of self-representation during critical stages of the proceedings.

       In Bowling et al. v. Lee et al., Civil Action No. 01-V-802, (Sup. Ct. for Coweta
County), plaintiffs seek declaratory, injunctive, and mandamus relief to remedy a county
indigent defense program based on the contract defender model. In Coweta County, two


eventually affirmed by the United States Eleventh Circuit Court of Appeals. Luckey v. Miller,
976 F. 2nd 673 (11th Cir. 1992).




                                             28
contract defenders handled the entire caseload while maintaining private practices.
Because of alleged mismanagement and excessive caseloads, plaintiffs asserted that
indigent persons accused of felonies in the Superior Court of Coweta County routinely
remained between three to eight months in the Coweta County Jail before ever seeing a
lawyer. Consequently, it was asserted that defendants were effectively denied the right to
have and be represented by counsel at a preindictment commitment hearing and
frequently were never afforded an opportunity to establish the basis for preindictment
recognizance or release on bond.

       Also, it was alleged that judicial pressure was placed on unrepresented indigent
defendants to negotiate and resolve their cases with prosecutors without ever having been
advised of the right to counsel, of the availability of appointed counsel for indigent
persons, or the dangers and disadvantages of self-representation during critical stages of
the proceedings. See Faretta v. California, 422 U.S. 806, 835 (1975); Clark v. Zant, 247
Ga. 194, 195, 275 S.E.2d 49, 50 (1981); Ledford v. State, 247 Ga.App. 885, 545 S.E.2d
396 (2001). This resulted in more than half of all persons accused of felonies in Coweta
County entering guilty pleas without having the opportunity to consult with a lawyer.

       Since the filing of the lawsuit, the county’s two contract defenders have been
dismissed. The County has created a Public Defender Office, its first ever, which is
staffed by a Chief Public Defender and two assistant public defenders. The office has two
support staffers and investigative assistance. In addition, to ensure that indigent
defendants do not languish in the Coweta County Jail, the County created the position of
an Indigent Defense Administrator, whose job it is to monitor arrestees, assess indigency,
and appoint the Public Defender in a timely manner. It has been reported that substantial
savings in costs of incarceration have been realized by the county. The Commission has
been informed that an Atlanta law firm has agreed to represent individual defendants who
have been subject to the practices challenged in the Coweta County lawsuit. Several of
these individual habeas corpus actions are working themselves through the Superior
Courts of the State.

        In Foster et al. v. Fulton County et al., Civil Action No.1:99-CV-900 (N.D. Ga.),
plaintiffs originally sought injunctive relief to address the absence of procedures to
address and provide treatment and care for the growing population of HIV-positive
inmates in the Fulton County Jail. A Settlement Agreement entered into by the parties
required Fulton County to take certain steps to improve health care for HIV-positive
inmates, as well as to reduce overcrowding at the jail. In April 2002 , when it was
apparent that overcrowding at the Jail persisted, the District Court ordered the County
and the Plaintiffs to identify other means to reduce overcrowding. On the basis of
evidence presented at a hearing in May regarding the failure of the State Court of Fulton
County and the municipal courts feeding the State Court of Fulton County to timely
provide counsel and the failure of those courts to provide an early, meaningful
opportunity for persons arrested for minor misdemeanor charges to consult with counsel



                                          29
and resolve their cases, the District Court ordered, on July12, 2002, Fulton County to
make counsel available to all persons arrested on misdemeanor charges within 72 hours
of arrest and to provide within 72 hours of arrest an “All Purpose Hearing” where
defendants could resolve their cases by entering a plea, or receive an individualized bond
hearing if they desired to go to trial. The district court also ordered Fulton County to meet
with the municipalities within Fulton County to better coordinate the handling of
arrestees between the municipal courts and the Magistrate and State Courts within Fulton
County. A subsequent action, Smith et al. v. Fulton County et al., Civil Action No.
1:02-CV-2446 (N.D. Ga.) sought declaratory and injunctive relief against
Fulton County and all the municipalities within Fulton County to continue making
comprehensive changes to the indigent defense system in Fulton County. Smith joined
the municipalities --which were not parties to Foster -- and seeks essentially the same
relief as that ordered in the Foster order.

       The Commission is informed that several counties within the State are currently
considering filing a suit similar to the Quitman County suit in Mississippi. Several years
ago, Quitman County, a very poor county in Mississippi, filed suit against the State of
Mississippi for the State's failure to adequately fund the provision of legal representation
to indigent persons accused of crimes, as required by the Sixth and Fourteenth
Amendments and their Mississippi constitutional and statutory counterparts. Last year,
the Supreme Court of Mississippi ruled that such a suit by a county against the State was
entirely appropriate and permitted the County to pursue its claims in the trial court. See
State of Mississippi v. Quitman County, 807 So.2d 401 (2001).

        While not in the form of litigation seeking systemic change, 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 Heath v. State,102 the defendant appealed the denial of his motion to withdraw
a guilty plea to three counts of serious injury by vehicle.103 The basis of his motion was
ineffective assistance of counsel. Finding that “the assistance provided by [defense
counsel] was so deficient that it effectively equaled no assistance at all,” the Court of
Appeals reversed the refusal to permit a withdrawal of the guilty plea. In detailing the
actions of the defendant’s attorney, the appellate court noted: 1) he advised defendant that
the sentence was likely to be “at the lower end” of the sentence recommendation by the
district attorney of 4 to 15 years104; 2) he failed to interview or contact a witness whose

102
      2002 Ga. App. LEXIS 1525 (November 26, 2002).
103
   The plea was negotiated. The original charge included 15 counts of serious injury by vehicle,
two counts of driving under the influence of alcohol and one count of reckless driving.
104
   The actual sentence was 15 years in confinement and 15 years of probation. The court’s
sentence followed the defendant’s admission that “this was his fifth DUI conviction.”




                                             30
name he had been provided who might have actually been driving the vehicle at the time
of the collision at issue;105 3) after failing to investigate the possibility that his client was
not driving the vehicle at the time of the collision, defense counsel argued to the court
that his client was driving; 4) he testified at the plea withdrawal hearing that he “could
not recall the elements of the offense of serious injury by vehicle;” 5) he testified that he
had done no research on the statutory definition of “serious;” 6) he did not confer with his
client at all during the 13 months between arraignment and the entry of the plea. The
appellate court concluded that defense counsel “did absolutely nothing meaningful on his
client’s behalf, thereby denying Heath his Sixth Amendment right to counsel altogether.”

       While not reflecting attempts at systemic change, several Atlanta law firms
recently have responded to publicity about the critical state of indigent defense in
Georgia. Moved by the burdens shouldered by Drew Powell, the Public Defender in the
Mountain Judicial Circuit, one major Atlanta law firm has organized a pro bono program
in which associates and partners assist Mr. Powell by representing public defender clients
at preindictment commitment hearings and in pretrial bond reduction proceedings. This
assistance has helped free up some of Mr. Powell's time to spend representing his clients
in Superior Court.106 Also, in response to publicity regarding the difficulties experienced
by indigent persons accused of misdemeanors in the State Court experience, another
Atlanta law firm has agreed to set up a pro bono project assisting lawyers working for the
State Court Division of the Fulton County Conflict Defender to provide representation to
indigent defendants appearing in the State Court of Fulton County. Paul Hastings has also
agreed to act as a clearinghouse for other firms interested in providing the same or
similar assistance.


       D. Current State of Criminal Indigent Defense in Georgia

              1. Georgia Indigent Defense Council

      In 1979, the Georgia Indigent Defense Council was established as a separate
agency within the judicial branch of the government.107 Its legislative charter includes
105
   The defendant claimed to have no memory of the incident. The defendant’s niece “testified
that when she telephoned [defense counsel] to report the existence of the witness, ‘he told me
that he had so many cases on his load, that if he looked into every nook and cranny that there
was to this case, that he would never get anything done, and that my uncle was nothing but a
drunk, ... and that his only option ... was to say that he was guilty.’”
106
   See Rankin, Premier Law Firm Defends Indigents; Lawyers Help with Case
Overload, ATL. JOURNAL-CONST., August 31, 2002, p. 1H..
107
  Ga. Laws 1979, p. 367, §4. The legislation establishing the GIDC was entitled “The Georgia
Indigent Defense Act.”



                                              31
responsibility for administration of state and federal funds to support local programs, to
recommend uniform guidelines within which local programs should operate and to
provide training, technical assistance and support to the local programs.108 While work on
drafting guidelines began immediately after the creation of the GIDC, the Spangenberg
Report asserts that these guidelines “encountered protracted resistance over familiar
territory: loss of local control replaced by a ‘central bureaucratic agency with dictatorial
power and absolute control over indigent defense in Georgia.’” 109 Indeed, the guidelines
were not officially approved until 1989.110

        The GIDC has not had a smooth ride since its establishment. In 1981, with the
demise of the Law Enforcement Assistance Administration at the federal level and the
loss of all state funding, the GIDC became an inactive agency and shut down its office in
Atlanta. In 1988, the Council of Superior Court Judges changed its historic position
against state funding for indigent defense and adopted a position of “publicly supporting
funding of the 1979 Georgia Indigent Defense Act.”111 At least in part because of this
change of position, the 1989 General Assembly appropriated $1 million to the operation
of indigent defense, designating 10% for the operation of the central office and the rest
for the operation of local indigent defense programs.112 The current level of state funding
which is administered by the GIDC is detailed in the Spangenberg Report at Table 3-1.113

        In addition to administering grant funds to the counties for the operation of local
indigent defense programs, the GIDC has several divisions which perform other
functions. In 1992, the General Assembly created the Multi-County Public Defender to
“undertake the defense of all indigent persons charged with a capital felony for which the
death penalty is being sought in any court....”114 The division also provides training and
assistance to attorneys appointed in capital cases and serves as co-counsel in the trial and
direct appeal of death penalty cases. “In calendar year 2001, the Multi-County Public

108
      O.C.G.A. §17-12-33.
109
  Spangenberg Report at p. 11-12 (quoting a memorandum from Judge George A. Horkan to
Judge Cloud Morgan which appeared in MEARS, at p. 35).
110
  According to MEARS, the Georgia Supreme Court approved the guidelines on October 3,
1989, but inadvertently failed to enter an order to that effect until June 4, 1992. MEARS, at p. 43.
111
      MEARS, at p. 57.
112
      Id. at p. 60.
113
   The most recent figures indicate the annual expenditure by the state for indigent defense, both
at the county and state level, was $52,968,892. Spangenberg Report, at p.14, Table 3-1.
114
      O.C.G.A. § 17-12-91.




                                                32
Defender provided direct representation or consultative services in 84 cases in 34
different counties.”115 The Mental Health Advocacy Division is staffed by three attorneys,
a paralegal and two social workers and monitors all Georgia cases in which the defendant
has been found not guilty by reason of insanity, represents such defendants after
conviction in connection with treatment and also works with judicial and mental health
professionals in cases where defendants have been found incompetent to stand trial.116
The GIDC also operates a small Juvenile Advocacy division, an Appellate Division and a
Professional Education Division.117

        Participants in the criminal justice system who have interaction with the GIDC’s
special divisions offered “universal praise” to the Spangenberg Group concerning the
quality of the assistance provided.118 By contrast, the Spangenberg Report found that the
GIDC, despite what might be seen as its statutory mandate, has not been an effective
statewide advocate for the cause of indigent defense in the State and has not been able to
monitor compliance with the Supreme Court’s Guidelines on indigent defense. The
Spangenberg Report concludes that “GIDC should have the power to assist programs that
are not in compliance (with Supreme Court Guidelines) and, where necessary, bring the
appropriate pressure to remedy programs that fail to meet Supreme Court guidelines.”119
It would appear that the lack of clout derives from the minimal state funding provided by
the General Assembly with a locally-operated indigent defense system. Thus, county
officials have been reluctant to respond to requests from “the state” to change their
system when “the state” funds a very small portion of the indigent defense system.120
This could be seen as an unfunded mandate. From its perspective, the GIDC has been
very reluctant to withhold state funding for failure to comply with the Supreme Court
Guidelines121 because this often would result in taking money away from an already

115
  Spangenberg Report, at p. 17. The division has five attorneys, four mitigation
specialist/investigators, a mental health specialist, a clerk, a tracking/statistics worker and an
administrative assistant. Id.
116
      Id. at pp. 17-18.
117
      Brief discussions of these operations can be found in the Spangenberg Report at p. 18.
118
      Id. at p. 93.
119
      Id. at p. 82.
120
   “People in a number of counties told us they feel the application for state funds is overly
burdensome, given the relatively small percentage of funds for indigent defense provided
through the state grants.” Spangenberg Report, at p. 23.
121
  Current legislation requires that the county indigent defense plan shall be operated “within the
guidelines approved and promulgated by the Supreme Court.” O.C.G.A. §17-12-38(b). Supreme
Court Guideline §5.3 states: “The Council shall have the right to terminate any agreement for



                                                33
resource-starved system, thus insuring even less quality.

                 2. Tripartite Committees as Supervisors of County or Multi-County
Systems

        Georgia state law122 establishes a “local tripartite governing committee” which acts
for a county or combination of counties in establishing a “state funded local indigent
defense program.”123 The tripartite committee consists of equal representation from the
county governing authority, the superior court and the local bar association. The
members, none of whom can be “judges, prosecutors or public defenders,”124 are
appointed for three-year terms.125 After the funding decision is made by the Georgia
Indigent Defense Council, it is the responsibility of the tripartite committee to
“implement and manage” the program.126 The tripartite committee is directed to meet at
least semiannually.127

        While the Spangenberg Report states that the tripartite committee model for local
control of indigent defense “seems like a sound structure” for “local control and input
into indigent defense with state funding and standards,”128 it is apparent that there is wide
variability in the effectiveness of the tripartite committees in providing quality legal
representation to indigent criminal defendants. There has been no effective oversight of
the tripartite committees and many of the committees have failed to provide any

cause... when a local program fails to comply with the guidelines or fails to fulfill their [sic]
duties and obligations under the agreement.” An appeal to the Supreme Court from a de-funding
decision by the Council is provided.
122
      O.C.G.A.§17-12-37(b).
123
   Id. From the information detailed in this Report, it should be obvious that the term “state
funded...indigent defense program” is a term of art. The state, in fact, funds barely a tenth of
these “state funded” programs. Under the statute, the plan proposed by the tripartite committee
must comply with Supreme Court guidelines and must provide for: “independence of counsel;”
“reasonable early entry by counsel into a case;” a plan for the determination of indigency of
prospective clients; a plan for “determining that attorneys...are competent in the practice of
criminal law;” and a plan for compensation of attorneys. O.C.G.A. §17-12-38(c).
124
      O.C.G.A. §17-12-37(c).
125
      O.C.G.A. §17-12-37(e).
126
      O.C.G.A. §17-12-38(b).
127
      O.C.G.A. §17-12-38(e).
128
      Spangenberg Report, at p. 21.




                                              34
oversight of the local programs which, by statute, they are supposed to supervise. While
judges are statutorily barred from service on these committees, in one county visited by
the Spangenberg Group the committee was chaired by the Chief Judge of the Superior
Court.129 In a different county, the chief judge is not on the committee but several
interviewees reported that he is the “invisible hand” behind indigent defense policy in
that county.130

        Under both the statute and the Supreme Court guidelines,131 it is the responsibility
of the tripartite committee to observe and monitor the performance of indigent defense
attorneys, but most of the tripartite committees in the counties visited by the Spangenberg
Group “do not engage in effective monitoring” of the local indigent defense program.132
This is understandable in light of the fact that no resources are allocated to the hiring of
staff for the committee and the committee members themselves usually are unpaid
professionals who volunteer their time. In several counties, the administrator of the
indigent defense system serves on the committee,133 which raises a major question of
conflict of interest in that the committee is charged with reviewing the work of the
administrator. The Spangenberg Report also notes that a number of committees include
laypersons and reports complaints from a number of attorneys representing indigents of
the inappropriateness of laymen supervising their work. It is also clear that some of the
tripartite committees rarely, if ever, meet and others meet only to perform the ministerial
duties of reviewing (and often reducing) vouchers submitted by panel attorneys.

                      3. Delivery Systems

              There are three methods of delivering legal services to indigent criminal
defendants in Georgia. The systems operated by Georgia’s 159 counties each represent
the adoption of one or more of the following: 1) panel system; 2) contract system; and 3)
public defender system. Virtually all the counties have some combination of these
systems. Thus, for example, a county with a panel system in place for indigent adult
felony defendants may have contract attorneys representing indigent juveniles.134
Similarly, a county might choose to employ contract defenders in certain courts (drug
129
      Id.
130
      Id.
131
      See Supreme Court Guidelines §§3.1, 3.2.
132
      Id. at p. 22.
133
      Id.
134
      Indeed, this is the system currently being operated in Cobb County. Spangenberg Report, p.
27.




                                                 35
court, juvenile court) and for certain proceedings (probation revocation, bond hearings,
preliminary hearings and appeals) and use panel attorneys for all other courts in all other
proceedings.135 Many systems will include one primary method of delivery with a
different delivery system provided for in cases where, for example, the public defender
cannot handle the case of a particular defendant because of an actual or potential conflict
of interest.136

                         a. Panel Systems

              As of fiscal year 2001, a plurality of counties used systems in which an
attorney is appointed from a panel of attorneys. A total of 73 of the 152 counties
receiving GIDC state grant money137 were using panels as the primary delivery
mechanism of indigent criminal defense services.138 Beyond that, panels were used to
deal with conflict and overflow situations in a number of other counties which use
contract or public defender systems as primary delivery mechanisms.

               Lack of uniformity characterizes the panel systems in operation within the
state. The issue of composition of the panels provides an excellent illustration of this
lack of uniformity. Some counties provide for mandatory participation either by all or a
substantial subset of all local attorneys, regardless of their interest or experience in
criminal matters. Thus, e.g., in Hall and Dawson Counties, the panel is composed
essentially of all active lawyers in the county.139 In at least one other county (Lowndes),
all attorneys must serve a five-year term on the Superior Court panel and, beyond that, all
attorneys practicing criminal law and all those whose civil practice include court
appearances must remain on the panel.140 The Georgia Supreme Court has upheld

135
      This is the system in Bibb County. See id.
136
  This is the system employed in Fulton County, the state’s most populous county. A detailed
analysis of the Fulton County system is provided in the Spangenberg Report, at pp. 73-77.
137
   As noted in the Spangenberg Report, a major hurdle in making statements about the current
system of indigent criminal defense in our state is the lack of comprehensive, reliable data.
Thus, we only have current data about the format of indigent defense systems in the 152 counties
currently receiving state funds from the GIDC and even that information is based solely on self-
description on the funding application forms. “There are no data available on indigent defense
expenditure from counties that do not apply for grant funds [from the Georgia Indigent Defense
Counsel].” Spangenberg Report, at p. 13.
138
      Spangenberg Report at p. 28.
139
  According to the Spangenberg Report, some attorneys are exempted because of their
occupation (e.g., prosecutors) and all attorneys are rotated off the panel at the age of 65. Id.
140
      Id. Similar systems are reported in Bibb and Baldwin Counties, with participation in the latter



                                                   36
mandatory panel membership in a 1992 case in which it rejected a declaratory judgment
action brought by an attorney asserting that mandatory participation was unlawful and
unconstitutional.141 By contrast, listing on a panel for appointment in felony cases is
purely voluntary in a number of counties.142

               There is also a range of reported models in terms of qualifications,143
supervision,144 compensation,145 and method of appointment.146 Because of the variations
among panel systems, the quality of representation likewise varies. While some systems
clearly are providing very good representation of indigent criminal defendants, in other

county required for the first ten years of practice in the county.
141
    Sacandy v. Walther, 413 S.E. 2nd 727 (Ga. 1992)(rejecting attorney’s claim that appointment
to the panel violated separation of powers jurisprudence, court did hold that uncompensated
service as co-counsel was illegal under Georgia law and, thus, avoided dealing with a claim that
such mandated service violated the 13th Amendment to the UNITED STATES CONSTITUTION.
142
  Voluntary participation in panel programs for felony defendants is reported in Clayton, Cobb,
Chatham and Richmond Counties. Id. at p. 29.
143
   Cobb County requires that in order to be placed on one of the various lists (misdemeanor,
felony, capital murder, non-capital murder, direct appeal and juvenile), the attorney must have an
appropriate level of experience and criminal law training. Id. at p. 30. By contrast, in other
systems the only qualification for service on a panel is membership in the State Bar.
144
    While the Spangenberg Report identifies Lowndes County as having a relatively formal
system whereby the panel attorneys periodically report to the indigent defense coordinator the
status of their cases and return client visitation cards, The Spangenberg Group reported that
“[v]ery little monitoring of panel attorney performance is done” within the state and that only
rarely is a panel attorney removed from the list because of poor performance. Id. at p. 32. The
Lowndes program makes available a grievance procedure for attorneys who feel they were
wrongfully removed from the list. Id.
145
   Supreme Court Guideline §2.6 provides in part: “[a]ttorneys handling appointed cases shall
receive reasonable and adequate compensation for their labor, based on hourly rates and time
spent as documented in records submitted by the attorneys....” Despite a November, 1999
amendment to the guidelines which “eliminated suggested maximum per-case caps” which
previously had been mentioned by the Guidelines, The Spangenberg Group reports that caps are
routinely imposed in many systems, the amounts claimed in vouchers by panel attorneys are
often reduced without any explanation and flat fees are paid for certain types of service, such as a
felony plea or misdemeanor plea. “In some instances superior and juvenile court judges ask
attorneys to submit blank vouchers which the judges complete themselves.” Id. at p. 33.
146
  While sometimes the appointment is done by indigent defense administrators, in other
counties the appointment is often made the judge in the courtroom without any attempt to
provide for a rotation of appointments.




                                                37
systems judges report that they have to “coach” the less experienced panel attorneys,
assistant district attorneys describe indigent defense in their county as “not worth a
damn” and some defendants are not visited by their attorneys for lengthy periods of time.

                         b. Contract Attorneys

               The second most common system for provision of legal services to indigent
criminal defendants is the contract system under which an attorney or firm contracts to
undertake representation of all defendants (or all defendants in a particular category, such
as felony, juvenile, etc.) on a flat-fee basis. As of 2001, 59 of the 152 counties applying
for GIDC money utilized this system to provide the bulk of indigent criminal defense.147 It
appears that contract representation is relied upon most heavily by counties with smaller
populations. Nine of the 19 counties which were studied in the Spangenberg Report have
populations over 100,000. Of those 9 counties, only Cobb and Bibb utilize contract
attorneys. Cobb uses four contract defenders for indigent defense in juvenile court, while
Bibb has contracts for representation in drug court, preliminary hearings, appeals,
juvenile court and probation revocation.148 While only 2 of the largest 9 use contract
attorneys at all, 5 of the smallest 10 counties in the Spangenberg Report use contract
attorneys as the sole means of providing indigent defense.149

        A major perceived advantage of this system from the perspective of county
officials who underwrite the vast majority of the expenses of indigent criminal defense in
Georgia is that, as contrasted to a panel system, it provides much more predictability in
terms of expenditures and is easier to administer. Thus, in “Spalding County, a contract
system was adopted just over 10 years ago to replace a panel system. It was felt a
contract system would be easier to administer than a panel program and it would give the
county the benefit of knowing what its costs for indigent defense were going to be from
year to year.”150

       A contract defender system, however, carries with it significant risks of conflict of
interests between the attorney and his client. Because the fees received by the attorney

147
       See Spangenberg Report, at p. 34.
148
      Id. at p. 35.
149
      Id. at p. 5.
150
   Id. at p. 38. Another perspective on the reason why counties choose the contract system rather
than either a panel or a public defender system is provided by a contract defender in Ben Hill and
Wilcox counties. He was quoted in a recent news article as asserting that counties select the
contract system “because they want to pay as little as they have to.” Rankin, Defending the
Poor: Three Systems: Is One Superior?, ATL. JOURNAL-CONST., April 21, 2002, p. A21.




                                              38
are not tied to the number of clients represented or the amount of time devoted to the
representation, there can be seen to be disincentives built into such a system which might
push an attorney toward perfunctory representation of clients. This risk would be
heightened if the contract fee was expected to provide funds for investigators, transcripts,
expert witnesses, etc. Similarly, the inclusion of death penalty defense work, which is
almost by definition more time consuming and inevitably bears greater consequences to
the client, in an indigent defense contract would exacerbate the risks to the professional
representation of the defender’s non-capital clients.

       Because of these risks, the Supreme Court’s guidelines for the operation of
indigent defense are careful to impose significant constraints on what might otherwise be
perceived as the freedom of contract. Thus, the guidelines regarding contract indigent
defense provide:

       The contract should specify a maximum allowable caseload for each full-time
       attorney, or equivalent, who handles cases through the contract. Caseloads should
       allow each lawyer to give every client the time and effort necessary to provide
       effective representation....

       The contract shall provide that the Contractor may decline to represent clients at
       no penalty in the event that during the contract:

           (a) the caseload assigned to the Contractor exceeds the allowable caseloads
       specified or;
           (b) The Contractor is assigned more cases requiring an extraordinary amount
       of time and preparation than the Contractor can competently handle even with
       payment of extraordinary compensation or;
           (c) The cases assigned to the Contractor exceed any number that the contract
       specified or that the Contractor and Contracting Authority reasonably anticipated
       at the time the contract was concluded

       The contract shall avoid creating conflicts of interest between the Contractor or
       individual defense attorney and clients. Specifically:

              (a) expenses for investigations, expert witnesses, transcripts and other
              necessary services for the defense should not decrease the Contractor's
              income or compensation to attorneys and;
              (b) contracts should not, by their provisions or because of low fees or
              compensation to attorneys, induce an attorney to waive a client's rights for
              reasons not related to the client's best interest; and
              (c) contracts should not financially penalize the Contractor or individual
              attorneys for withdrawing from a case which poses a conflict of interest to
              the attorney.



                                           39
       The inclusion of capital felonies where the death penalty is sought as a portion of
the contract is prohibited.

GUIDELINES OF THE SUPREME COURT OF GEORGIA FOR THE OPERATION OF LOCAL
INDIGENT DEFENSE PROGRAMS §2.7151

        Assuming that enforcement of these rules would insure quality legal services
which would satisfy the requirements of all ethical, legal and constitutional mandates, the
Spangenberg Report identified a number of violations of these rules in the counties which
it studied. Thus, the contract in one county explicitly includes death penalty
representation in the felony contract, in another county the contract lawyer must pay any
conflict attorneys out of the contract fee and in another county the contracted law firm
conducts eligibility screening of clients. In addition, while it is not clear that this would
constitute a violation of the Supreme Court rules, a number of contracts omitted any
reference to maximum number of cases and even those which do provide such a cap
sometimes do not provide any automatic cutoff of further cases being added to the
contract defender’s caseload when the maximum is reached.152 Although precise figures
are unavailable, many contract attorneys are representing a very large number of
defendants each year, well in excess of appropriate caseloads.153

151
    It should also be noted that the Commentary to the American Bar Association Standards for
Criminal Justice Providing Defense Services, in recounting the history of contract defenders for
the provision of indigent criminal defense, noted that across the country the “desire for economy
in services all too often overrode constitutional obligations.” AMERICAN BAR ASSOCIATION
STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE SERVICES (3rd ed. 1992), Commentary
to Standard 5-3.1, at p. 46. The Commentary goes on to note several cases in which contract
systems were declared illegal and/or unconstitutional. See, e.g., State v. Smith, 681 P. 2nd 1374
(Ariz. 1984)( contract attorneys were so overworked, their services did not satisfy constitutional
standards); People v. Barboza, 627 P. 2nd 188 (Cal. 1981) (contract with county provides
disincentive to acknowledgment of conflicts of interest). Because of the risks involved in broad
use of contract systems, the Commentary makes clear its assumption that “contracts should not
be the primary provider, as they often are in practice.”Id. at p. 47.
152
  See generally Spangenberg Report, pp. 34-40. It should be noted that the ABA standards for
provision of defense services provides that “Contracts for services should include... allowable
workloads for individual attorneys, and measures to address excessive workloads....” AMERICAN
BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE SERVICES,
STANDARD 5-3.3(B)(v) (3rd ed. 1992).
153
   The only caseload limitation mentioned in the Supreme Court Guidelines applies, by its
terms, to full-time public defenders. Under §6.1, the following caseload is recommended per
year per attorney for public defenders: “150 felonies ... 300 misdemeanors...250 Juvenile
Offender cases...60 Juvenile dependency clients...250 Civil Commitment cases...25 Appeals....”
The Guideline makes clear that these numbers are “not intended to be an aggregate. Attorneys



                                              40
                         c. Public Defenders

       Twenty of the 152 counties receiving state funds utilize public defender offices.154
Four of the 19 counties examined in the Spangenberg Report operated such offices,
ranging from Habersham County, with a population of approximately 36,000, to Fulton
County, the largest county in the study and in the state.155 Obviously, these offices show
wide variation in size. For example, Habersham has two attorneys, an investigator and an
administrative assistant, while Fulton County’s office, with a budget of well over $8
million, employs 74 attorneys, 20 investigators, 17 administrators and a temporary social
worker.

        As with all systems, arrangements must be made for alternative sources of
indigent representation in situations where there is a conflict of interest preventing the
public defender from representing a client. Each county has its own system. Thus, in
Houston County a panel system administered by the indigent defense coordinator is
utilized in such situations. Likewise, a panel system is utilized in Habersham County and
in DeKalb County.156 Likely because of the size of the county and the enormous
caseload, Fulton County uses what might be described as a blend of a contract/public
defender system to handle cases in which the Public Defender is conflicted out of. “In
1996, the Fulton County Conflict Defender was incorporated as a not-for-profit criminal
defense organization. The program, which contracts with the county, represents indigent
defendants charged with felony offenses whose cases pose a conflict of interest for the
Fulton County Public Defender. Conflict defenders are also often assigned every third
case out of the Superior Court courtrooms, as well as to complex cases and cases in
which the judges see a need for social work involvement.”157

whose representation involves handling cases within different categories listed above should
adjust the caseload limitations proportionally.” Because contract attorneys do indigent defense
work only part-time, presumably the caseload limitations should be even lower than those
mentioned in the rule. Instead, it would appear that some contract attorneys actually exceed the
caseload limitations outlined for full-time defenders.
154
  It is obvious that there is at least one additional public defender office in the state because the
Fulton County Public Defender, which was one of the counties studied by the Spangenberg
Group, does not receive any GIDC funding.
155
   See Spangenberg Report, Table 1-1, p. 5. The material in the Spangenberg Report describing
the findings concerning the public defender offices studied appears on pp. 40-46.
156
   The Spangenberg Report asserts that, while officially there are 18 attorneys on the Habersham
County conflict panel list, an attorney in the county asserted that only five attorneys are “actively
taking appointments.” Spangenberg Report, at p. 43. Fee caps are used, following now-
withdrawn GIDC guidelines.
157
      Id. at p. 45. The Conflict Defender employs 13 attorneys, two paralegals, an office



                                                 41
        The Spangenberg Report details the generally positive evaluations of the various
public defender offices offered by participants in the criminal justice system in the four
public defender counties in the study. For example, the assistant public defenders in
Houston County “commented on the high level of supervision and mentoring that goes on
in their office” with one of them, a former Bibb County contract attorney, concluding that
a comparison of the two systems indicates that the public defender system presents
“distinct advantages both to him professionally and to the clients he represents.”158 The
Report goes on to quote him as noting that under a contract system “there is no
supervision or quality control.”159 Similarly, the DeKalb County Public Defender office,
which is headed by perhaps the most experienced public defender in the state who has
been in office since 1984, “was praised by numerous interviewees as one of the best
indigent defense programs in Georgia.”160 The office has adopted vertical representation
in which the same attorney represents a client from bail hearing through trial, has
obtained salary parity with district attorney lawyers and the Public Defender is regarded
as a “true advocate for indigent defense who works hard to implement important
changes.”161

        While it is clear that there are some problems with some of the offices,162 most of
the identified weaknesses of the offices derive not from the structure of the system, but
rather from a lack of resources. Thus, for example, there was criticism about
extraordinarily high caseloads for the attorneys, lack of time devoted to formal training
sessions, inadequate attention to the defense of those charged with misdemeanors (as
compared to felonies), limited numbers of qualified interpreters and investigators and, in
Fulton County, lack of formal supervision by administrative attorneys who are too busy
with their own heavy caseload to be able to provide any meaningful oversight of the work

administrator, a legal administrator, three investigators and two social workers. Id. As part of
the response to Foster v. Fulton County (discussed in Chapter 5 of the Spangenberg Report), the
office has hired five attorneys, two paralegals and a social worker to provide services to state
court misdemeanor defendants.
158
      Id. at p. 40.
159
      Id.
160
      Id. at p. 45.
161
      Id.
162
   For example, the DeKalb County office was criticized in the Spangenberg Report because the
Chief Public Defender is also designated as the indigent defense administrator. Id. This would
appear to mean that the Chief Public Defender is formally the supervisor of the work of the
office which he himself heads.




                                              42
of those assigned to them. Salary data provided by the GIDC indicates that the average
salary for Chief Public Defenders is “just over $70,000 while the current state salary for
District Attorneys is $97,326.”163 Apparently the latter figure does not include any salary
supplements paid to District Attorneys by counties. While it is possible that at least part
of the disparity may be explained by lesser seniority and/or qualifications of the public
defenders, it would appear that there is systematic inequality in pay between those on the
prosecution side of the criminal justice system and those who defend indigent defendants.


III. Findings

        Based upon the Commission’s numerous public hearings, a review of the
extensive documentation provided to the Commission by witnesses and other interested
parties and a careful examination of the work of the Spangenberg Group, the Commission
has concluded that the right to counsel guaranteed by both the federal and state
constitutions is not being provided for all of Georgia’s citizens.164 This failure is
attributable to: 1) a lack of adequate funding to provide effective assistance of counsel for
indigents facing state criminal charges; 2) a lack of a statewide system providing

163
      Id. at p. 46.
164
   While difficult problems of calculation insure that there are no precise figures available, there
can be no doubt that an overwhelming majority of criminal defendants in Georgia are
participants in the indigent defense system. Not only did numerous witnesses assert this in their
testimony before the Commission, but the national figure normally cited as the estimated
percentage of the criminal defendant population eligible for appointed counsel is 80%. See
Caroline W. Harlow, Defense Counsel in Criminal Cases, U.S. DEPARTMENT OF JUSTICE,
BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, NCJ 179023 (November, 2002). Thus,
problems with the indigent defense system have a significant impact on the fairness of the entire
criminal justice system.




                                               43
accountability and oversight to provide constitutionally adequate assistance of counsel for
indigent defendants. Specifically, the Commission finds:

THE STATE OF GEORGIA IS NOT PROVIDING ADEQUATE FUNDING TO FULFILL THE
CONSTITUTIONAL MANDATE THAT ALL CITIZENS HAVE EFFECTIVE ASSISTANCE OF
COUNSEL AVAILABLE WHEN CHARGED WITH A CRIME



          1. The constitutional obligation to provide adequate legal services for
          indigents charged with violating state criminal law is imposed on the State of
          Georgia and this duty should be funded adequately by the State.

          The current method of providing indigent defense services in Georgia imposes a
          large unfunded mandate by the State upon its counties. This results in a very
          uneven distribution of services, at least some of which is directly related to the
          disparity of wealth among Georgia’s 159 counties. For example, according to
          GIDC figures reported in the Spangenberg Report, a total of $.81 per resident was
          expended in Chattahoochee County on indigent defense, while the parallel figure
          for Cobb County was $5.20 and for Chatham County was $10.09. The Sixth
          Amendment of the United States Constitution and the comparable provision of the
          Georgia Constitution165 impose the obligation to provide effective assistance of
          counsel for indigents accused of violating state crimes on the state of Georgia,
          rather than the counties or the legal profession. Indeed, since 1979, Georgia
          legislation has provided that it is the “policy of this state to provide the
          constitutional guarantees of the right to counsel....to all its citizens in criminal
          cases and to provide...[t]hat the state be responsible for funding the indigent
          defense system established in this article.”166 In contrast to this bold assertion and
          acceptance of responsibility for funding indigent defense, the most recent figures
          indicate that the actual expenditures by the State equal a little over one-tenth of the
          total expenditure in the 152 Georgia counties which are the recipient of state
          funds.167 By contrast, 24 states in the United States provide total state funding of
          indigent defense services and the state governments of all of the comparison states
          (except Texas)168 underwrote a higher percentage of the cost of indigent defense
165
      GA. CONST., Art. I, §1, para. XIV.
166
      O.C.G.A. §17-12-31 (10) (emphasis added).
167
  Spangenberg Report, Table 6-2. Presumably, the other seven counties provide complete
funding for indigent defense, less any grants or donations from the federal government or private
entities.
168
  It should be noted that under 2001 legislation enacted in Texas, it is very likely that Georgia
will fall below that state in the percentage of state funding of the overall cost of indigent defense.



                                                44
       than the state of Georgia for the applicable reporting period.169

       It would be expected that after the State takes the burden of indigent defense
       funding off the counties, the counties would be able to use a portion of the
       resources previously spent for this for other governmental purposes, including, for
       example, enhancement of the state-funded indigent defense system in much the
       same way as local governments presently provide enhancement of the
       prosecutorial system. Of course, once adequacy of funding by the state is
       achieved, the counties might choose to use the saved money for purposes
       unrelated to the criminal justice system or for tax relief.


       2. There is not enough money currently allocated within Georgia to the
       provision of constitutionally-mandated indigent criminal defense.




169
   Spangenberg Report, Table 6-2. It should be noted that North Carolina and Alabama fund
the entire cost of indigent defense, Tennessee funds 87%, Kentucky 83.4% and Florida 80.2%.
See Id.




                                            45
          The Spangenberg Group, reporting on its findings in the 19 counties (representing
          approximately 45% of the population of our state) concluded that “[n]one of the
          19 counties...provide sufficient funds to assure quality representation to all
          indigent defendants.” 170. This conclusion is consistent with all the testimony
          which the Commission heard during its deliberations from participants in the
          criminal justice system, including prosecutors, defense counsel, indigent defense
          administrators, judges and others. This shortfall in funding presents itself in
          numerous ways. The most obvious illustration of underfunding is the low pay
          available for the payment of attorney fees. As noted in the Spangenberg Report
          (p. 91), some counties pay flat fees or impose stringent caps on payments to panel
          attorneys, such as limiting the fee for a plea to a misdemeanor to $265, regardless
          of how much time was expended by the attorney in interviewing the client, doing
          legal research or investigating the case. Likewise, some counties provide a simple
          flat fee for certain type of behavior, such as $300 for a guilty plea in a felony
          case.171

          Panel or contract attorneys who are paid barely enough to cover their overhead are
          forced, in the words of the Spangenberg Report, “to make tough choices on how
          they handle their appointed cases: many admit they do not provide the same level
          of service that they do to retained clients; to do so would work a financial hardship
          on them. Often what suffers are client visits, either in or out of jail, investigation,
          legal research and zealous motions practice. The low compensation works as a
          disincentive for many attorneys to do the same level of work on appointed cases as
          they would in retained cases.”172

          Underfunding also is apparent in the public defender system. As reported by the
          Georgia Indigent Defense Council in its 2001 Report to the Governor and the
          General Assembly (at pp. 7-8):

                 A continuing problem is the inequitable compensation between prosecutors
                 and defense attorneys. A [1999] survey ... revealed a striking 34% salary
                 gap between District Attorneys and Public Defenders. That gap has grown
                 as compensation for the state employed prosecutors has risen but that of
                 defenders has not. In one North Georgia county, locally employed
                 defenders are still receiving the same level of compensation awarded in

170
      Spangenberg Report at p. 91.
171
  The Spangenberg Report notes that many panel attorneys report that their vouchers for work
performed in the exercise of the legal defense of indigents are “routinely reduced without
explanation....” Spangenberg Report at p. 91.
172
      Spangenberg Report at pp. 91.




                                               46
                 1987, while the salaries of the state employed judges and prosecutors have
                 risen by more than 160% over the last fifteen years. Only one Georgia
                 county provides salary parity between the prosecutor’s office and the public
                 defender office.

                 The salary study also showed that Chief Assistant District Attorneys are
                 paid at rates more than five (5%) percent above those received by lead
                 defenders. These attorneys are expected to have similar skills and abilities,
                 yet we do not compensate them accordingly.

          To the extent that a disparity between compensation for prosecutors and public
          defenders exists, talented attorneys will be encouraged away from the defense
          function and high rates of turnover will be suffered in the offices of public
          defenders. Either way, the legal services provided to the individual defendant will
          suffer. In addition to failure to realistically compensate attorneys, other
          manifestations of the lack of funding are inappropriate limitations on or total
          refusal of any funding for interpreters, investigators and/or expert witnesses. It
          has also been reported that the underfunding of the indigent defense system is at
          least a partial, if not the primary, explanation for the failure of many county
          systems to provide any services to such populations as juveniles and those charged
          with misdemeanors.

          Not only does Georgia’s allocation of resources to indigent defense suffer in
          comparison to expenditures on behalf of prosecution, but Georgia suffers by
          comparison to other generally similarly-situated jurisdictions. Of the ten other
          comparable jurisdictions identified in the Spangenberg Report for which
          information on per capita expenditures was available, only Indiana and Texas
          spent less per capita than Georgia on indigent defense.173 It should be noted that
          Texas has recently added a state appropriation of $20 million for new grants to
          indigent defense, thus, undoubtedly raising its per capita expenditure beyond
          Georgia’s unless significantly more resources are allocated in Georgia. Such
          states as Florida, Tennessee, Alabama and North Carolina devote considerably
          more resources to indigent defense than Georgia.

          A sufficiently-funded and better-organized indigent defense system could help
          save public funds which are being expended in inefficient ways. While the amount
          of current expenditures which might be saved by an improved indigent defense
          system cannot be precisely quantified, a number of arrestees charged with non-
          violent crimes are being held in county jails. In October, 2002, well more than
          half (59%) of the inmates of county jails in the state were arrestees awaiting trial,

173
      Spangenberg Report, at Table 6-2.




                                              47
       according to the Department of Community Affairs. While many such persons
       would not be appropriate candidates for pre-trial diversion or release on bond
       (because of the nature of their alleged crimes or their own record), it is reasonable
       to expect that a large number of these arrestees are charged with non-violent
       crimes. With a well-functioning indigent defense system in place, cases would be
       disposed of more quickly, enabling counties to reduce the expense of pretrial
       incarceration. Many such defendants are awaiting the appointment of counsel and
       others are awaiting visits from already-appointed counsel. Under an indigent
       criminal defense system operating according to appropriate standards with
       appropriate accountability, many such arrestees would be able to be released
       pending trial. Indeed, the Commission has been informed that some arrestees are
       being held in pretrial detention in county jails for periods longer than the
       maximum sentence that could be imposed on them for commission if they were
       adjudged guilty as charged. An adequately-funded, well-organized indigent
       defense system which provided well-trained attorneys, adequately compensated
       for their time could help reduce needless continued incarceration of non-violent
       defendants before trial and the unfair incarceration of those who had “served” their
       maximum sentence before trial.

       Similarly, a well-functioning indigent defense system would help to reduce the
       costs incurred by the state in conducting retrials of defendants whose convictions
       are overturned for ineffective assistance of counsel. While this is also not
       quantified, needless expenditure is incurred for a second trial in some cases.
       Likewise, a well-trained and available criminal defense counsel assigned to
       represent an arrestee with mental health problems could assist in obtaining
       diagnosis and appropriate care.174

       The Commission does not suggest that any efficiencies which could be created by
       an appropriately-funded and well-organized indigent defense system could be
       expected to offset the amount of additional money which needs to be spent on the
       indigent defense system. But a better system of indigent defense would produce
       some offsetting savings of governmental expenditures which might be directed to
       more appropriate areas, such as mental health assistance, rather than the
       warehousing of pre-trial arrestees. While savings obtained from a better indigent
       defense system would largely be reductions in county expenditures on items such
       as county jails, transportation of prisoners from one county to another, etc., there
       are also savings which might be achieved in the provision of attorney services
       (reduction of retrials) which, under the Commission plan, would be savings of
       state tax dollars.
174
   The Spangenberg Report finds “indigent defendants with mental illness frequently spend long
periods of time detained pre-trial without proper screening or treatment.” Spangenberg Report,
at p. 91.




                                            48
       3. While precise estimates are not available at this time, the United States
       Supreme Court’s decision in Alabama v. Shelton175 has the potential for
       greatly expanding the burden on the already-inadequate Georgia system for
       the provision of indigent criminal defense.

       The Spangenberg Group has been engaged and is in the process of compiling a
       report on the impact of Shelton on Georgia’s indigent criminal defense system. Its
       final report is presently scheduled for completion sometime in the spring of 2003.
       The Supreme Court decision is not likely to have a significant impact on the
       Commission’s suggestions about structural reform of the Georgia system.
       However, with a larger population of defendants now covered by the state and
       federal constitutional mandate to provide defense services, the need for greater
       state funding of the indigent defense system could only be increased. It is also
       clear that Shelton will impose new and potentially costly obligations on municipal
       court systems in cases involving ordinance violations carrying the possibility of
       incarceration.


THE STATE OF GEORGIA LACKS A STATEWIDE SYSTEM OF ACCOUNTABILITY AND
OVERSIGHT TO PROVIDE CONSTITUTIONALLY ADEQUATE ASSISTANCE OF
COUNSEL FOR INDIGENT DEFENDANTS

       4. Georgia’s current fragmented system of county-operated and largely
       county-financed indigent defense services is failing to satisfy the state’s
       mandate under the federal and state constitutions to protect the rights of
       indigents accused of violation of the state criminal code.




175
   This 2002 United States Supreme Court case is discussed earlier in this Report at nn. 16-22
and accompanying text.




                                             49
           State law176 delegates to each of its 159 counties the responsibility for providing a
           system of indigent defense representation and responsibility for monitoring the
           provision of such services. The evidence received directly by the Commission
           along with a fair reading of the Spangenberg Report makes clear that this county-
           based system is failing to satisfy the state’s constitutional and legal obligations to
           the indigent defendant population. “In many counties we visited, there is little or
           no oversight of indigent defense attorney performance or qualifications. There is
           little or no enforcement of the [Supreme Court] Guidelines ... for the Operation of
           Local Indigent Defense Services.”177 While the Supreme Court Guidelines require
           the county-based tripartite committees to insure the competence of indigent
           defense attorneys (whether public defenders, panel attorneys or contract
           attorneys),178 the committee members in most of the counties visited by the
           Spangenberg Group “do not engage in effective monitoring of the contract, panel
           or public defender system in their county.”179

           The failure or inability of the country tripartite committees to exercise meaningful
           supervision over the county systems is reflected in the numerous examples
           reported by the Spangenberg Group of situations in which indigent defendants are
           not being given the assistance of counsel to which they are entitled under the law
           and, in some circumstances, under the state and federal constitutions. For example,
           the Supreme Court Guidelines [§1.2] state that “[c]ounsel shall be appointed for
           every eligible person in custody within 72 hours of arrest or detention. Counsel
           shall make contact with the person promptly after actual notice of appointment.”
           This routinely does not occur in many counties180 and the Report concludes that

176
      See O.C.G.A. §17-12-4; O.C.G.A. §17-12-37.
177
      Id. at p. 85.
178
   Supreme Court Guidelines §§3.1, 3.2. Section 3.1 covers the public defender and contract
lawyer and §3.2 deals with panel attorneys. The indicators of performance under both guidelines
are identical: (a) early entry into representation of indigents; (b) vigorous and independent
representation of the client; (c) participation in training activities and continuing legal education;
(d) effective and reasonable use of time and resources.
179
   Spangenberg Report, at p. 22. In many counties, the role of the tripartite committee is
confined to reviewing and approving vouchers and reviewing attorney grievances. Id. The
Report notes that it might well be unrealistic to expect the tripartite committee, which typically
lacks a staff other than the indigent defense administrator and often includes non-lawyers, to
exercise any meaningful supervision over the local indigent defense program.
180
   The Spangenberg Report asserts that in one county the jail staff has been told not to deliver
requests for counsel from prisoners to the contract attorneys more than once weekly.
Spangenberg Report at p. 47. In another county, “the earliest the defendants had met with their
court-appointed lawyer was approximately three weeks after arrest. Some defendants told us that



                                                50
            “early representation of indigent defendants is uneven throughout the state and
            problematic in many areas: sometimes there is no involvement of counsel until
            arraignment, and in some counties, we were told felony indictments can take up to
            one year.”181

            Beyond initial appointment, it is clear that very often “appointed attorneys do not
            meet with their clients enough” to satisfy their ethical, legal and constitutional
            obligations.182 Likewise, there is a “great deal of variance”183 across the state in the
            process of determining eligibility for indigent services. While some counties stick
            closely to federal poverty guidelines, others have “homegrown rules of thumb.”184
            The training requirements for indigent defense attorneys in the counties visited by
            the Spangenberg Group were “very minimal–and often non-existent.”185 While the
            Spangenberg Group concluded that it had insufficient information to reach any
            conclusions about the overall attorney workload in the counties it visited, it did
            report that attorneys in the four public defender offices “told us they felt their
            caseload was excessive.”186
counsel was met with for the first time seven to eight weeks after arrest.” Id. at p. 48.
181
   Id. at p. 48. “One DeKalb county conflict case attorney [said] that if a defendant is out on
bond, no appointment of counsel is made until indictment, which can take up to a year. The
attorney commented that when he is not appointed until arraignment, compared with a retained
case, he loses 6-12 months of investigation.” Id. at pp. 48-49.
182
   Spangenberg Report, at p. 56. This conclusion was offered to the Spangenberg Group by
“attorneys, judges, jail staff and inmates.” Id. In addition to the fact that this obligation is not
being enforced by a meaningful system of oversight, the absence of jails and the overcrowding of
others partially contribute to this problem. See id.
183
      Spangenberg Report, at p. 59.
184
      Id.
185
   Id. at p. 60. This failure of training is not due to a lack of opportunities. The GIDC offers
“dozens of low-cost criminal law training sessions in Atlanta and in other locations around the
state each year. Attorneys who participate...praised them. However, GIDC reports that overall
participation is low; it has had to cancel some sessions scheduled outside of Atlanta due to too
few participants.” Id. at p. 61. In 2001, the Professional Education Division of the GIDC
sponsored over 60 seminars. GEORGIA INDIGENT DEFENSE COUNSEL: 2001 ANNUAL REPORT at p.
54. According to the GIDC, it is the second largest provider of continuing legal education in the
state. Id. at p. 53. The Division also publishes a number of books and pamphlets aimed at the
practitioner of criminal defense law, with titles ranging from “The Defense Attorney’s Ethical
Response to Ineffective Assistance of Counsel Claims” to a “Search and Seizure Manual” to
“The Effective Use of Objections During a Criminal Trial.” Id. at p. 57.
186
      Spangenberg Report at p. 66.



                                                  51
       5. There is no effective state-wide structure in place designed to monitor and
       enforce compliance with existing Georgia Supreme Court rules governing the
       operation of local indigent defense programs.

       The Supreme Court Guidelines, which appear as Appendix C, appear to be a well-
       constructed set of rules designed to insure quality indigent defense services.
       Unfortunately, though, the failure of many counties to exercise oversight over
       their local systems is exacerbated by the inability of the Georgia Indigent Defense
       Council to monitor the performance of the counties. This is not attributable to any
       lack of good intentions or lack of competence on the part of the GIDC or its staff.
       Effective supervision by the state is virtually impossible because the GIDC is
       underfunded and thus understaffed to engage in any meaningful monitoring of the
       local system, there are 159 different systems, the size of the state makes personal
       supervision and visitation difficult, and, finally and perhaps most importantly, the
       state contributes barely 10% of the funding for indigent defense. The combination
       of these factors renders the GIDC unable to enforce rules187 designed to provide an
       efficient, constitutionally-acceptable system of indigent defense services.

       6. The criminal defense function must be independent. In order to fully
       establish the appropriate independence, defense counsel must have
       responsibility for case by case administration, without depriving judges of
       their inherent right and obligation to insure that courtroom proceedings
       comply with the mandates imposed by fundamental law, statutes and the
       rules of professional responsibility. Similarly, independence from the
       executive function at the local level requires funding of indigent defense
       services at the state level.

       Because of the severe underfunding and fragmented organizational structure of the
       indigent defense system, it is not uncommon for judges to have a major influence
       on the type of indigent defense system used in their county. Judges often

187
    Supreme Court Guideline 5.3 gives the GIDC the power to “terminate any agreement [with a
local indigent defense program] when a local program fails to comply with the guidelines or fails
to fulfill their [sic] duties and obligations under the agreement.” The Spangenberg Report notes,
however, that the GIDC “has not turned down any county that applies for funds [and] does not
de-fund counties it finds are not providing adequate indigent services.” Spangenberg Report, at
p. 25. The refusal to withdraw funds is attributed by the Report to the hostile reactions triggered
by occasional letters by the GIDC to local programs calling “attention to what [the GIDC]
perceives as inadequate performance,” the fear of political fallout from the General Assembly
and local judges, and the commitment of the GIDC to the improvement of indigent defense and
its fear that removal of funding will not improve a poorly-performing system but instead
exacerbate the already-existing problems. Id.




                                               52
          participate in the appointment of attorneys in individual cases, in the review of
          vouchers submitted by panel attorneys and in the determination of how much to
          pay such attorneys in an individual case. Judges also often make the sole
          determination of whether the defendant will be permitted to employ an expert
          witness. The Spangenberg Report details instances of judges serving on the
          tripartite committees which are charged with the day to day operation of the local
          indigent defense system. All of these behaviors, while undoubtedly derived from
          a commitment and duty to assure that a constitutionally adequate defense is
          provided for indigents, nevertheless has the potential for unfairness to the
          defendants and attorneys or at least the appearance of unfairness. In a number of
          instances court-appointed and contract attorneys “expressed concern that if they
          were viewed by some judges as zealous advocates—e.g., they filed several
          motions in one case or demanded trials—they ran the risk of being removed from
          the ad hoc counsel appointment list or denied a future contract.”188 Whether or not
          there is such a risk in fact (and the Commission has not been informed of any
          situation in which an appointment was denied or a contract terminated for such
          reasons), the mere fact that some attorneys (and their indigent clients) believe that
          there is a risk provides cause for concern.

          Independence from the local governing body is also extremely important. In a
          state where the county governing body is elected, there is a tremendous temptation
          to limit expenditures on indigent defense to politically acceptable levels rather
          than constitutionally required levels. As numerous witnesses before the
          Commission testified, the cause of indigent defense is not one which is especially
          popular among the voters of Georgia. Several witnesses informed the Commission
          that in their county, the judge or judges had to intervene with the county
          commissioners on behalf of funding for indigent defense. Funding for
          constitutionally-mandated indigent defense should not be subject to competition
          for the expenditure of local dollars for schools and other similar items.

          7. A public defender system under which those providing indigent defense
          services are full-time employees of the state, subject to direct supervision and
          mentoring of senior lawyers with experience and interest in criminal defense
          work, is the delivery system most likely to afford effective representation to
          those entitled to it under legal and constitutional mandates.

          While panel systems make supervision and mentoring more difficult than a public
          defender system, such a system, when adequately funded and administered, can be
          operated consistently with constitutional and legal standards. While limited use of
          a contract system to provide indigent defense services may be appropriate in

188
      Spangenberg Report, at p. 86.




                                              53
       narrow situations, such as conflicts or appeals, the Commission concludes that it is
       extremely difficult if not impossible to use effectively a flat-rate contract system
       as the primary means of providing indigent defense services.

       8. The quality of legal services provided to indigent defendants is
       significantly hampered by a failure of most systems to impose minimum
       eligibility requirements for the attorneys who represent indigent defendants.

       The Spangenberg Report reveals that in most of the counties which were visited
       “there are no minimum eligibility criteria for attorneys who wish to accept court-
       appointed cases.”189 Thus, in some counties, the only requirement for membership
       on the panel from which appointments are made is membership in the state bar. In
       other counties, the panel is composed of all attorneys in the county who are in the
       early stages of their career,190 without regard to whether they have training,

189
   Spangenberg Report, at p. 92. It would seem that the inability to enforce requirements of a
minimum level of training and education would be most acute in the panel system (which is,
however, the predominant system of indigent defense service delivery). All attorneys in a public
defender office presumably have expressed an interest in criminal defense work and, at least in a
multi-lawyer office, have an opportunity for mentoring by more senior attorneys. For example,
the Spangenberg Report notes comments in the Houston County public defender office on the
“high level of supervision and mentoring” that takes place in that office. Id. at p. 40. Of course,
the availability of more resources could provide for more training opportunities within the public
defender system. See id., at p. 44 (expressing concern about an “apparent lack of formal
supervision and training” in the Fulton County Public Defender Office. It would seem that most
of those who would seek work as contract attorneys would be those with interest, training and
experience in criminal law, though the Spangenberg Group was told “that in some counties, it is
possible that no attorneys who meet the Supreme Court’s minimum standards will be interested
in becoming a contract attorney, so the county takes whoever is willing to do the work.” Id. at p.
36. Presumably the reference to the Supreme Court’s standards is to Guideline §3.1, which
requires that the tripartite committee should satisfy itself that a contract lawyer (or public
defender) is “competent, meaning: (a) has an adequate educational background; (b) has
demonstrated ability to perform competent trial work and the administration of an office; (c) he
or she conducts their professional work in an ethical manner; (d) is a member in good standing of
the State Bar of Georgia.” The parallel provision dealing with panel attorneys mentions only
competence and does not refer to educational background or trial experience. Supreme Court
Guideline §3.2.
190
   Id. at pp. 28-9. In several counties, an attorney must serve on the panel for the first 5 years of
practice, while in Baldwin County service on the panel is mandatory for all attorneys during their
first 10 years of practice. In Lowndes County, after the initial 5-year mandatory term on the
panel, an attorney not intending to practice criminal law may resign from the panel. If, however,
the civil practice involves any in-court practice, the attorney must participate on the panel. Id. at
p. 28.




                                               54
           competence or experience (or interest)191 in criminal law. In a number of counties,
           young attorneys “‘cut their teeth’ on felony cases, the only appointed cases that are
           available.”192

           A notable exception to the general failure to impose standards of experience and
           training is the Cobb County panel program. According to testimony before the
           Commission and the Spangenberg Report, there are separate panels for
           misdemeanor, felony, capital and non-capital murder, direct appeal and juvenile
           cases.

                      To be included on the various lists ... attorneys must attend annual criminal
                      law CLE seminars and meet minimum levels of experience. For example,
                      attorneys on the misdemeanor list must have engaged in the criminal
                      practice of law for one year prior to joining and must have served as lead or
                      assisting counsel in at least three misdemeanor trials. Felony attorneys
                      must have five years experience in criminal defense or prosecution and
                      must have practiced criminal law for three consecutive years before joining
                      the panel. Further, they must have previously served as lead or assisting
                      counsel in three felony trial cases. Attorneys may move up on the list ... by
                      submitting a letter to the Administrator that provides information regarding
                      meeting the requirements of the desired list.193

           9. Funding for services such as expert witnesses, investigators, qualified
           interpreters, rooms where attorneys can conduct private conversations with
           their indigent clients, and social work evaluations of and services for clients is
           integral to a constitutionally acceptable level of indigent criminal defense. In
           many areas of the state inadequate funding for such services results in unfair
           and often unconstitutional treatment of indigent criminal defendants.

           The Spangenberg Group found major problems “surrounding requests for
           investigators or expert witnesses” in its study.194 Denial of past requests195 for
191
   Id. at p. 28. A panel attorney in Bibb County, where “all practicing attorneys must serve on
the panel...for at least 5 years,” an attorney who is on the panel and regularly practices criminal
law reported that “because of the nature of the panel system, personal injury attorneys are forced
to take cases which are outside of their areas of experience and they just plead these cases.” Id.
192
      Id. at p. 92.
193
      Spangenberg Report at p. 30, fn. 34.
194
      Spangenberg Report, at p. 90.
195
   A panel attorney in Bibb County reported that he has filed 20 requests for expert witnesses on
behalf of his clients and has never had a request approved. Id at p. 64.



                                                   55
           investigative assistance or expert witnesses have caused some attorneys to fail to
           make such requests, even in cases where such assistance would seem appropriate.
           In at least one county, judges and defense attorneys reported that expert witness
           and investigative expenses would be approved only in death penalty cases.196
           While all four of the public defender offices visited by the Spangenberg Group
           had investigators on staff, the situation is very different in panel and contract
           systems. In at least one contract system, the fees for expert witnesses come out of
           the contract itself,197 a clear violation of Supreme Court Guideline §2.7, which is
           designed to guard against conflicts of interest between attorney and client.

           Severe problems exist in the availability of interpreters.198 In a number of counties,
           the “lack of available Spanish speaking interpreters was cited as a significant
           problem” by participants in the system.199 There were reports of defendants’
           children being brought to court to serve their parents as interpreters, inmates,
           probation officers and jail guards being used as interpreters and, in one county,
           commercial “language lines” being utilized to provide interpreter services at first
           appearance hearings.200 It was also reported that in one county with a 10%
           Hispanic jail population, attorneys rarely visit their Hispanic clients because, while
           interpreters are provided at court sessions, there are no translators available at the
           jail.201

           10. Georgia lacks a systematic, uniform, effective approach to identifying and
           assisting indigent defendants with mental disabilities. Additionally, defense
           counsel are often not trained to recognize or cope with the behaviors
           associated with mental disabilities, are not uniformly aware of the

196
   In another county, the Spangenberg Group was told that obtaining approval for investigator
services even in a death penalty case was like “pulling teeth.” Id. at p. 62.
197
      Id. at p. 38.
198
   The Georgia Supreme Court in October, 2001 promulgated rules requiring the availability of
certified and/or registered interpreters for non-English speakers in court proceedings. This order
also established a Commission to oversee the development of county programs and to
promulgate guidelines for interpreter programs. This program has begun to have an impact. As
of July 31, 2002, there were 148 qualified interpreters (having attended an orientation session
and passed a written examination) and 19 certified interpreters (having additionally passed an
oral examination). Id. at p. 63.
199
      Id. at p. 62.
200
      Id. at pp. 62-3.
201
      Id. at p. 63.




                                                56
consequences of pleas of not guilty by reason of insanity and guilty but
mentally ill, and lack information about alternative pre- or post-trial
dispositions for persons with mental disabilities.

There are two dimensions to this problem. The smaller first part relates to
defendants who interpose defenses of not guilty by reason of insanity, guilty but
mentally ill, or incompetence to stand trial. There have been about 400 of these
cases in the last 10 years. Defense counsel handling such cases are often
unfamiliar with the consequences of such pleas, which can place an individual in a
mental institution for an indefinite duration (by contrast to a criminal sentence of a
definite term). Defense counsel typically do not follow the person once
committed under these pleas and the later exercise of rights can be impaired.

The larger problem relates to the system’s response to indigent defendants with
mental disabilities which may not relate to their culpability for the alleged criminal
offense. Such defendants often spend long periods of time detained pre-trial
without proper screening or treatment. The Commission heard testimony from
sheriffs and others that jails have become the institution which replaced state and
regional hospitals for the mentally disabled, and that counties are spending
substantial sums on medication and other medical needs of these defendants.
The Commission heard testimony from experts in the field that many defense
counsel are untrained and ill-equipped to deal with the behaviors exhibited by
defendants with mental disabilities, do not zealously represent these clients, and
are unaware of possible alternative pre- and post-trial dispositions. There are few
available resources, such as social workers, that could assist defense counsel with
any of these issues.

The Commission received information about one county that has implemented an
early intervention system under which jail inmates are screened with the purpose
of referring inmates with mental disabilities to local mental health services. The
Commission also received descriptions of mental health courts in other states, as
well as systems that provide social workers to assist in diversion/treatment efforts.
Currently, however, there is no systematic attempt to involve the indigent defense
system in developing consistent, effective, statewide solutions, including
collaboration among various state and local agencies that have missions to serve
persons with mental disabilities.

11. Georgia lacks a uniform, effective approach to providing counsel for
juvenile defendants, including making the determination of indigency.
Special training for counsel for juvenile defendants generally is not required.
Little guidance is provided on the special responsibilities of courts that deal
with juveniles as they relate to providing counsel or on the special ethical
issues for attorneys representing juvenile defendants. In many counties,



                                     57
          juveniles are not included in the indigent defense plan and the interests of
          juveniles are not represented on the county tripartite committees. In others,
          contract juvenile defenders are expected to handle huge caseloads well in
          excess of accepted and acceptable standards. Finally, the provision of
          counsel in deprivation cases is not uniform throughout the state.

          Almost 28% of the cases in 2001 reported to the GIDC as involving indigent
          clients were juvenile court cases. This almost certainly understates the
          magnitude of the problem because many counties exclude juvenile courts from the
          indigent defense system. It is clear that attorneys are overburdened in cases in
          some of the counties in which indigent services are provided in the juvenile court
          system. For example, the Spangenberg Report found that a single part-time public
          defender in Richmond County handles approximately 1,200 juvenile cases
          annually (along with a private practice) and, in the year prior to the group’s site
          visit, four contract lawyers in Cobb County represented a total of 3,500 juvenile
          clients.202

          There is great disparity in how indigency is determined and whether parental
          resources are considered in juvenile cases. Georgia law and the Constitution
          require counsel to be available to the child at all critical stages, including from the
          outset of detention. Although ABA Standards forbid waiver of counsel by
          juveniles, Georgia law permits an uncounseled waiver of counsel and allows the
          child to be represented by a parent or guardian. Experts believe that most
          juveniles in the system also have mental health issues and the special needs of
          these children, as they affect the provision of competent defense services, are
          being ignored. The Commission also heard evidence that truancy intervention
          programs can have substantial impact on the problem of juvenile crime, because
          80% of all juvenile burglaries are committed during school hours.

          Another problem created by Georgia law is that the charges to be brought against a
          child are determined by court personnel, not by the prosecutor. Often, thus,
          neither the prosecutor nor the defense counsel can adequately prepare for hearings.
          Pre-trial access to information by defense counsel is complicated by the fact that
          the case files are held by court personnel, not by the prosecutor.

          Although GIDC provides training programs for lawyers who represent juveniles,
          most counties do not require counsel who represent juveniles to enroll in that
          training.203 Social workers and other special resources to assist with pre- and
202
      Spangenberg Report, at p. 94.
203
   The Spangenberg Group was informed that Fulton County juvenile court judges require
attorneys to present a certificate attesting to completion of GIDC training in juvenile cases as a
condition of appointment to represent juveniles. Spangenberg Report, at p. 61.



                                               58
           post-trial disposition issues are not available to juvenile defenders.

           Georgia law requires counties to provide counsel for parents in deprivation cases,
           but they are not required to provide counsel or guardians ad litem for children.
           There is inconsistency in whether counsel are in fact appointed for those parents.
           According to the Spangenberg Report, in “some counties, indigent parents are
           provided appointed counsel and children are provided with a guardian ad litem. In
           other counties children are represented by appointed counsel. In some counties
           indigent parents receive no representation at all.”204

           12. There is no comprehensive system of data collection designed to provide
           accurate statistics regarding the provision of indigent criminal defense
           services in Georgia. The absence of such a system significantly hampers the
           ability of policy makers and administrators to make informed judgments and
           plan meaningful improvements in the administration of indigent defense
           services.

           The Spangenberg Group found a “lack of reliable and comprehensive data on
           indigent defense,” noting that the only source of county by county caseload data is
           the information provided in applications for GIDC funding prepared by the
           counties.205 Not all counties “count cases” in the same way and some counties
           simply omit certain categories of cases from their application forms. Data
           collection of information dealing with jail population, training of indigent defense
           personnel and funding is also inadequate and needs significant improvement.

           13. Litigation designed to bring indigent criminal defense in various county
           systems into compliance with appropriate constitutional and legal standards
           has already been brought and, in some cases, yielded piecemeal reform by
           consent decree. Further litigation is being contemplated and likely will occur.
           Thorough, carefully considered reform of the Georgia system by the
           appropriate legislative and executive policy makers is far preferable to
           reform by litigation in the state and federal courts.



IV. Recommendations:

           1. Adequate funding of indigent criminal defense in cases alleging a violation
           of state law should be provided by appropriations by the Georgia General
204
      Spangenberg Report, at p. 94.
205
      Id. at pp. 94-95.




                                                59
       Assembly206

       Georgia’s experience over the past 40 years has demonstrated that a system of
       minimal or non-existent state funding with primary financial responsibility at the
       county level does not work. It 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. Both the United States
       and Georgia Constitutions oblige the state to provide criminal defense for
       indigents charged with violating state law. The State should live up to that
       obligation by providing adequate resources for indigent defense. This
       responsibility should not be delegated to the counties.

       2. The delivery of indigent defense services should be reorganized to insure
       accountability, uniformity of quality, enforceability of standards and
       constitutionally adequate representation.

               A.      Indigent defense should be organized on a judicial circuit level
                       rather than the current system under which the unit of delivery
                       is the county. The reduction of delivery systems from 159 to 49
                       will help to insure uniformity, quality and accountability.

               B.      The presumptive method of delivery should be a full-time public
                       defender with appropriate support staff. Once the new structure
                       and funding system of indigent defense is in place, it will be
                       presumed that each judicial circuit will have a Circuit Public
                       Defender and an appropriate staff. Those circuits currently
                       operating other types of systems, as well as those circuits that would
                       like to adopt a different type of program, should be required to
                       obtain approval from the proposed new Georgia Indigent Defense
206
   It should be noted that for 23 years since the enactment of the Georgia Indigent Defense Act,
the legislative expression of policy in the area of indigent criminal defense has included the
statement that “It is the policy of this state to provide the constitutional guarantees of the right to
counsel and equal access to the courts to all its citizens in criminal cases and to provide...(10)
That the state be responsible for funding the indigent defense system established in [the Georgia
Indigent Defense Act.].” O.C.G.A. §17-12-31 (emphasis added).




                                                 60
      Board, which should grant such approval only if it is convinced that
      the proposed system will be meet or exceed the standards
      promulgated by the Board for the operation of indigent defense
      systems. Alternative systems might be a panel system or a contract
      system or some combination of such systems. For example, a multi-
      county circuit might seek approval for a system in which a public
      defender provided services in one or more counties within the circuit
      and a contract system would operate in the rest of the circuit. Once
      having been approved by the Board, such systems would have to
      perform according to the performance standards promulgated and
      enforced by the Board, through its staff.

C. The state should establish a Georgia Indigent Defense Board to
organize, supervise and assume overall responsibility for the operation
of Georgia’s indigent defense system.

      1) The Board should be comprised of 13 members appointed as
      follows: a) Ten members appointed by the Georgia Supreme Court,
      one from each of the state’s ten judicial districts. In making these
      appointments, the court should receive suggestions from the State
      Bar of Georgia, the Prosecuting Attorneys Council, the organizations
      representing each category of judges in the state, and the Georgia
      Association of Criminal Defense Lawyers, as well as any individuals
      or other organizations within the state; b) One member each
      appointed by the Governor, the Lieutenant Governor and the
      Speaker of the Georgia House of Representatives.

      2) While Board members should represent a diversity of
      backgrounds, experiences and qualifications, Board members should
      be individuals with significant experience in the criminal justice
      system or a demonstrated strong commitment to provision of
      adequate and effective representation of indigent criminal
      defendants.

      3) Board members should serve four-year terms with a limit of two
      consecutive full terms after any initial abbreviated or unexpired
      term. The initial terms, however, for Board members representing
      the odd-numbered judicial districts, along with the initial term for
      the appointee of the Lieutenant Governor should be for two years,
      while all other initial appointees should serve a full four-year term.

D. The Georgia Indigent Defense Board should have broad powers and
responsibilities for the delivery of indigent criminal defense services. It



                            61
should: a) hire, after appropriate advertisement, a Director of Indigent
Defense who will serve as chief of the Board’s staff; b) determine the types
of information required for the auditing and monitoring of the performance
of the indigent criminal defense function and supervise the collection of
that data, whether done by its own staff or by the Administrative Office of
the Courts; c) annually present a report to the Supreme Court, Governor
and General Assembly concerning the status of indigent defense in
Georgia; and d) create rules governing the indigent defense function,
including such topics as permissible caseload/workload, continuing
education, attorney qualifications and compensation for work in certain
kinds of cases (capital cases, felonies, misdemeanors, etc.), investigators,
interpreters, determination of indigency, time frames for appointment and
first contact, structure of conflict defense systems, structure of panel
systems, structure of contract systems.

It also should: e) operate public defender offices in as many of the 49
circuits which are not operating alternative Board-approved systems of
indigent defense. (In this context, the term ”operate” includes the ability to
appoint, supervise and dismiss Circuit Defenders under the standards and
procedures promulgated by the Board.) In appointing Circuit Defenders,
the Board should advertise vacant positions in the local area, seek and
receive input from the governing authorities of the county or counties in the
Circuit and receive suggestions from local bar associations, attorneys,
Superior Court and other judges and other citizens. Circuit defenders shall
be experienced in the criminal defense function and have a commitment to
effective representation of indigent defendants within the mandates of the
Board and the profession concerning appropriate professional conduct; f)
review proposals for alternative delivery systems in circuits seeking to
operate a different system. Having established standards for the operation
of such alternative delivery systems, the Board should have the power to
approve or disapprove such proposals, based on compliance with (or
reasonable prediction of compliance with) those standards; g) conduct an
annual review of the performance of indigent defense delivery systems
(both state-operated circuit public defenders and other approved systems) to
insure that each system is operating appropriately and in compliance with
the Board’s standards; h) determine whether a local non-public defender
system is in compliance with the Board’s rules and, if it is not, to replace
that system with a Board-operated circuit public defender; i) within its
discretion, create statewide offices for particular functions (e.g., death
penalty representation, appellate work, post-conviction representation,
mental health work, juvenile representation); j) conduct education and
training programs for persons providing indigent defense services in the
state, including those employed in public defender programs or alternative



                             62
               delivery systems.


       3. The State of Georgia should adopt principles to govern the circuit systems
       of providing legal services to indigent criminal defendants

       As the “result of careful drafting and review by representatives of all segments of
       the criminal justice system—judges, prosecutors, defense counsel, court personnel
       and academics active in criminal justice teaching and research,”207 the American
       Bar Association has promulgated a set of Standards designed to guide policy
       makers in constructing and operating “systems for legal representation.”208 In
       addition to General Principles governing Professional Independence,209 Supporting
       Services210 and Training and Professional Development,211 the Standards provide
       guidance in establishing and operating systems utilizing Assigned Counsel,212

207
   AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE
SERVICES (3rd ed. 1992) at p. ix. (hereinafter STANDARDS) (in addition to the blackletter
provisions which are quoted herein, the American Bar Association has provided a history of each
standard, related standards from other sources and commentary on each of the blackletter
provisions)
208
   STANDARD 5-1.2 (Subsection (a) of this Standard endorses the use of a full-time public
defender “when population and caseload are sufficient to support such an organization. Multi-
jurisdictional organizations may be appropriate in rural areas.” Subsection (b) provides that all
systems “should include the active and substantial participation of the private bar.”).
209
   STANDARD 5-1.3 (Subsection (a) provides: “The legal representation plan ... should be
designed to guarantee the integrity of the relationship between the lawyer and client. The plan
and the lawyers serving under it should be free from political influence and should be subject to
judicial supervision only in the same manner and to the same extent as are lawyers in private
practice. The selection of lawyers for specific cases should not be made by the judiciary or
elected officials, but should be arranged for by the administrators of the defender, assigned-
counsel and contract-for-service programs.”)
210
   STANDARD 5-1.4 (“The legal representation plan should provide for investigatory, epert, and
other services necessary to quality legal representation. These should include not only those
services and facilities needed for an effective defense at trial but also those that are required for
effective defense participation in every phase of the process....”)
211
  STANDARD 5-1.5 (“The legal representation plan should provide for the effective training,
professional development and continuing education of all counsel and staff involved in providing
defense services. Continuing education programs should be available, and public funds should
be provided to enable all counsel and staff to attend such programs.”
212
   Part II of the STANDARDS. The standards in this part deal with systematic assignment,
eligibility to serve, rotation of assignments and revision of roster, as well as compensation and



                                                63
          Contract Defense Services213 and (Public) Defender Systems.214 Stage of
          Proceedings,215 Eligibility for Assistance216 and Offer and Waiver.217 Very
          importantly, Part V of the Standards includes a provision on appropriate workload
          which states that no defenders, under any type of system, “should accept
          workloads that, by reason of their excessive size, interfere with the rendering of
          quality representation or lead to the breach of professional obligations.”218 Since
          the promulgation of the third edition of Chapter 5 of the ABA Standards in 1992,
          the ABA House of Delegates, in February of this year, adopted a set of 10
          “Principles of a Public Defense Delivery System.”219

          The Commission strongly recommends that the State’s policy makers (the Georgia
          Supreme Court, the General Assembly and the Georgia Indigent Defense Board)
          utilize these Standards and Principles in the creation and supervision of the
          indigent criminal defense delivery system in Georgia. Unquestionably, adequate
          state funding is necessary to the creation of an appropriate indigent defense
          system. It cannot be stated strongly enough, however, that without a carefully
          considered system which operationalizes these Standards and Principles, even a
          significant increase in state funding will be insufficient to provide an adequate

expenses. The latter provision, STANDARD 5-2.4 provides: “Assigned counsel should receive
prompt compensation at a reasonable hourly rate and should be reimbursed for their reasonable
out-of-pocket expenses.”
213
   Part III of the STANDARDS. The standards in this part deal with the use of contracts for
services, contracting parties and procedures, and elements of the contract for services.
STANDARD 5-3.1 provides: “The contracting authority should not award a contract primarily on
the basis of cost.” The Commentary to this standard refers to guidelines concerning the
negotiating and awarding of government contracts for criminal defense services promulgated by
the National Legal Aid and Defender Association and endorsed by the American Bar
Association.
214
   Part IV of the STANDARDS. The standards in this part deal with the chief defender and staff,
restrictions on private practice and facilities.
215
  Part VI of the STANDARDS includes guidelines concerning the initial provision of counsel, the
duration of representation and removal of counsel.
216
      Part VII of the STANDARDS.
217
      Part VIII of the STANDARDS.
218
      STANDARD 5-5.3.
219
   The blackletter of these Principles appear in Appendix D of this Report. The ABA
promulgated Commentary to provide context and detail to these Principles.




                                              64
          indigent defense system. While the Commission’s complete report on the impact
          of Shelton awaits the completion of the further work of The Spangenberg Group,
          the Commission strongly recommends that the principles promulgated for local
          indigent defense systems be used in establishing and monitoring the indigent
          defense system providing representation in municipal and probate courts.

          4. The State of Georgia should adopt performance standards by which
          attorneys providing indigent defense should be evaluated

          It is important for the state to adopt standards against which, consistent with
          respect for the attorney-client relationship, indigent defense attorneys can be
          evaluated. Such standards should provide a source of guidance to defense
          attorneys, but should not be used to determine whether any alleged misconduct of
          the attorney constitutes ineffective assistance of counsel nor whether professional
          discipline is appropriate. Beginning in 1963, the American Bar Association and
          the American Law Institute began a collaboration in the creation of such
          standards. In 1992, the American Bar Association approved the third edition of
          these Defense Function Standards.220 On its face, this set of standards applies to all
          criminal defense attorneys, whether providing services to paying or indigent
          clients. The vast majority of criminal defendants in the State of Georgia are
          indigents. The Commission does not necessarily recommend that every one of the
          ABA Standards be adopted for use in the provision of indigent defense services,
          but offers a summary of them as examples of the kinds of provisions which should
          be included in any performance standards promulgated by the Georgia Supreme
          Court or the Georgia Indigent Defense Board. The promulgation of such
          standards will assist the Board in conducting its evaluation of Circuit systems and
          will give Circuit administrators (whether public defenders or otherwise) assistance
          in evaluating the conduct of attorneys within their respective offices. While the
          Commission’s complete report on the impact of Shelton awaits the completion of
          the further work of The Spangenberg Group, the Commission strongly
          recommends that the standards for local indigent defense be used in evaluating the
          work of attorneys providing indigent defense services in municipal and probate
          courts.


          The Standards are “intended to be used as a guide to professional conduct and
          performance.”221 Under the Standards, defense counsel are directed to “serve as the
220
      These Standards appear as Title 4 of the ABA Standards mentioned earlier.
221
   STANDARD 4-1.1 (while making clear that these Standards are not designed to “be used as
criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the
validity of a conviction,” this Standard states that the Standards “may or may not be relevant in
such judicial evaluation, depending on all the circumstances.”)



                                               65
          accused’s counselor and advocate with courage and devotion and ... render
          effective, quality representation.”222 Specific standards are offered to cover:




222
      STANDARD 4-1.2(b).




                                               66
•                                   Delays; Punctuality; Workload223
•                                   Public Statements224
•                                   Establishment of (Lawyer-Client) Relationship225
•                                   Interviewing the Client226
•                                   Prompt Action to Protect the Accused227
•                                   Duty to Keep Client Informed228
•                                   Duty to Investigate229
•                                   Relations with Prospective Witnesses230
•                                   Advising the Accused231
•                                   Control and Direction of the Case232
•                                   Duty to Explore Disposition Without Trial233
•                                   Plea Discussions234
•                                   Sentencing235
•                                   Appeal236


          Another set of performance standards widely relied upon throughout the country
          was promulgated by the National Legal Aid and Defender Association (NLADA)

223
      STANDARD 4-1.3.
224
      STANDARD 4-1.4.
225
      STANDARD 4-3.1
226
      STANDARD 4-3.2.
227
      STANDARD 4-3.6.
228
      STANDARD 4-3.8.
229
      STANDARD 4-4.1.
230
      STANDARD 4-4.3.
231
      STANDARD 4-5.1.
232
      STANDARD 4-5.2.
233
      STANDARD 4-6.1.
234
      STANDARD 4-6.2.
235
      STANDARD 4-8.1.
236
      STANDARD 4-8.2.




                                            67
          in 1995.237 The NLADA has been in existence for over 50 years and works closely
          with the American Bar Association and the National Association of Criminal
          Defense Lawyers in assisting in the development of indigent defense programs
          throughout the country. The NLADA guidelines, which focus primarily on
          indigent defense counsel, are in many respects similar to the ABA Chapter 4
          Standards mentioned earlier. Their object is to alert the attorney to possible
          courses of action that may be necessary, advisable or appropriate and thereby to
          assist the attorney in deciding upon the particular actions which must be taken to
          insure the best representation possible.

          Specific performance standards for those attorneys engaged in indigent defense
          should be promulgated in Georgia. Whether these are to be issued by the
          proposed Georgia Indigent Defense Board, the Georgia Supreme Court or some
          other agency, the Commission strongly recommends that the ABA and NLADA
          performance standards be considered as a model for such standards.238

          5. The state should develop a systematic, uniform, and effective approach for
          identifying and assisting indigent defendants with mental disabilities.
          Defense counsel should be required to have training to recognize and cope
          with the behaviors associated with mental disabilities. Defense counsel also
          should be required to have training concerning the consequences of pleas of
          not guilty by reason of insanity and guilty but mentally ill, and concerning
          alternative pre- or post-trial dispositions for persons with mental disabilities.
          Improvement of the procedures for assisting mentally disabled indigent defendants
          is needed in order to provide more appropriate and humane responses to the needs
          of the many individuals caught up in the criminal justice system who have special
          needs. Simultaneously, improved and uniform procedures will also assist in
          easing the burden on local jails currently housing mentally handicapped
          individuals with special medical or behavioral problems. Diverting such
          defendants to more appropriate settings as quickly as possible will also improve
          efficiencies in local courts.


          6. The state should develop a uniform, effective approach to providing
          counsel for juvenile defendants, including establishing uniform procedures
          for determining indigency. Counsel for indigent juveniles should be required
          to have training concerning the special ethical issues faced by attorneys
237
      The NLADA guidelines are printed in their entirety in Appendix E.
238
  The task of drafting specific performance guidelines for Georgia based on the ABA and
NLADA guidelines already has been attempted by Michael Mears of the Georgia Multi-County
Defender Office. They are attached as Appendix F.




                                               68
representing juveniles, the special needs of juveniles with mental disabilities
and/or substance abuse issues, and alternative pre- and post-adjudication
dispositions. All circuit indigent defense plans should be required to address
issues related to providing adequate counsel for juveniles and provide for
counsel for indigent parties in deprivation cases. Maximum caseload
standards should be established and enforced for attorneys representing
indigent juveniles. Waiver of counsel by juveniles or their parents should
not be permitted.

This set of recommendations will bring Georgia’s juvenile justice system into
compliance with constitutional requirements for juvenile defendants and should
result in earlier and more appropriate dispositions for juveniles with special needs.
Juveniles detained for lengthy periods and in inappropriate settings risk
exacerbation of existing problems, contrary to the rehabilitative goal of the
juvenile justice system. A uniform statewide approach to these issues will reduce
the disparity of treatment currently existing within the state.


7. A comprehensive data collection system designed to provide an accurate
picture of the provision of indigent criminal defense services in Georgia
should be established and implemented. The data collection procedures
should enhance the ability of policy makers and administrators to make
informed judgments concerning the administration of the system and
planning for improvements. Consistent with these goals, the data collection
procedures should not unduly burden local systems and should be funded by
the state.

The importance of accurate, comprehensive, and current data for administration
and planning purposes cannot be overstated. Indeed, even if the decision is made
to delay full state funding of the indigent defense system and/or to delay the
creation of the State Indigent Defense Board, the system of data collection must be
improved significantly. This recommendation will address the problems noted by
the Spangenberg group and others about making comparative judgments about the
local indigent defense systems within the state. Such data also is crucially
important to the understanding of how Georgia’s system is satisfying its
obligations in comparison to other states.


8. Because of the significant extra funding and structural reform required to
operate a constitutionally-sufficient indigent system, a transition plan must be
created to expeditiously create a new system to remedy current inadequacies.

While the precise details of a transition plan to take the state from its current



                                     69
      indigent defense system to the system recommended by the Commission is beyond
      the scope of this Report, the Commission urges the relevant policy makers to
      create such a plan with the goal of having a fully-funded, fully-organized new
      indigent defense system in place on July 1, 2005. The first goal of a transition
      plan would be to significantly increase state funding for indigent defense services
      in order to insure the constitutional adequacy of the system. At the same time,
      during the initial part of the transition period, the new Board must be created,
      members appointed and the Director of Indigent Defense must be hired and given
      time to hire a staff. It is also imperative that the Board have sufficient time to
      consider and create a funding formula to provide an appropriate level of funding
      for each of the 49 judicial circuits. Likewise, during the transition period, the
      Board must consider and create standards for the operation of indigent defense. At
      least for the initial portion of the period of transition to the new system, the
      Georgia Indigent Defense Council should remain in place, continuing to serve as
      the funding conduit for state funds, providing advice and counsel to local indigent
      defense programs, operating the multi-county public defender, providing training,
      etc. During the transition to the new system of complete state funding, the current
      system of funding should remain in place with increasingly large contributions
      being made by the state. Under no circumstances should there be any diminution
      of funding for indigent defense services during the transition.

V. Conclusion

       After lengthy consideration of the operation of indigent defense in this state, the
Commission has determined that significant improvement is necessary to insure that our
state has a constitutionally-sufficient, fair criminal justice system. Significantly more
money must be devoted to providing a defense to those without adequate resources to
provide it for themselves. The Commission also concludes that an infusion of additional
money, while absolutely necessary, is not sufficient to complete the awaiting task. In
addition to more resources, a system which insures quality, uniformity and accountability
must be created by the State. Members of the Commission thank the court for the
opportunity to serve their state in the cause of justice.




                                          70
Executive Summary ......................................................................................................................... i
Prologue ......................................................................................................................................... vi

CHAPTER 1INTRODUCTION ......................................................................................................1
     1.1    METHODOLOGY ..................................................................................................3
     Table 1-1Georgia Supreme Court Indigent Defense CommissionSample Counties ...........5

CHAPTER 2THE GEORGIA COURT SYSTEM ..........................................................................6
     2.1  Jurisdiction...............................................................................................................6

CHAPTER 3 THE RIGHT TO COUNSEL AND INDIGENT DEFENSE IN GEORGIA ...........8
     3.1    THE RIGHT TO COUNSEL IN GEORGIA...........................................................8
     3.2    INDIGENT DEFENSE IN GEORGIA....................................................................8
     3.3    THE GEORGIA INDIGENT DEFENSE COUNCIL ..........................................10
     3.4    FUNDING FOR INDIGENT DEFENSE IN GEORGIA .....................................12
            Table 3-1 Total Indigent Defense Expenditure in Georgia....................................14
     Table 3-2Total and Average County Indigent Defense Funding for Counties Applying to
            GIDC Calender Year 1991-2000 ...........................................................................15
     3.5    OTHER GIDC PROJECTS ...................................................................................17
            3.5.1 Multi-County Public Defender ..................................................................17
            3.5.2 Mental Health Advocacy Division ...........................................................17
            3.5.3 Juvenile Advocacy Division .....................................................................18
            3.5.4 Appellate Division .....................................................................................18
            3.5.5 Professional Education Division ...............................................................18
     3.6    PARTICIPATION IN GRANTS TO COUNTIES FUNDING ............................18
     3.7    TRIPARTITE COMMITTEES .............................................................................21
     3.8    PERCEPTIONS OF GIDC ...................................................................................23

CHAPTER 4CHARACTERISTICS OF DIFFERENT DELIVERY SYSTEMS .........................27
     4.1  PANELS ................................................................................................................28
          4.1.1 Composition...............................................................................................28
                 4.1.1.1 Mandatory Participation ................................................................28
                 4.1.1.2 Voluntary Panel .............................................................................29
          4.1.2 Standards, Guidelines, Training to get on Panel........................................30
          4.1.3 Monitoring .................................................................................................31
          4.1.4 Compensation ...........................................................................................31
     4.2  CONTRACT ATTORNEYS .................................................................................34
     4.3  PUBLIC DEFENDERS .........................................................................................40
          4.3.1 Houston County ........................................................................................40
          4.3.2 Habersham County.....................................................................................42
          4.3.3 Fulton County ...........................................................................................43
          4.3.4 DeKalb County ..........................................................................................45
          4.3.5 Public Defender Salary ................................................................................46
     4.4  THE 72-HOUR RULE AND EARLY REPRESENTATION ...............................46
     4.5  ISSUES REGARDING REPRESENTATION IN VARIOUS CASE TYPES......50
                     4.5.1 Felony Cases ..............................................................................................50
                     4.5.2 Misdemeanor Cases ...................................................................................50
                     4.5.3 Juvenile Cases............................................................................................52
                     4.5.4 Capital Cases..............................................................................................53
                     4.5.5 Habeas Corpus Actions .............................................................................54
          4.6        WAIVERS OF COUNSEL....................................................................................55
          4.7        ATTORNEY-CLIENT CONTACT.......................................................................56
          4.8        INDIGENCY DETERMINATION .......................................................................58
          4.9        TRAINING ............................................................................................................60
          4.10       ANCILLARY SERVICES.....................................................................................61
                     4.10.1 Investigators...............................................................................................61
                     4.10.2 Interpreters .................................................................................................62
                     4.10.3 Experts .......................................................................................................63
                     4.10.4 Social Workers and Programs that Provide Alternatives to Incarceration 64
                     4.10.5 Mental Health Services..............................................................................64
                     4.10.6 Adequate Client Meeting Space ................................................................65
          4.11       CASELOAD ..........................................................................................................65
          4.12       PROBLEMS UNIQUE TO RURAL AREAS .......................................................66
          4.13       INDEPENDENCE .................................................................................................67
          4.14       DELAY IN INDICTMENT/ACCUSATION & ITS EFFECT ON JAIL
                     POPULATION ....................................................................................................68
          4.15       DISPARITY IN PROSECUTION AND DEFENSE RESOURCES.....................69

CHAPTER 5A SPECIAL LOOK AT FULTON COUNTY .........................................................73

CHAPTER 6 GEORGIA'S INDIGENT DEFENSE SYSTEM COMPARED WITH SIMILAR
     STATE SYSTEMS ............................................................................................................78
     6.1    Introduction............................................................................................................78
     Table 6-1Sample States .....................................................................................................79
     6.2    Indigent Defense Expenditure ...............................................................................79
     Table 6-2State and County Indigent Defense Expenditure and Cost-Per-Capita in
            Selected States .......................................................................................................80

CHAPTER 7WHO IS THE VOICE FOR INDIGENT DEFENSE IN GEORGIA? .....................82

CHAPTER 8FINDINGS................................................................................................................85

APPENDIX A................................................................................................................................98
                                    Executive Summary
                           Status of Indigent Defense in Georgia:
           A Study for the Chief Justice's Commission on Indigent Defense, Part I

        At the request of the Chief Justice's Commission on Indigent Defense, in December 2001,
the Georgia Administrative Office of the Courts contracted with The Spangenberg Group (TSG)
to conduct a comprehensive study of indigent defense that the Commission would use to assist in
completing its task of studying the status of indigent defense in Georgia and developing a
strategic plan to improve the system.

       Formed in 1985, TSG is a nationally and internationally recognized criminal justice
research and consulting firm that specializes in indigent defense services. TSG has conducted
research in all 50 states and provides consultative services to developing and developed
countries which are reforming their legal aid delivery programs. TSG has conducted
comprehensive statewide studies of indigent defense systems in more than half of the states. In
addition, The Spangenberg Group has conducted several prior studies of indigent defense in
Georgia; thus, TSG already had familiarity with Georgia’s indigent defense system before
undertaking the statewide study.

       The methodology for the study included:

       •       review of reports and data on Georgia's indigent defense system from numerous
               sources, including the Georgia Indigent Defense Council, the Southern Center for
               Human Rights, the Georgia State Bar, the Administrative Office of Courts, and
               the American Bar Association’s Juvenile Justice Center;
       •       on-site assessments of the indigent defense systems in 19 counties; and
       •       collection and analysis of comparison information from other states' indigent
               defense systems.

         The 19 counties were selected to be representative of Georgia's 10 judicial administrative
districts, geography and population, and to reflect a diversity of indigent defense system types
(contract, assigned counsel, public defender). The combined population in the 19 counties
represents 45% of the state's population. In each county visited, we met with people who
participate in or are involved with indigent defense services, including superior court judges,
state court judges, juvenile court judges, magistrate court judges, the district attorneys and/or
staff, public defenders, panel and contract attorneys, tripartite committee members, indigent
defense administrators, county commissioners, and sheriffs or jailers familiar with indigent
defense procedures.

       In addition to meeting with these individuals, we observed criminal court sessions in
most counties. In a number of counties, we met with court administrators, solicitors general and
probation staff. We also met with indigent defendants awaiting trial to obtain their impressions
of how well the local indigent defense systems functioned. In total, we spent over 100 days in
Georgia conducting interviews with hundreds of individuals.

                                                 i
FINDINGS

        The Spangenberg Group’s findings reflect our overall impressions of Georgia’s indigent
defense system. These impressions are based primarily upon our site work in the 19 sample
counties, including our interviews with hundreds of individuals whose work involves the
handling of cases of indigent criminal defendants, juveniles accused of delinquency, and
deprivation matters. Additionally, in making the findings, we used quantitative data, such as
caseload and budget figures, assigned counsel fee schedules, Administrative Office of the Courts
caseload data, and other secondary information such as court orders from litigation concerning
systemic deficiencies of indigent defense in Georgia, various reports and press clips. We also
relied on information and testimony presented at the monthly meetings of the Chief Justice's
Commission on Indigent Defense. Finally, the findings are based on the perspective and
experience TSG has gained by working in Georgia over the years. The black letter findings
appear below: the full findings with explanation appear at the end of the report.

BLACK LETTER FINDINGS

1.     A lack of program oversight and insufficient funding are the two chief problems
       underlying a complete absence of uniformity in the administration of and quality of
       indigent defense services throughout the 19 Georgia counties we studied.

2.     State funds constitute a very low percentage of total funding for indigent defense in
       Georgia.

3.     While most people interviewed in our site work support increased state funds for indigent
       defense, some people, especially judges, continue to oppose increased centralized
       oversight of indigent defense in Georgia.

4.     Two of the biggest problems facing indigent defense in Georgia and efforts to improve it
       are its lack of independence from the judiciary, and a steadfast unwillingness on the part
       of some judges in the state to support a system that grants this independence.

5.     Under Georgia law, judges have inherent power to appoint counsel to represent indigent
       defendants and to order compensation and reimbursement from county funds in
       individual cases as the proper administration of justice may require. However, the wide
       discretion given to judges in some counties over attorney selection at the very least
       creates the potential for conflicts of interest and the appearance of conflicts of interest.

6.     In most of Georgia’s local indigent defense programs, there are few mechanisms in place
       to guarantee that defense lawyers are consistently held accountable for the quality of
       representation they provide to indigent defendants.

7.     Lack of consistency and accountability have a deleterious impact on the consistency and

                                                 ii
      quality of representation provided to indigent defendants from county to county and often
      result from wide variations in local criminal justice system practice.

8.    The model of the tripartite committee, while seemingly laudatory on paper, has, in
      practice, failed to effectively monitor or administer indigent defense in many counties.
      The model of state grant-making and local control has not worked.

9.    There is no effective statewide advocate for indigent defense in Georgia.

10.   Georgia counties are not accountable for the quality or structure of their indigent
      defense systems. In addition, just as there is no effective statewide advocate for
      indigent defense in Georgia, in many counties, there is no effective advocate for
      indigent defense at the county level.

11.   There is a common viewpoint among some judges, prosecutors, jail personnel and
      even some defense lawyers that indigent defendants facing minor charges do not
      need or want lawyers, even when they are entitled to appointed counsel by law.

12.   Georgia’s large number of counties and its multi-layered court system make
      improvements to indigent defense a particularly daunting task.

13.   Major problems were found surrounding requests for investigators or expert
      witnesses.

14.   There are continuing problems concerning the availability of qualified interpreters
      to assist indigent defendants and their lawyers, despite a recent Supreme Court
      initiative designed to correct these problems. Many indigent defendants in Georgia
      do not speak English; thus, access to trained, professional interpreters who speak
      various languages and dialects is crucial.

15.   Georgia lacks a systematic approach to identifying and assisting indigent defendants
      who suffer from mental illness.

16.   Based upon data from GIDC, the cost per capita for indigent defense in Georgia for
      FY 2001 was approximately $5.68, ranking Georgia eighth out of 11 states for which
      we have comparison information in per capita state and county expenditures.

17.   None of the 19 counties we visited provide sufficient funds to assure quality
      representation to all indigent defendants.
18.   There is an imbalance of resources between prosecution and indigent defense in
      Georgia.

19.   The public defender system is used by far fewer counties than appointed or contract
      attorneys.

                                              iii
20.   In most of the counties we visited, there are no minimum eligibility criteria for
      attorneys who wish to accept court-appointed cases.

21.   In the majority of counties we visited, there are no requirements that attorneys
      taking court-appointed cases participate in continuing legal education programs in
      criminal law.

22.   Individuals who make use of GIDC’s special divisions praised their effectiveness.

23.   Georgia is the only state in the country that does not provide a right to counsel in
      capital post-conviction (habeas corpus) cases.

24.   Superior courts in several counties visited mandate that all practicing attorneys
      participate on the courts’ assigned counsel panels, regardless of the attorneys’
      interest in or aptitude for criminal defense.

25.   Early representation is uneven and problematic in some areas: sometimes there is
      no involvement of counsel until arraignment, even in counties where indictment can
      take up to one year from arrest.

26.   Delay in early involvement of counsel is attributed to various factors.

27.   Some of the more alarming problems in Georgia’s indigent defense system are
      found in the treatment of juveniles accused of delinquent offenses.

28.   There is inconsistency among counties in the way in which deprivation cases are
      handled.

29.   There is a lack of reliable and comprehensive statewide data on indigent defense in
      Georgia.

30.   There is a perception by some that State Grants to Counties distributed by GIDC
      are used to supplant, not to supplement, county funding for indigent defense.

31.   In considering improvements to indigent defense in Georgia, it is important to
      recognize that some problems facing the indigent defense systems in predominantly
      rural counties differ from those in predominantly metropolitan counties.
32.   While we found many indigent defense practices that concern us, we found a
      number of practices that deserve favorable mention. Most of these practices were
      developed to address problems in the local indigent defense or criminal case
      processing systems.

33.   Few of the counties we visited had Pre-Trial Services Offices helping eligible

                                             iv
      indigent defendants who cannot afford their bonds to get out of jail pre-trial, thus
      easing pre-trial jail population overcrowding.

34.   A few judges told us they felt under pressure from counties to contain or reduce
      indigent defense expenditure.

35.   Jail overcrowding is a problem for jails in Georgia.




                                             v
                                           Prologue

        On May 20, 2002, the U.S. Supreme Court declared that the Sixth Amendment’s
guarantee of the assistance of counsel forbids imposition of a suspended sentence of
imprisonment upon an indigent defendant who has neither been offered a court-appointed lawyer
nor properly waived the right to counsel. Alabama v. Shelton, 122 S. Ct. 1764 (2002). In
Shelton, indigent defendant LeReed Shelton was tried in an Alabama court on a third-degree
assault charge, was not offered state-paid counsel and represented himself. He was convicted
and sentenced to 30 days in jail, but the judge immediately suspended the sentence and placed
him on probation. Shelton appealed his conviction on Sixth Amendment grounds.

        Looking at current practices around the country, the majority declared that its rule
should not be unduly burdensome to states. The court noted that in many states, a defendant in
Shelton’s situation would have been entitled to counsel at trial, even without the Supreme Court
so requiring.

        The site work for the following report was conducted before the Supreme Court issued its
Shelton opinion, thus the issue of whether counsel is appointed to indigent defendants facing
minor misdemeanor charges in Georgia was not fully explored in the research. The types of
cases that Alabama v. Shelton addresses are tried primarily in municipal, magistrate, recorder’s,
probate and state courts. With the exception of state courts, these lower courts were not a focus
of the site work for this report. However, even though the practices of lower courts were not
thoroughly investigated, it became apparent during the site work that indigent misdemeanor
defendants often are not offered counsel in these courts, many of which are not courts of record.
This practice has more serious implications than it did before Shelton was issued.

       Recognizing that Alabama v. Shelton’s expansion of the right to counsel will require
change and exert financial strain in Georgia, the Chief Justice’s Commission on Indigent
Defense requested that The Spangenberg Group conduct a review of the practices in Georgia’s
lower courts after work on this initial report had been completed. The forthcoming “Shelton”
report will help the Commission complete its recommendations on improving indigent defense in
Georgia.




                                               vi
                                               CHAPTER 1
                                             INTRODUCTION

        In December 2000, former Chief Justice Robert Benham and the Justices of the Supreme
Court of Georgia appointed a commission to review indigent defense in the State of Georgia.
Major impetus for creation of the Chief Justice’s Commission on Indigent Defense came from a
January 2000 resolution of the State Bar of Georgia endorsing the formation of such an entity to
“investigate the current system of providing indigent legal defense in Georgia, including its
funding, structure and administration, and recommend any changes to the current system as the
commission might propose.” In July, 2000, the Council of Superior Court Judges adopted a
resolution supporting creation of a study committee on indigent defense and seeking superior
court judge involvement. In the order creating the commission, the Chief Justice's charge to
commission members was to “study the status of indigent defense in Georgia, to develop a
strategic plan and to set a timetable for its implementation.” Charles R. Morgan, Executive Vice
President and General Counsel of BellSouth Corporation, was named the Chairperson of the
broadly based commission.1


1
 Other members include: University of Georgia School of Law Associate Dean Paul Kurtz (Commission Reporter);
State Court Judge A. Harris Adams; 11th Circuit Court of Appeals Judge Stanley F. Birch, Jr.; Senate Judiciary
Committee Member Michael Meyer von Bremen; Senate Judiciary Committee Secretary Robert Brown; Clay,
Wilson & Rodgers, P.C. Attorney Charles C. Clay; House Appropriations Committee Chairperson Terry Coleman;
Georgia Indigent Defense Council Chairperson Flora Devine; State Bar of Georgia Indigent Defense Committee
Chairperson Wilson DuBose; Superior Court Judge C. Andrew Fuller; Association of County Commissioners of
Georgia Executive Director Jerry Griffin; House Judiciary Committee Member Allen Hammontree; Director of
Georgia Legal Services Phyllis Holmen; Life of the South Insurance Company Vice Chairman Paul Holmes; Emory
University School of Law Executive Vice President for Academic Affairs and Provost Howard O. Hunter;
McKenna, Long & Aldrige, P.C. Attorney R. William Ide, III; House Special Judiciary Committee Chairperson
Curtis Jenkins; Clayton Judicial Circuit District Attorney Robert Keller; Lawson & Thornton, P.C. Attorney George
Lawson; Sutherlan, Asbill & Brennan, P.C. Attorney Charles T. Lester; Powel, Goldstein, Frazier & Murphy, L.L.P
Attorney Aasia Mustakeem; Page, Scronton, Sprouse, Tucker & Ford, P.C. Attorney Miller Peterson ("Pete")
Robinson; Superior Court Judge Billy Ray; Superior Court Judge Lawton Stephens; and Superior Court Judge A.
Blenn Taylor.




                                                        1
         The commission met monthly in an open public forum, inviting various individuals to
provide their firsthand impressions of their experience with Georgia's indigent defense system.
Individuals appearing before the commission included lawyers providing legal representation to
indigent defendants in Georgia, representatives of civil rights groups in Georgia, administrators
of the Georgia Indigent Defense Council, administrators of local indigent defense systems in the
state, judges, district attorneys and sheriffs. The commission also invited representatives from
other states to discuss their states' indigent defense delivery systems as well as the various
national standards and guidelines on indigent defense. Guests included members of The
Spangenberg Group (TSG), a research and consulting firm specializing in the study of indigent
defense systems in the United States.

       Initial participation by TSG was provided on behalf of a joint project between the
American Bar Association and the U.S. Department of Justice Bureau of Justice Assistance. The
State Commissions Project was a two-year effort to provide technical assistance to states that had
formed study commissions such as the Chief Justice’s Commission on Indigent Defense to
review and make recommendations for improvement to indigent defense systems.2 The project's
funding period ended before the Georgia commission's work was completed. Through its
monthly meetings, the commission gained a great deal of knowledge of how indigent defense is
administered in Georgia. However, the commission members are all extremely busy people, and
lacked the time to undertake an in-depth, on-site evaluation of indigent defense in the state.
Thus, at the request of the commission, in December 2001, the Administrative Office of the
Courts contracted with The Spangenberg Group to conduct a comprehensive study of indigent
defense that the commission would use to assist in completing its task of studying the status of
indigent defense in Georgia and developing a strategic plan to improve the system.

        Formed in 1985, TSG is a nationally and internationally recognized criminal justice
research and consulting firm that specializes in indigent defense services. TSG has conducted
research in all 50 states and provides consultative services to developing and developed
countries which are reforming their legal aid delivery programs. For over 15 years, TSG has
been under contract with the American Bar Association's Bar Information Program (BIP), which
provides support and technical assistance to individuals and organizations working to improve
their jurisdictions' indigent defense systems. TSG has conducted comprehensive statewide
studies of indigent defense systems in more than half of the states.3


2
 In addition to Georgia, assistance under the State Commissions Project was provided to study groups in
Alabama, Illinois, North Carolina, Nevada, Oregon, Texas and Vermont. In three of these states - North
Carolina, Oregon and Texas - the study efforts led to significant legislative improvements to the local indigent
defense systems.

3
 TSG has conducted statewide indigent defense studies in the following states: Alabama, Alaska, Arkansas,
Arizona, Connecticut, Delaware, Florida, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts,
Michigan, Mississippi, Missouri, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island,
South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia and Wisconsin.


                                                       2
       In addition, The Spangenberg Group has conducted several prior studies of indigent
defense in Georgia, including:

       •       Overview of the Fulton County, Georgia Indigent Defense System (1990);
       •       A Review of the Fulton County Conflict Defender (1998);
       •       Comparative Analysis of Indigent Defense Expenditures and Caseloads in States
               with Mixed State & County Funding (1997-98); and
       •       A Review of the Legal Aid and Defender Clinic at the University of Georgia,
               Athens, Georgia (1999).

All of these studies were conducted by The Spangenberg Group under its contract with the
American Bar Association’s Bar Information Program.


1.1    METHODOLOGY

       The methodology for this study included:

       •       review of reports and data on Georgia's indigent defense system from numerous
               sources, including the Georgia Indigent Defense Council, the Southern Center for
               Human Rights, the Georgia State Bar, the Administrative Office of the Courts,
               and the American Bar Association’s Juvenile Justice Center;
       •       on-site assessments of the indigent defense systems in 19 counties; and
       •       collection and analysis of comparison information from other states' indigent
               defense systems.

         The 19 counties were selected to be representative of Georgia's 10 judicial administrative
districts, geography and population, and to reflect a diversity of system types (contract, assigned
counsel, public defender). A listing of the counties appears in Table 1-1. In each of the 19
counties visited, we met with people who participate in or are involved with indigent defense
services, including:

       •       Superior court judges
       •       State court judges
       •       Juvenile court judges
       •       Magistrate court judges
       •       District Attorney and/or staff
       •       Public defender, panel and contract attorneys
       •       Tripartite committee members
       •       Indigent defense administrators
       •       County commissioners
       •       Sheriff or a jailer familiar with indigent defense procedures.


                                                 3
In addition to meeting with these individuals, we observed criminal court sessions in most
counties (in some of the smaller counties criminal court was not sitting when we were visiting).
In a number of counties, we met with court administrators, city solicitors and probation staff.
We also met with indigent defendants awaiting trial to get their impressions of how well the
local indigent defense systems functioned. In total, we spent over 100 days in Georgia
conducting interviews with hundreds of individuals.

        The combined population in the counties visited represents 45% of the state's population.
 In addition, many of the people interviewed in our sample counties were able to give us
additional information about indigent defense in surrounding counties. Superior court judges
and district attorneys in Georgia serve on a circuit-wide basis, and most judicial circuits contain
more than one county. Many indigent defense lawyers accept appointments or contracts in
multiple counties.

         The task of scheduling appointments to meet with individuals in 19 counties over a
three-month period was a daunting one. TSG is greatly appreciative of the assistance provided
by the Administrative Office of the Courts and the District Court Administrators who assisted
with scheduling interviews in several counties. Cynthia Hinrichs Clanton, General Counsel and
Assistant Director for Grants and Special Projects with the Administrative Office of the Courts
and Kendall Butterworth, Senior Litigation Counsel of BellSouth, provided superb contract and
logistical assistance to TSG. In addition, we are appreciative of the warm reception given to us
in all of the counties visited. People willingly gave of their time and spoke candidly with us
about indigent defense in Georgia. In every county visited, we were greatly impressed with the
graciousness of the people we interviewed.




                                                 4
                                   Table 1-1
               Georgia Supreme Court Indigent Defense Commission
                                Sample Counties


   County          Population   Judicial District   Principal City       Type of System

0-25,000            816,006            5              Atlanta           Public Defender
25-50,000

   50-20,000

  200-500,000
   500,000+

   Fulton
  DeKalb            665,865            4              Decatur           Public Defender
    Cobb            607,751            7              Marietta          Panel, Contract

  Clayton           236,517            6             Jonesboro               Panel
  Chatham           232,048            1             Savannah                Panel

 Richmond           199,775           10              Augusta        Panel, Public Defender
    Bibb            153,887            3               Macon            Panel, Contract
    Hall            139,277            9             Gainesville             Panel
 Dougherty          96,065             2              Albany               Contract
  Lowndes           92,115             2              Valdosta               Panel
    Floyd           90,565             7               Rome                Contract
  Houston           110,756            3               Perry         Public Defender, Panel
  Spalding          58,417             6               Griffin             Contract
  Bulloch           55,983             1             Statesboro              Panel

  Baldwin           44,700             8            Milledgeville            Panel

 Habersham          35,902             9            Clarkesville        Public Defender
  Toombs            26,067             8               Lyons               Contract

 McDuffie           21,231            10             Thomson               Contract

                                           5
                 Dodge            19,171               8              Eastman                    Contract




                                           CHAPTER 2
                                    THE GEORGIA COURT SYSTEM

        The Georgia court system is divided into 10 judicial districts and includes more than 800
individual courts, over 860 judges and over 500 magistrates. As of July 2002, there were 7
Supreme Court justices; 12 Court of Appeals judges; 188 superior court judges serving 49
circuits; 105 state court judges (62 full-time and 43 part-time) in 70 courts; 93 judges and 30
associate juvenile court judges in 159 juvenile courts; 159 probate judges in 159 courts; and 159
chief magistrates and 346 magistrates in 159 courts.4 In addition, there are approximately 415
judges serving 375 municipal courts plus 10 special courts in the state. Under Georgia's right to
counsel mandates, indigent defendants should be eligible for appointed counsel in all of these
courts.

           2.1     Jurisdiction

        The Georgia Supreme Court has appellate jurisdiction over cases involving constitutional
issues, title to land, validity and construction of wills, habeas corpus, extraordinary remedies,
convictions of capital felonies, equity, divorce, alimony and election contest. It also accepts
certified questions and certiorari from the Court of Appeals.

       The Georgia Court of Appeals has appellate jurisdiction over cases from lower courts in
which the Supreme Court has no exclusive appellate jurisdiction.

       Superior court hears jury trials and has general jurisdiction in civil law actions,
misdemeanors and other cases. The superior court has exclusive felony jurisdiction. It also has
exclusive jurisdiction over cases involving divorce, title to land and equity.

        State court hears jury trials and has limited jurisdiction over misdemeanors and traffic
cases. It holds preliminary hearings in felony cases and has unlimited jurisdiction over civil
actions except those cases within the exclusive jurisdiction of superior court.

           Juvenile court has limited jurisdiction over deprived, unruly and delinquent juveniles,

4
    See Your Guide to the Georgia Courts, prepared by the Administrative Office of the Courts.


                                                           6
and hears termination of parental rights cases. It also hears juvenile traffic cases. There are no
jury trials in juvenile court, and in some counties, superior court judges also serve as judges of
the juvenile court.

        Probate Court has limited jurisdiction in traffic and truancy cases in some counties and
exclusive jurisdiction in probate of wills, administration of estates, appointment of guardians,
cases involving issues of mental illness, involuntary hospitalization and marriage licenses. It
issues search and arrest warrants in certain cases and holds courts of inquiry. It also hears
miscellaneous misdemeanors. Jury trials are authorized in civil matters where the county
population exceeds 96,000 and the judge is an attorney.

        Magistrate court, which does not have jury trials, has limited jurisdiction in search and
arrest warrants, felony preliminary hearings, misdemeanors, county ordinance violations, civil
claims of $15,000 or less, dispossessories and distress warrants.

        Municipal Court hears traffic-related misdemeanors, city ordinance violations and holds
preliminary hearings in traffic-related felony cases. Most municipal courts do not have jury
trials. Recorder's Court has the same jurisdiction as Municipal Court.




                                                 7
                                  CHAPTER 3
             THE RIGHT TO COUNSEL AND INDIGENT DEFENSE IN GEORGIA


3.1       THE RIGHT TO COUNSEL IN GEORGIA

       The Sixth Amendment to the United States Constitution provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right. . . to have the Assistance of Counsel for his
defence."5 A body of U.S. Supreme Court case law, with Gideon v. Wainwright6 as its
centerpiece, clarifies that the federal constitutional right to counsel applies to state criminal
prosecutions through the Fourteenth Amendment’s due process clause and requires government
appointment of an attorney to represent a person who cannot afford legal representation in a
broad array of cases and proceedings.7

5
    U.S. CONST., amend. VI.

6
    372 U.S. 335 (1963).

7
  The federal right to appointed counsel for indigent defendants, where so desired, was first mandated for
defendants facing a sentence of death in trial cases. Powell v. Alabama, 287 U.S. 45 (1932). Gideon extended
that right to indigent defendants charged with a _serious_ crime, and later opinions extended the right to
additional cases and critical proceedings: any crime, including misdemeanor and petty offense cases, that actually
leads to imprisonment - Argersinger v. Hamlin, 407 U.S. 25 (1972); any crime, including a minor misdemeanor,
where defendant receives a suspended or probated sentence to imprisonment - Alabama v. Shelton, No. 00-1214
(May 20, 2002); direct appeals (in states that provide that process) - Douglas v. California, 372 U.S. 353 (1963);
custodial interrogation - Miranda v. Arizona, 384 U.S. 436 (1967); juvenile proceedings resulting in possible
confinement - In re Gault, 387 U.S. 1 (1967); post-indictment lineups - U.S. v. Wade, 388 U.S. 218 (1967) and
Gilbert v. California, 388 U.S. 263 (1967); critical stages of preliminary hearings - Coleman v. Alabama, 399
U.S. 483, (1969); certain probation and parole revocation hearings - Gagnon v. Scarpelli, 411 U.S. 778 (1973);




                                                         8
       The Georgia Constitution tracks the U.S. Constitution, providing that "[e][very person
charged with an offense against the laws of this state shall have the privilege and benefit of
counsel."8 Likewise, Georgia case law on the right to counsel closely tracks Gideon and its
progeny. Georgia case law exceeds federal mandates in some areas. For example, Georgia law
provides for the right to counsel in terminations of parental rights proceedings, and deprivation
and unruly cases.


3.2        INDIGENT DEFENSE IN GEORGIA




collateral attack (in limited circumstances) - Johnson v. Avery, 393 U.S. 483 (1969). There is no federal
constitutional right to counsel in state post conviction proceedings.

8
    GA. CONST., art. I sec. 1, ¶ XIV.




                                                       9
       Five years after Gideon, Georgia legislators enacted the Georgia Criminal Justice Act,
which placed the funding and operational responsibility for indigent defense on the shoulders of
counties.9 This approach to operating and funding indigent defense has led to substantial
inconsistency in the way indigent defense is provided, overseen and implemented in Georgia's
159 counties.

       In 1979, a decade after passing the Criminal Justice Act, the General Assembly enacted
the Georgia Indigent Defense Act, which created the Georgia Indigent Defense Council as a
separate agency within the judicial branch of state government.10 The Georgia Indigent Defense
Council was established to develop statewide indigent defense policy and promulgate proposed
guidelines, to be approved by the Supreme Court, providing for the operation of local indigent
defense systems. A major objective of creating such an entity was to do something the Georgia
Criminal Justice Act had failed to accomplish: provide for greater uniformity and overall
improvement in the provision of indigent defense services throughout the state.


9
  Local courts were given the responsibility for ensuring that counsel appointed to represent indigent
defendants are competent. Georgia Laws 1968, p. 999 § 1 provides:
         [N]o person may be assigned the primary responsibility of representing an indigent person unless he is
         authorized to practice law in this state and is otherwise competent to counsel and defend a person charged
         with a crime. Competence shall be determined by the court concerned at the first court proceeding after the
         assignment of counsel. . . .
Section 1., at § 4 states: “The county governing authority shall pay assigned attorneys the amounts prescribed
in this Code section from public funds available for the operation of the courts in the county.”
10
     See Georgia Indigent Defense Act, O.C.G.A. §17-12-32.




                                                        10
       Today, the Council has 15 members, all of whom are appointed by Georgia's Supreme
Court. The Council's membership includes one active member of the State Bar of Georgia from
each of the 10 judicial administrative districts, three non-lawyers selected from the state at-large,
and two additional members, one who is a member of a metropolitan governing authority and the
other who is a member of a non-metropolitan county governing authority.11

         Several years ago GIDC established an Advisory Committee to (1) groom potential
Council members and (2) forge high-level links between criminal justice agencies and GIDC.
The Advisory Committee was created after GIDC consulted with the Attorney General's Office
about its legality. The first member was former Chief Justice Harold Clarke, who continues to
serve on the Committee.12
3.3     THE GEORGIA INDIGENT DEFENSE COUNCIL

        As stated before, the Georgia Indigent Defense Council (GIDC) was established in 1979
as a separate agency within the judicial branch of State government to carry out the mandates of
the Indigent Defense Act, including the right to counsel and equal protection under the laws
throughout Georgia.

        The journey leading to the creation and eventual funding of GIDC was lengthy and is
told with great detail in A Brief History of the Georgia Indigent Defense Council, by Michael
Mears. It is important to recap portions of the story here, as it illustrates how difficult it has been
to effect change and improvement to indigent defense in Georgia.

      The State Bar has been pushing for statewide improvements to indigent defense in
Georgia for almost 40 years. In 1964, the Bar's Board of Governors created a Special Committee

11
     See O.C.G.A. §17-12-32.

12
   In June, 2002, the Advisory Committee members were: Former First Lady Rosalynn Carter; former Chief Justice
Harold Clarke; William A. ("Bill") Cooper, Director, Cobb County Chamber of Commerce; C. Andrew Fuller,
Liaison for Council of Superior Court Judges, Chief Judge, Northeastern Judicial Circuit; Carol Hunstein, Liaison
for Supreme Court of Georgia, Justice, Supreme Court of Georgia; Michael Light, Executive Assistant to the
Commissioner Georgia Department of Corrections; Orlando Martinez, Commissioner, Department of Juvenile
Justice; Marion T. Pope, Jr., Liaison for Georgia Court of Appeals, Presiding Judge, Georgia Court of Appeals;
Lawton E. Stephens, Liaison for Council of Superior Court Judges, Superior Court Judge, Western Circuit; Charles
J. Topetzes, Director of Paroles, State Board of Pardons and Paroles.




                                                       11
on Assistance to Indigent Criminal Defendants and instructed the Committee to study the
feasibility of establishing a statewide indigent defense delivery system. The committee
submitted its feasibility study to the Board in 1965, along with a draft of proposed legislation
entitled "The Defense of Indigents Act." The Board of Governors promptly adopted a resolution
approving the Defense of Indigents Act as a goal and urged its enactment by the Georgia General
Assembly.

         According to A Brief History of the Georgia Indigent Defense Council, the General
Assembly was persuaded in part by lobbying by district attorneys and superior court judges not
to pass the Defense of Indigents Act. However, pressure from the State Bar and the Younger
Lawyers Section led to passage in 1968 of the Georgia Criminal Justice Act. Still, by 1972, with
a substantially broadened mandate to provide counsel to indigent defendants having been
recognized by the U.S. Supreme Court (see footnote 7), the State Bar was even more insistent
that a statewide indigent defense system be created to ensure that effective representation was
provided in all indigent cases.

        In 1973, the Criminal Justice Committee of the State Bar conducted another feasability
study on the need for appointed counsel in criminal cases throughout the State. This study, which
was jointly funded by the State Planning Agency, a grant from the federal Law Enforcement
Assistance Administration (LEAA) and by the State Crime Commission, was intended "[t]o
develop a body of information which can be used by the legislature in its next session as it tries
to find the best solution to this problem for the State of Georgia."13 It is striking how similar the
findings in that 1973 study are to findings from our study in 2002. For example: "Standards of
indigency are not uniformly defined or applied throughout the State," . . . "very few counties are
spending an adequate amount of money for provision of counsel," . . . and "such critical matters
as when counsel is offered and how the issue of waiver is handled receive widely varying
treatment."14 The Survey of Indigent Defense Needs in the State of Georgia recommended that a
statewide system be created to address the problems in the county-administered system.

        Despite this extensive effort to review and document problems, the General Assembly
continued to rely on the Criminal Justice Act of 1968, which left responsibility for funding and
organizing indigent defense services solely with the counties. The State Bar was not
discouraged by the lack of response by the state legislature. The Bar created a private, nonprofit
organization called the Georgia Criminal Justice Council that would continue to pursue
implementation of a statewide indigent defense system. Working at first with grants from the
Department of Human Resources and State Crime Commission, the Criminal Justice Council
worked on developing a framework for a statewide delivery system as well as a plan for funding
such a system. Eventually, in order to qualify for state funding from the State Crime
Commission, the agency, through issue of an Executive Order, became a quasi-state agency

13
     A Brief History of the Georgia Indigent Defense Council, p. 9

14
     A Brief History of the Georgia Indigent Defense Council, p. 10


                                                          12
whose members were nominated by the State Bar and confirmed by the Georgia Judicial
Council. The entity was to administer state and federal grants to assist counties and judicial
circuits in carrying out the obligation of providing effective assistance of counsel to indigent
defendants in all cases and other proceedings where there was a possibility of incarceration.

        The Criminal Justice Council provided training to criminal defense lawyers and helped
develop a number of local indigent defense programs. Initially funded with grant money from
the State Crime Commission and the LEAA, state funding was progressively reduced. Also, its
efforts to create a truly statewide system remained stymied by resistance from district attorneys
and superior court judges who wanted to retain local control over indigent defense. The Georgia
Criminal Justice Council ceased to exist after the Georgia Indigent Defense Council was created
in 1979.

        The creation of GIDC did not herald immediate improvement to indigent defense in
Georgia. As soon as it was created, GIDC began drafting statewide guidelines. These guidelines
were critically important because, under the Indigent Defense Act, local programs have to
comply with the guidelines in order to qualify for state supplemental grants. Under the current
system, county compliance with the guidelines is the key to greater uniformity in the provision
of indigent defense services in Georgia. Before the Guidelines could be adopted by the Supreme
Court, under the Indigent Defense Act, they had to be reviewed by the State Bar, Council of
Superior Court Judges of Georgia, Council of Juvenile Court Judges, the State Court Judges and
the Prosecuting Attorneys Council. The guidelines encountered protracted resistance over
familiar territory: loss of local control replaced by "a central bureaucratic agency with dictatorial
power and absolute control over indigent defense in Georgia."15 They were not adopted by the
Supreme Court until 1989.

        GIDC's difficulties were not confined to getting its guidelines adopted by the Supreme
Court. Its very livelihood was at risk for a decade due to inadequate funding. Funding for GIDC
trickled to nothing by 1981, when the LEAA was de-funded and state funds for the agency were
eliminated. The program closed its office from 1981 to 1989. When funding was restored, it
was paltry: $1,000,000 in state funds to assist local indigent defense programs.

3.4     FUNDING FOR INDIGENT DEFENSE IN GEORGIA

        Today GIDC is funded with three primary sources of revenue. The first and largest
source is a state general fund appropriation, which is used to fund the Grants to Counties
program. GIDC is permitted by statute to use 10% of the state Grants to Counties funding for
overhead, although it has never done so. A separate state appropriation funds the Multi-County
Public Defender. Since 1992, GIDC has received funds from a second revenue source, the State
Bar's Interest on Lawyers Trust Account (IOLTA), to pay for staff and overhead: IOLTA funds

15
  A Brief History of the Georgia Indigent Defense Council quoting a 1979 memorandum by Judge George A.
Horkan to Judge Cloud Morgan, p. 35.


                                                   13
are used as the organization's operating budget. A third revenue source is the Clerks and Sheriffs
Fund. GIDC is the sole recipient of revenue from this fund, which consists of interest generated
by accounts in which sheriffs are required to deposit all cash bonds and in which the clerks of
state, superior, magistrate and probate courts are required to deposit all funds paid to the registry
of the court. The Clerks and Sheriffs Fund revenue is allocated to counties in the same formula
fashion as the state Grants to Counties (this formula is discussed in Section 3.6). GIDC is also
authorized to keep 10% of this fund for overhead but has never done so. In addition, GIDC
receives a state appropriation that partially funds its Improvement Grants program. In fiscal year
2002 the state legislature appropriated $237,935 for this program and GIDC supplemented this
appropriation with funds from its operating budget.

        Table 3-1 provides information on total indigent defense expenditure – state, county,
IOLTA and Clerks and Sheriffs Fund – in Georgia between fiscal year 1992 and 2002 for the
counties that applied for state grants. Table 3-2 provides information on total and average
county expenditures for indigent defense made by the counties that applied for state grants in
Georgia over the same period. (County expenditures for indigent defense are reported to GIDC
on a calendar year basis. GIDC's funds for indigent defense are provided in a fiscal year format,
thus Table 3-1 provides information in a combined calendar year/fiscal year format.) Table 3-1
shows that in FY 2001, state funds (Grants to Counties and Multi-County Public Defender)
accounted for $5,893,227, or 11.6%, of total funding for indigent defense in Georgia.

        The number of counties participating in the state grants program has fluctuated somewhat
over the years. For example, 152 – all but seven – counties applied for FY 2002 funds. In the
previous year, only 136 counties applied for State Grants to Counties funds. There are no data
available on indigent defense expenditure from counties that do not apply for grant funds. Thus,
overall indigent defense county expenditure information for calendar 2000 ($43,545,814) seems
significantly higher than in calendar 1999 ($40,591,424). That is somewhat misleading, as the
county expenditure data for 1999 omitted 16 counties that were included in 2000. Even more
counterintuitive, according to Table 3-2, 140 counties spent less money on indigent defense in
calendar 1998 ($36,880,228) than 136 counties spent in calendar 1999 ($40,591,424). In
calendar 2000, 152 counties spent on average $286,486 on indigent defense. Table 3-1 shows
that the best estimate of total expenditure on indigent defense in Georgia for fiscal year 2002 in
the 152 counties for which expenditure information is available was $52,968,892.




                                                 14
                                                        Table 3-1
                                      Total Indigent Defense Expenditure in Georgia
Year and Number of                Local Funding                             State Funding                     Other         Total Indigent
Counties                                                                                                     Funding        Defense
                                                                                                                            Funding*

                 # of                         Clerks and        Grants to       Multi-       Improvement       GIDC
                            Total County                                                       Grants
               Counties                        Sheriffs         Counties        County                       Operating
                            Expenditure16
               Reporting                      Supplement                        Public                        Funds
  Year                                                                         Defender                      (IOLTA)            Total

CY90-FY92         119        $12,452,004         $0.00          $900,000           $0            $0          $335,620       $13,687,624
CY91-FY93         113        $15,627,010         $0.00         $1,004,700          $0            $0         $1,028,484      $17,660,194
CY92-FY94         110        $17,241,692       $393,876        $1,500,000          $0            $0         $1,140,624      $20,276,192
CY93-FY95         111        $21,068,244       $674,626        $2,500,000      $467,550          $0         $1,063,907      $25,774,327
CY94-FY96         117        $25,000,000       $929,857        $2,500,000      $500,000          $0         $1,276,625      $30,206,482
CY95-FY97         136        $30,209,299       $674,626        $2,500,000      $500,000          $0         $1,460,720      $35,344,645
CY96-FY98         141        $31,499,299       $1,183,158      $3,500,000      $784,487          $0         $1,625,893      $38,592,837
CY97-FY99         143        $33,790,717       $1,357,796      $4,000,000      $814,709          $0         $1,981,939      $41,945,161
CY98-FY00         140        $36,880,228       $1,420,637      $4,340,000      $900,000          $0         $1,854,679      $45,395,544
CY99-FY01         136        $40,591,424       $1,860,250      $4,890,000      $1,003,227        $0         $2,255,522      $50,600,423
CY00-FY02         152        $43,545,814          N/A          $5,990,000      $1,032,000     $237,935
                                                                                                 $52,968,892$2,163,143
      *Total funding figures reflect data from the number of counties reporting for each year. So,
      for example, in FY 2002, total expenditure of $52,968,892 was spent in the 152 counties that
      reported expenditure information.




         16
           The indigent defense expenditure paid by the counties is recorded by calendar year. All other indigent defense
         expenditures are budgeted and paid on the fiscal year (June-July).




                                                                 15
                                          Table 3-2
 Total and Average County Indigent Defense Funding for Counties Applying to GIDC
                            Calender Year 1991-2000
Calender Year   # of Counties Reporting   Total County Expenditure   Average County Expenditure

   1990                  119                   $12,452,004                   $104,639
   1991                  113                   $15,627,010                   $138,292
   1992                  110                   $17,241,692                   $156,743
   1993                  111                   $21,068,244                   $189,804
   1994                  117                   $25,000,000                   $213,675
   1995                  136                   $30,209,299                   $222,127
   1996                  141                   $31,499,299                   $223,299
   1997                  143                   $33,790,717                   $236,288
   1998                  140                   $36,880,228                   $263,430
   1999                  136                   $40,591,424                   $298,466
   2000                  152                   $43,545,814                   $286,486




                                             16
        GIDC's mission is to “promote justice and fairness to all indigent persons charged with
crimes or who are parties in a juvenile action, by providing fiscal and professional support that
ensures effective indigent defense systems and high quality legal services in all courts, as
mandated by the laws and constitutions of the United States and Georgia.”17 While the
organization has a laudatory set of goals and takes on a number of activities and projects, its
statutorily prescribed functions and duties are limited to four:

           1. to administer funds provided by the state and federal governments to support local
           indigent defense programs;
           2. to recommend uniform guidelines within which local indigent defense programs will
           operate;
           3. to provide local programs and attorneys who represent indigent persons technical and
           research assistance, clinical and training programs, and other administrative services; and
           4. to prepare budget reports and management information required for implementation of
           the Georgia Indigent Defense Act.18

Notably absent from this list is any express authority to intervene to improve indigent defense
services at the local level.19

        GIDC administers three grant programs: the Grants to Counties program, an Improvement
Grants program, and a Discretionary Grant program. The Grants to Counties program is the
Council's primary funding program, offering supplemental state funds to applicant counties based
on a formula taking into consideration population, indigent defense caseloads and indigent
defense expenditures. In FY 2001, GIDC made grants to 152 of Georgia's 159 counties with
$4.89 million in state appropriated money and $1.86 million in interest gathered on Clerks and
Sheriffs trust accounts. In other words, in FY 2001, roughly 11.6% of all funding for indigent
defense came from funds distributed through formulae.

       The Improvement Grants program offers "seed" money for new initiatives that are
undertaken to make significant improvements to local indigent defense delivery systems. The
program, which began in 2000, funds projects falling in seven program areas: early intervention,

17
     The Georgia Indigent Defense Council 2001 Annual Report, p. 19.

18
     See O.C.G.A. §17-12-33.

19
  As discussed later, the Supreme Court guidelines do grant GIDC the power to terminate funding for local indigent
defense programs that fail to comply with the guidelines.




                                                       17
caseload reduction, mental health speciality, public defender office enhancement, juvenile law,
technology and a "catch-all" category. In 2001, $408,000 in state and private funding was shared
among 43 counties.

        The Discretionary Grant program, begun in 2001, offers counties a one-time grant of
$20,000 for indigent defense. The funds are distributed to counties on a first come, first served
basis, and counties must demonstrate an urgent need for additional indigent defense resources.
There are no program area restrictions. Counties need not be receiving Grants to Counties funding
to participate in the Improvement Grants and Discretionary Grant programs. In 2001 two counties
shared the $20,000. Floyd County used its portion of the grant as part of the salary for a case
manager in the county jail and Whitfield County used its portion to help fund a public defender in
drug court.

       Among other tasks, the Georgia Indigent Defense Council's Governmental Relations
Division is responsible for administering the State Grants to Counties and Improvement Grants
programs. It also serves as liaison between members of the Indigent Defense Council and
members of the Georgia General Assembly on issues relating to funding for indigent defense and
advocacy on issues of importance to indigent defense. The division has four staff members: a
Division Director & Legislative Liaison, staff attorney, paralegal and an intern.


3.5    OTHER GIDC PROJECTS

       The Georgia Indigent Defense Council has several divisions that perform functions other
than administering grant funds to the counties.

       3.5.1   Multi-County Public Defender

         The Multi-County Public Defender was created as a division of GIDC by the General
Assembly of Georgia in 1992 to serve as a resource center for trial attorneys representing indigent
defendants facing a sentence of death. The program provides assistance in death penalty cases by
1) providing training and assistance to attorneys who have been appointed to represent defendants
charged with capital offenses; 2) serving as co-counsel to assist local appointed lead counsel in
the trial and direct appeal of death penalty cases; and 3) accepting appointment in a limited
number of cases to provide direct representation as lead counsel to individuals in death penalty
cases. In calendar year 2001, the Multi-County Public Defender provided direct representation or
consultative services in 84 cases in 38 different counties. The Multi-County Public Defender is
staffed by five attorneys, including the Multi-County Public Defender, four mitigation
specialist/investigators, one mental health specialist, one clerk, one tracking/statistics worker and
one administrative assistant.

       3.5.2 Mental Health Advocacy Division

       The Mental Health Advocacy Division monitors all cases in Georgia in which a defendant

                                                18
has been found not guilty by reason of insanity. The Division consults with local attorneys who
handled these cases at trial to monitor the individual's progress at the state hospital and to
maintain contact with the treatment providers. When appropriate, the Division's attorneys will
directly represent these individuals. The Division also works with local attorneys, mental health
professionals, hospital staff, courts and others in cases where defendants are found incompetent to
stand trial or where they have mental illness and are housed in penal institutions. Staff for the
division consists of three attorneys, including the division director, one paralegal and two social
workers.

          3.5.3    Juvenile Advocacy Division

         The three-person (director, staff attorney and paralegal) Juvenile Advocacy Division
provides training, support and consultation to attorneys representing clients in juvenile court
cases involving delinquency and unruliness, deprivation and termination of parental rights, and in
superior court cases involving juveniles who are charged as adults. The division also compiles
statistics and publishes a quarterly report on juveniles charged as adults under Senate Bill 440, the
“School Safety and Juvenile Justice Reform Act of 1994,” codified at §15-11-5(b)(2)(A).

          3.5.4    Appellate Division

        The very small appeals division (a director and an intern) provides advice, consultation
and assistance for court-appointed trial attorneys who wish to preserve issues for appeal; assists
court-appointed attorneys who are working on appeals; submits amicus curiae briefs in cases
involving novel or interesting issues that are important to indigent defense; assists other GIDC
divisions in appellate litigation; and assists the Professional Education Division in preparing
appellate training programs.

          3.5.5    Professional Education Division

        In addition to housing the three case-specific divisions, each year GIDC provides dozens
of seminars and workshops to indigent defense attorneys throughout Georgia. In addition to
organizing and sponsoring these training sessions, the Professional Education Division publishes
handbooks to assist indigent defense lawyers with specific issues relating to their practice. The
division has four staff members: a director, a division coordinator, a publications coordinator and
a communications coordinator.


3.6       PARTICIPATION IN GRANTS TO COUNTIES FUNDING

       In FY 2002 (July 1, 2001-June 30, 2002), 152 of Georgia's 159 counties applied for and
received state money under GIDC’s Grants to Counties program for local indigent defense
programs.20 Of the 152 counties, 20 have full-time public defender programs and use a contract

20
      The seven counties that did not apply for FY 2002 GIDC Grants to Counties funding are Catoosa, Chattooga,

                                                         19
and/or panel program to handle conflict of interest and overflow cases. Fifty-nine counties use
contract defender programs solely or as the primary provider with panel attorneys providing
counsel for the remaining cases. Another 73 counties use panel attorneys as the primary provider
of representation to indigent persons in criminal and/or juvenile proceedings, with smaller
contract or public defender programs providing representation in the remaining cases.

        The Georgia Constitution states that no person in Georgia shall be prosecuted without "the
privilege and benefit of counsel."21 Local indigent defense programs that receive state funds are
expected to provide legal representation for indigents in all felony cases and in those
misdemeanor cases in which indigents are guaranteed the right to counsel in the superior, state,
and magistrate courts; all actions and proceedings resulting from a finding of not guilty by reason
of insanity; and all actions and proceedings within the juvenile courts of Georgia in which a
person is entitled to legal representation under the Constitution of the United States or the
Constitution and laws of the State of Georgia, including but not limited to actions involving
delinquency, unruliness, incorrigibility, deprivation, and termination of parental rights.22

       A local indigent defense program may operate on behalf of a single county or in a
combination of counties within a judicial circuit. In order to receive state grant money, a local
indigent defense system must establish a tripartite committee, so-called for its membership
representatives of three entities (the superior court, the county executive branch and the local bar
association). Section 17-12-37 of the Georgia Code specifies the appointment process and

Dade and Walker of the Lookout Mountain Circuit, Jones and Putnam of the Ocmulgee Circuit and Jackson County
of the Piedmont Circuit. The number of counties applying for state funds varies from year to year. In FY 2001, for
example, 23 counties did not apply for state funds.


21
     GA. CONST., art. I sec. 1, ¶ XIV.

22
   See O.C.G.A. §17-12-38.1. In Georgia, a felony is a crime punishable by death, imprisonment for life, or
imprisonment for more than 12 months. O.C.G.A. §16-1-3. A misdemeanor is punishable by a fine not to exceed
$1,000 and/or confinement in a county inmate facility (e.g., jail) for a term not to exceed 12 months. O.C.G.A. §17-
10-3. There is also a misdemeanor category of a “high and aggravated nature” where punishment can consist of a
fine up to $5,000 and/or confinement in a county inmate facility for up to 12 months. O.C.G.A. §17-10-4.




                                                        20
composition of tripartite committees:

          If the committee acts for one county alone, then that committee shall be
          composed of: (1) at least one person to represent the county governing authority,
          that person being appointed by the county commission chairman or sole
          commissioner, (2) at least one person to represent the superior court, that person
          being selected by the chief judge of the judicial circuit within which that county
          lies, and (3) at least one person to represent the county or local bar association (as
          listed in the most current records of the State Bar of Georgia), that person being
          appointed by the bar association president.
          If the committee acts for a combination of counties within a judicial circuit to
          propose the establishment of a state funded indigent defense program to operate
          in such a combination of counties, then: (1) a majority of the chairmen or sole
          commissioners shall appoint at least one person to represent the county governing
          authorities involved, (2) the chief judge of the superior court of that circuit shall
          appoint at least one person to represent the court; and (3) a majority of the
          presidents of the local bar associations involved shall appoint at least one person
          to represent the bar associations.

Judges, prosecutors and public defenders are forbidden from serving on the committee.23 The
committees may be larger than three members, as long as the bar, bench and county have equal
numbers of representatives. In the counties we visited, the committees ranged in size from three
to six to nine members.

        To qualify for state grant funding, the tripartite committee must submit a proposal, or
plan, to GIDC requesting state funds. The plan for the local indigent defense program must
comply with the guidelines approved by the Supreme Court and must provide for:

          (1) The independence of counsel;
          (2) Reasonable early entry by counsel into a case;
          (3) A procedure to determine whether or not persons seeking assistance are
          eligible as indigents;
          (4) A procedure for determining that attorneys representing indigents are
          competent in the practice of criminal law; and
          (5) A rate of compensation and schedule of allowable expenses to be paid for
          indigent defense services.24

         Although local indigent defense programs receiving state money are expected to establish
tripartite committees and to administer indigent defense programs under these five guidelines, the

23
     See O.C.G.A. §17-12-37.

24
     See O.C.G.A. §17-12-38 (b) and (c).


                                                  21
Georgia Code expressly recognizes the inherent power of judges to appoint counsel to represent
indigent defendants and to order compensation and reimbursement from county funds in
individual cases as the proper administration of justice may require. O.C.G.A. §17-12-44.

        The Guidelines of the Supreme Court of Georgia for the Operation of Local Indigent
Defense Programs25 are a laudable set of standards. They address many of the provisions found
in the major national standards on indigent defense prepared by the American Bar Association
and the National Legal Aid and Defender Association.26 Unfortunately, we found that, for a
number of reasons, the guidelines are seldom followed to any substantial degree.


3.7     TRIPARTITE COMMITTEES

        The model of the tripartite committee seems like a sound structure for what many
interviewees expressed they wanted: local control and input into indigent defense with state
funding and standards. In practice, however, the operation of tripartite committees varies
significantly from county to county and in many counties the model fails to assure that quality,
uniform legal representation is provided to indigent defendants and juveniles. The model of state
grant-making and local control has not worked in part because of the tolerated variability in the
composition and roles of tripartite committees. In other cases, accountability and control don't
exist due to a lack of interest and concern about indigent defense on behalf of the tripartite
committee members.

       We found that some of the requirements set out in the Georgia Indigent Defense Act go
ignored or unfulfilled. For example, the tripartite committee's members are not supposed to
include judges, prosecutors or public defenders. In one county we visited, the chief judge of the


 25
   Approved and adopted by the Supreme Court of Georgia November 4, 1999, replacing guidelines adopted in 1980
 and amended in 1985, 1989, 1998 and 1999.

 26
     See ABA Standards for Criminal Justice (Chapter 4, Prosecution Function and Defense Function (3d ed. 1993)
 and Chapter 5, Providing Defense Services (3d ed. 1992) (program standards)), National Legal Aid and Defender
 Association Performance Guidelines for Criminal Defense Representation (1994) (attorney performance standards),
 the National Legal Aid and Defender Association Standards for the Administration of Assigned Counsel Systems
 (1989) (qualification standards), Institute of Judicial Administration-American Bar Association Juvenile Justice
 Standards Annotated: A Balanced Approach (1996) (standards relating to children charged as youthful offenders).




                                                               22
superior court is not simply on the committee, he serves as its chair. In another county, although
the chief judge is not on the committee, we were told by multiple interviewees that he is the
"invisible hand" behind indigent defense policy in the county: whatever he wants is what
happens. The effect is to strip the tripartite committee of a policy-making role.

        Supreme Court Guidelines 3.1 and 3.2 require that a tripartite committee satisfy itself that
the public defender, contract attorney and/or members of the local panel program are competent,
and that committee members should observe the performance of the indigent defense attorneys.27
Despite these standards, tripartite committee members in most counties we visited do not engage
in effective monitoring of the contract, panel or public defender system in their county. Their role
is often seen as one limited to reviewing vouchers and reviewing attorney grievances. Members
of tripartite committees are professionals who volunteer their time. They are not given resources
to hire staff. Without assistance from staff it would be difficult for tripartite committee members
to evaluate indigent defense attorneys’ performances.

         In Dodge, Hall and Toombs counties, the indigent defense administrators are on the
tripartite committees (in fact, they serve as the chairperson). While not a violation of the Indigent
Defense Act, this practice raises questions of independence, as a prime role of tripartite
committees seems to be to review and cut vouchers when they exceed a certain threshold. (In
Cobb County, current panel members serve on the tripartite committee, but recuse themselves
from decisions regarding their vouchers when caps are exceeded.)

         In Baldwin County, there is no indigent defense administrator. Day-to-day management

27
     3.1 The Public Defender or Contract Lawyer Selected shall be Competent and Effective in His/Her Role
          In selecting a public defender or contract lawyer the local committee should satisfy itself that the lawyer
          selected is competent, meaning:
          (a) Has an adequate educational background;
          (b) Has demonstrated ability to perform competent trial work and the administration of an office;
          (c) He or she conducts their professional work in an ethical manner;
          (d) Is a member in good standing of the State Bar of Georgia.
          The committee shall observe the performance of the public defender or contract lawyer in order to be
          assured that he/she is performing the role effectively.

          Indicators of performance are:
          (a) Early entry into representation of indigents;
          (b) Vigorous and independent representation of the client;
          (c) Participation in training activities and continuing legal education;
          (d) Effective and reasonable use of time and resources.

          3.2 Competence and Effectiveness of Attorneys in a Local Panel Program
          The local committee shall select only competent attorneys as panel attorneys and their effectiveness
          on the job should be monitored and assessed. Indicators of performance are:
          (a) Early entry into representation of indigents;
          (b) Vigorous and independent representation of the client;
          (c) Participation in training activities and continuing legal education;
          (d) Effective and reasonable use of time and resources.


                                                        23
of the program is done by the clerk of the superior court. As already mentioned on the preceding
page, the superior court judge is on the tripartite committee, in direct violation of O.C.G.A.
§17-12-37. Tripartite committees are required to meet monthly or semi-annually. We were told
the tripartite committee in Baldwin County seldom if ever meets. Oversight of indigent defense,
including determination of attorney pay in individual cases, is done by the judges.

        There is no requirement that tripartite committee members all be lawyers, and the
committees in many counties include non-lawyers. The county's representative on the committee
in Cobb County, for example, has always been its budget analyst who handles indigent defense,
which, as a budget item, falls under the judiciary. Having a committee member who is familiar
with the county budget process has reportedly worked well, particularly in making budget
requests. Similarly in Fulton County, the county's representatives on the 6-member committee
are the Assistant County Manager and the Director of Finance. However, panel attorneys in a
couple of counties complained that since the tripartite committee members were not all lawyers,
and sometimes the committee included no defense attorneys, the committees had very little
understanding of what it meant to represent criminal defendants. Some attorneys felt the
committees often drastically cut vouchers with little understanding of the nature of criminal
defense work. Certainly one of the roles of the tripartite committee members - to observe and
evaluate attorney performance - is inappropriate for laypeople, as they cannot effectively
determine if a lawyer is legally competent or evaluate the quality of representation provided.

       Finally, as a general rule, we found that tripartite committees typically do not serve as
voices or advocates for local indigent defense programs.


3.8     PERCEPTIONS OF GIDC

        Outlined below are a number of themes and perceptions of GIDC that emerged in our site
work.

Supplement or Supplant?

        In some counties interviewees suspected that GIDC money supplants, rather than
supplements, county funds for indigent defense. That is, the counties do not use the state funds to
enhance indigent defense services beyond the county’s expenditures, but rather use the state funds
to “repay” the county for already expended funds. The funds go to the counties without any
requirement that they be placed in a special account, and there is no requirement that the funds be
used in a particular way.

       Acknowledging this practice, the chief public defender in Houston County has developed
a way to call to the county’s attention the fact that the state money is intended to be used for
indigent defense. She has asked that GIDC mail the grant checks to her rather than the county.
This way she can hand deliver the check to the Chair of the County Board of Commissioners and
personally remind him of any promised budgetary items, such as a new computer.

                                                24
Role of the Executive Director

         The perceived effectiveness of the current Executive Director28 varied widely amongst
interviewees. Some people, particularly those who favor local control over a statewide system,
criticized him for "telling the counties what to do" when the state grant funds comprise such a
small percentage of overall funding for indigent defense. Some people criticized the personal
style of the current director in pressing issues and advocating for improvements as too brusque.
Still others praised him for making strides in a most difficult job.

Frustration Over Application Process

       People in a number of counties told us they feel the application process for state funds is
overly burdensome, given the relatively small percentage of funds for indigent defense provided
through the state grants. Applicants must complete a form requesting information on caseload,
funding and a description of the local indigent defense system. If contract attorneys are used,
applicants are asked to attach a copy of the contracts.

        Some of this frustration in small rural counties was related to resistance to GIDC
"interference" in local practices. "We are a small rural community and we do things differently
from Atlanta" was an oft-heard comment.

Makeup of the Council

        Many people we spoke with felt that the composition of the Council is not optimally
situated for effectiveness with the General Assembly. We heard several suggestions on possible
changes to the makeup of the Council to increase its effectiveness. It was suggested that the
Council include state legislators, criminal defense lawyers from different sections of the state and
county government officials.

State Grants to Counties Funding Formula




28
     At the time of our study, the Executive Director was Michael Shapiro.




                                                        25
         A number of people expressed doubts about the fairness of the formula used by GIDC to
distribute state grant funds. The actual formula is found in Section 17-12-36(b): “At least 90% of
all state appropriated funds shall be distributed by the council to participating counties on an
equitable basis, based on judicial administrative district and judicial circuit population, indigent
criminal caseloads, and previous year expenditures for the provision of defense services at the
local level.”29 Despite this requirement, some interviewees felt the formula was not transparent:
it may be administered equitably, or it may not.

        Certainly a look at GIDC's own county-by-county data on the percentage of state funds for
local indigent defense programs can prompt questions. While on average state Grants To
Counties money comprised 10% of the total expenditure for local indigent defense programs in
FY 2002, the figures range from single-digit percentages to percentages as high as 35% - 121% of
total expenditures on indigent defense.30 (See Georgia Indigent Defense Council Grants to
Counties Subsidy Program Award of State Funds to County for Fiscal Year 2002 (July 1, 2001 -
June 30, 2002) in the GIDC 2001 Annual Report, p. 77, in Appendix A.) Part of the explanation
for the disparity is found in the same table, which displays average cost per resident figures. The
average indigent defense cost per resident in the counties with high state funding is much lower
than in other counties where the percentage of state funding for indigent defense is closer to the
statewide average.

        The funding approach raises other questions. For example, the formula does not take into
consideration how well local programs are complying with the Supreme Court Guidelines.
Should GIDC be heavily subsidizing indigent defense in a county such as Dodge County, where
state funds constituted 46% of total funding for indigent defense in fiscal year 2002? A recent
series by the Atlanta Journal Constitution exposed years of indigent defense services that did not
comply with the letter or spirit of the Guidelines. (See Chapter 7, Who is the Voice for Indigent
Defense in Georgia? below.)

"No Teeth"

29
   Guideline 4.2 expresses the same formula: “A minimum of ninety per cent of the funds provided the Council by
the State Legislature will be distributed equitably among all participating programs based . . . on a three-part formula
giving equal weight to the county's population, the county's indigent defense case load, and the county's most recent
(fiscal or calendar) year expenditures for indigent defense.”

30
   For example, in Marion County, the FY 2002 award of state funds is listed as $1,894.31 while the total CY 2000
indigent defense expenditure is listed as $1,561.00.




                                                         26
       Under Guideline 5.3, GIDC has the power to terminate funding for local indigent defense
programs that it finds are failing to comply with the guidelines or to fulfill the duties of its
agreement with GIDC. Before termination can be completed, the local tripartite committee may
request to appear before the Council, and the Supreme Court of Georgia has final authority over a
decision to terminate.

        Despite this power, in recent years, GIDC has not turned down any county that applies for
funds. We repeatedly were told GIDC “has no teeth;” it does not de-fund counties it finds are not
providing adequate indigent defense services. GIDC continues to authorize state grant funding
for counties it feels are not adequately performing. GIDC has on occasion called attention to what
it perceives as inadequate performance by writing letters to administrators of the local programs.
The result in some instances has been strained relations between GIDC and the local
administrators rather than constructive steps to address the situation. GIDC, we were told, is
reluctant to terminate state funding of local programs in part because it fears political fallout or
possible complaints from judges and other local people to the General Assembly. It is also
reluctant to refuse funding to counties that submit applications that fail to substantially meet the
guidelines, as GIDC's primary goal is to improve indigent defense. Withholding supplemental
state funds is not seen as furthering that goal.

Case Counting and Definition of a Case

        Case counting, as reported to GIDC, is totally unreliable. The total number of state and
superior court cases (indigent and non-indigent) reported to GIDC frequently includes traffic
cases, most of which are not eligible for court-appointed counsel. There is no centralized source
of data in Georgia on the total percentage of criminal defendants who get appointed counsel.
Because there is no reliable source of data on indigent defense caseload in Georgia, there is no
way to validate what is being reported (or omitted) by the counties in their applications for state
grant money.

       Further, there is no uniform definition of “case” used by courts, counties or indigent
defense programs in Georgia. The primary source of data on indigent defense caseload in
Georgia is the collection of applications GIDC receives for its Grants to Counties program. The
application asks for indigent case counts. Applicants are told a case is “a single defendant
charged with one or more COUNTS arising out of a single event or a series of related events and
which is disposed of as a single unit.” The form requests data on the number of cases where
counsel was provided in state, superior, probate, magistrate, or juvenile court, by type of case and
by provider: public defender, appointed attorney and contract defender. In addition, the form
requests the total number (indigent and non-indigent) of state and superior court cases for the
same period, and the total number of juvenile cases.

       In theory, the total number of state, superior and juvenile cases provided in the GIDC
application should be the same as the total number of cases reported by the Georgia
Administrative Office of the Courts. However, some courts in Georgia use a different definition

                                                27
of a case than GIDC uses. In addition, various courts use different definitions of a case, making it
virtually impossible to analyze the accuracy of caseload data reported by any source.31

        Some data reported to GIDC by local indigent defense programs are incomplete, including
case appointment data only for certain case categories while excluding other categories. The
reasons for this problem vary. In some counties, for example, indigent defense case data was
provided for superior court cases but not for state court cases either because the person
responsible for completing the application had no contact with indigent defense in state court or
because they did not track the numbers at all or accurately enough. In some counties, such as
Bibb and Toombs, the tripartite committees do not oversee indigent defense representation in
state court, thus have no misdemeanor data to report. It is impossible to get an accurate
percentage of the number of adult criminal and juvenile court cases in which counsel is appointed
in Georgia as the data that exists is not reliable and some data is simply not available.

No Monitoring

        While local indigent defense programs are expected to comply with the Guidelines
adopted by the Supreme Court to receive state grant money, there is no effective monitoring of
this compliance done at the local level, by GIDC or by the Supreme Court. GIDC lacks the
resources to effectively monitor indigent defense programs or to verify data reported by the
administrators in 159 counties. Presumably, such a process would require staff who are able to
travel to each county. Whatever is submitted in the applications is accepted at face value.

       Likewise, as mentioned previously, there is very little programmatic or attorney
performance monitoring done by tripartite committees.




31
   For example, in Volume 3, Issue 1 of the Research Review of the Administrative Office of the Courts, which
contains caseload data from Georgia courts for 2002, some state courts’ caseload counts are for defendants, while
others are for charges. Likewise, most juvenile court data represents the number of children, but some courts provide
data on number of charges. In Fulton County, no caseload data on state court misdemeanors were reported to the
AOC.




                                                        28
                                    CHAPTER 4
                  CHARACTERISTICS OF DIFFERENT DELIVERY SYSTEMS

        As already mentioned, in order to participate in the state Grants to Counties program, the
Supreme Court guidelines require tripartite committees to develop a local plan for providing
representation to indigent defendants in felony and misdemeanor cases.32 Tripartite committees
may establish "a public defender system, a panel of private attorneys, a legal aid and defender
society, a contract system or a combination of the above" as the delivery system.33

        In four of the 19 counties we visited (Fulton, DeKalb, Habersham and Houston), a
full-time public defender program is the primary provider of indigent defense services. In six
counties (Dodge, Dougherty, Floyd, McDuffie, Spalding and Toombs), contract defenders are the
primary providers of indigent defense services and in another six counties (Clayton, Chatham,
Hall, Lowndes, Bulloch and Baldwin) these services are provided by panel lawyers. The other
three counties have mixed delivery systems. In Cobb County, panel attorneys represent indigent
defendants in adult criminal proceedings while contract attorneys represent children in juvenile
court. In Richmond County, panel attorneys represent indigent defendants in felony proceedings
while so-called “public defenders” represent defendants in state court and juvenile court. (The
attorneys work for a fixed annual figure but without support staff, such as investigators or
secretaries, so they should more appropriately be called "contract" defenders.) We were told that
the "public defenders" are used in state and juvenile court because they are less expensive than
panel attorneys. The attorneys "move cases," and the cases are not complex. In Bibb County,
contract defenders are used for drug court, probation revocations, juvenile court, appeals, bond
hearings and preliminary hearings, and panel attorneys cover all other cases.

       Most of the indigent defense systems we reviewed had an indigent defense administrator
who was responsible for the day-to-day functioning of the local program, such as seeing that
screening is conducted and appointments of cases are made to panel attorneys, and completing the

32
  The guidelines do not expressly mention juvenile cases but we understand the intent is that the guidelines also
cover juvenile cases.

33
     Guideline 2.2 Method of Providing Counsel
          The local governing committee shall propose to the Council a plan for a local indigent defense program,
          either -- a public defender system, a panel of private attorneys, a legal aid and defender society, a contract
          system or a combination of the above to provide adequate legal defense for indigents accused of felonies, or
          misdemeanors.




                                                          29
GIDC Grants to Counties application each year. There was a wide range of different types of
individuals who filled this role. In one judicial district visited, the district court administrator –
who serves as the chairman of the tripartite committee in most of the district's counties – is the
indigent defense administrator. In another county, the public defender is the indigent defense
administrator. In several counties, the court administrator or his delegate filled the role. In one
county an office manager with the public defender program was the administrator. And in still
other counties indigent defense administrators were individuals hired by the county to oversee
indigent defense. Sometimes the indigent defense administrator oversaw a staff of people who
interviewed defendants for indigency.

       The following section discusses our observations of the various programs visited.

4.1    PANELS

        As of fiscal year 2001, 73 of the 152 counties receiving state grant money use panel
attorneys as the primary provider of representation to indigent persons in criminal and/or juvenile
proceedings, with smaller contract or public defender programs providing representation in the
remaining cases. In addition, counties that use a contract or public defender system as their
primary means of representing indigent defendants also use panel attorneys to handle conflict of
interest or overflow cases.

       4.1.1   Composition

               4.1.1.1 Mandatory Participation

       Several counties we visited required all attorneys in the county (with some exceptions) to
accept court appointments to represent indigent defendants.

       Under the local plan in the Northeastern Judicial Circuit, which includes Hall and Dawson
counties (we visited Hall County), all active lawyers (with certain exceptions) must serve on the
superior court panel every other year. Practicing attorneys who have a conflict (e.g., they are a
prosecutor) are exempted. All other attorneys in Hall County are expected to participate until age
65.

         In Lowndes County, all lawyers must serve a mandatory five years on the superior court
panel. Thereafter, if the attorney wants to practice criminal law, he or she must stay on the panel.
 If an attorney wants to practice only civil law, he or she can withdraw from the panel after the
mandatory five year period. However, if the civil law practice includes any in-court appearances,
the attorneys must participate on the panel in order to appear in court.

        Likewise in Bibb County, all practicing attorneys must serve on the panel system for at
least 5 years. Brand new attorneys, with no criminal experience, are appointed to felony cases.
Many of these attorneys have little interest in practicing criminal law. (One panel attorney who
has a criminal practice in Bibb County told us that because of the mandatory nature of the panel

                                                  30
system, personal injury attorneys are forced to take cases which are outside of their areas of
experience and they just plead these cases.)

        In Baldwin County, participation on the panel system is mandatory for all attorneys who
have been practicing in the county for less than ten years, whether they practice criminal law or
not. Only after the mandatory time period or on reaching one’s 62nd birthday can an attorney
resign from the list. In Baldwin County, as in other counties, the mandatory nature of the service
has caused much bitterness among attorneys who feel they have been forced into an area of work
they know nothing about and in which they are not interested. One attorney interviewed, for
example, described himself as a real estate lawyer three years out of law school. The extent of his
criminal law experience was a criminal law course in law school. Despite this level of
experience, he was appointed to represent a defendant in a rape case. The attorney told us that
“Philosophically, I would be on the other side,” but he was forced to accept the case. The
attorney went to the judge to express concerns that he did not have sufficient experience to try the
case, and the judge appointed an attorney with more criminal practice experience to assist him.

        A review of Georgia law reveals that the practice of requiring all attorneys in the county
to accept court-appointed cases is permitted. In Sacandy v. Walther,34 an attorney in Floyd
County, Georgia sought a declaratory judgment that the program by which superior court judges
then appointed attorneys to represent indigent defendants was unlawful and sought an injunction
prohibiting the judges from requiring her to represent any individual or incarcerating her for
refusal to participate in the program. (At the time, Floyd County had a mandatory panel program;
it now has a contract program.) Attorney Sacandy declined an appointment to represent a
criminal defendant, stating she was unqualified to do so as she was not experienced or interested
in criminal law. In addition, she said she could not afford to serve as uncompensated co-counsel.
The Georgia Supreme Court held that superior court judges had authority to appoint counsel to
represent indigent defendants. The court held that lawyers may be appointed to represent indigent
defendants only if those lawyers are competent but an attorney's lack of experience or interest in
criminal matters does not render her incompetent or otherwise exclude her from participation.
However, the court held that the program could not authorize appointment of counsel without
compensation, even under limited circumstances.

        Although mandatory panel membership offends no law, there is a real possibility that
mandatory court appointments will result in civil practice attorneys providing substandard legal
assistance to indigent defendants due to their inexperience and lack of interest in criminal law. In
our work studying indigent defense systems around the country, we have not encountered other
mandatory indigent defense panel programs where there is no mechanism for attorneys to opt out.
 Texas is the only other state where we have encountered several counties using mandatory
panels. Under so-called “buy-out” plans, instead of accepting court-appointed cases, Texas
attorneys may fulfill their obligation by making an annual contribution to the local indigent
defense program.

34
     413 S.E. 2d 727 (1992).


                                                31
               4.1.1.2 Voluntary Panel

        Indigent defense for felony cases in Clayton, Cobb, Chatham and Richmond counties is
provided by attorneys who volunteer to participate on the court-appointed case panels. Cobb
County uses panel attorneys for misdemeanor cases, but uses a contract system for juvenile court
cases. As previously mentioned, Richmond County uses panel attorneys for adult felony cases
and what it calls “public defender” programs for misdemeanor and juvenile cases representation,
but the “public defenders” should more appropriately be called “contract” defenders. All
representation -- felony, misdemeanor and juvenile court -- in Chatham and Clayton counties is
provided by panel attorneys.

       The panel program in Cobb County stood out from the others we encountered for a
number of reasons. Officials in this relatively wealthy county understand the function and value
of a well-run indigent defense system and provide substantial funding for it. Judges strongly
support the system. Experienced attorneys participate on the panel. The administrator of the
program is highly respected and has good relations with the court, county, tripartite committee
and panel attorneys.


       4.1.2   Standards, Guidelines, Training to get on Panel

       Among the counties visited, only one (Cobb County) has a panel in which attorneys must
both have minimum levels of experience and attend criminal law training before being placed on
various levels of the panel.35 While there is no annual criminal CLE requirement, Chatham
County also has several tiered lists that attorneys can join, based on their level of experience. In
Fulton County, there are no formal experience requirements, but tripartite committee members

35
   To be included on the various lists (misdemeanor, felony, capital and non-capital murder, direct appeal and
juvenile) of the Cobb County panel, attorneys must attend annual criminal law CLE seminars and meet
minimum levels of experience. For example, attorneys on the misdemeanor list must have engaged in the
criminal practice of law for one year prior to joining and must have served as lead or assisting counsel in at
least three misdemeanor trials. Felony attorneys must have five years experience in criminal defense or
prosecution and must have practiced criminal law for three consecutive years before joining the panel.
Further, they must have previously served as lead or assisting counsel in three felony trial cases. Attorneys
may move up on the list (e.g., misdemeanor to felony, felony to murder) by submitting a letter to the
Administrator that provides information regarding meeting the requirements for the desired list.




                                                    32
approve attorneys for placement on the various panels: misdemeanor, non-capital felony, capital
felony/death penalty and appeals. In most of the other counties, membership in the bar is all one
needs to become a member of the panel. In Richmond County, for example, there are no
minimum requirements to get onto the superior court panel. The indigent defense office assigns
new attorneys to simpler cases, such as theft by taking. Clayton and Hall counties have no
minimum experience levels for panel attorneys, but attorneys must have an office or live in the
county.

        While some interviewees in a couple of counties with panel programs felt strongly that
indigent defendants received high quality representation because of the caliber of defense
attorneys who serve on the panels, interviewees in many other counties raised questions about the
quality of representation provided. The panel program in Clayton County was harshly criticized
by judges, attorneys on the panel and a prosecutor for not having any quality controls. Nearly
every judge interviewed complained about the quality of representation provided by attorneys on
the panel. The most favorable judicial assessment of the quality of representation being provided
by court-appointed attorneys was that “most of the time, it's acceptable.” Other descriptions by
judges included: “C-,” “extremely low quality,” and “quality of representation overall stinks.”
An attorney from the district attorney's office confirmed these opinions, stating that the quality of
representation of indigent defendants was “piss poor,” and “not worth a damn.” One judge
recalled a case where an attorney failed to contact his client or appear for trial in a misdemeanor
after the defendant had sat in jail for 30 days. The judge complained to the indigent defense
coordinator who apparently indicated that a “slap on the wrist” was the appropriate remedy. The
judge did not agree. A common complaint among the judges was that defendants and judges
frequently found it difficult to locate attorneys because many of them do not truly have an office
in the county.

         Under the panel system, when no qualifications, training or prior experience are required
to get on the panel, attorneys can be ill-equipped to handle cases. In one county, a state court
judge told us that she sometimes "coaches" the less experienced attorneys. In another county, the
state court judge informed us that the panel attorneys have no training in how to handle cases
where the client is incompetent to stand trial or in how to find alternative treatment for these
clients.

       4.1.3   Monitoring

        Very little monitoring of panel attorney performance is done. Lowndes County has one of
the more formal systems seen: the panel attorneys submit monthly and quarterly status reports to
the indigent defense coordinator. Attorneys are also expected to return "client visitation cards"
indicating the time when they first meet clients who are detained pre-trial (Cobb County has a
similar program). Lowndes was one of the few counties visited where we heard that attorneys
have been removed from the list due to unsatisfactory performance. A grievance procedure is
used, whereby, after receiving complaints over an attorney's performance, the attorney is invited
to appear at a hearing and, if desired, witnesses and evidence are presented. (Rather than go
through a formal process of removing attorneys from the panel, we were told by a few judges in

                                                 33
other counties that they occasionally ask that certain attorneys no longer receive appointments to
cases in their courts.) A panel attorney in Richmond County told us he was pleased overall with
the panel system, but that there was a clear need for initial training of new panel members and
ongoing oversight of all members.

          4.1.4    Compensation

       The Supreme Court of Georgia's Guidelines for the Operation of Local Indigent Defense
Programs provide that panel attorneys should be paid no less than $45 per hour for out-of-court
work and $60 per hour for in-court work (Guideline 2.6). The Guidelines no longer set out
per-case caps: a November 1999 amendment eliminated suggested maximum per-case caps. The
1999 amendment also requires attorneys to submit itemized statements for payment and
reimbursement.
       The Guidelines require several factors to be taken into consideration when determining
the hourly rates: attorneys' hourly overhead, hourly rates in fee-paying cases for attorneys
handling similar work and practicing in the general geographic area where the appointment is
made, and the rate of inflation.

        Most of the counties that we visited that use a panel system have adopted the Supreme
Court's recommended hourly rates. However, most of these counties also have per-case caps for
various case types and/or events. For example, Chatham County pays counsel in felony,
misdemeanor and juvenile cases at the recommended rates of $45 per hour for out-of-court work
and $60 per hour for in-court work, but restricts per-case fees to an event-based schedule (plea,
open plea, dismissal, trial, etc.).36 Attorneys are paid based on the severity level of the case and
the outcome: the pay is more for an open-ended plea than for a straight plea.37 If an attorney
submits a voucher that exceeds the per-case caps, either the Tripartite Committee or a judge can
approve the payment.

        Bibb County's rate schedule exceeds the Supreme Court minimum guideline, paying
lawyers $50/hour for out-of-court work and $70/hour for in-court. However, the Bibb County
Tripartite Committee meets every couple of months to review all vouchers that exceed $500,

36
   Chatham County’s panel is divided into five levels based on the severity of various crimes. Level 1 includes all
misdemeanor cases. Level 2 includes auto theft, bad checks, criminal damage to property, credit card fraud/theft,
escape, firearm violations, forged prescriptions, forgery, gambling, habitual violator, interference with government
property, possession of tools, shoplifting, terroristic threats, theft by taking and VGSCA. Level 3 includes arson,
burglary, cruelty to children, enticing a child, incest, robbery-no weapon, sodomy and vehicular homicide. Level 4
includes aggravated assault, aggravated battery, child molestation, statutory rape, sale of controlled substance and
trafficking in controlled substance. Level 5 includes aggravated child molestation, aggravated sodomy, aggravated
sexual battery, armed robbery, kidnaping, murder, rape and voluntary manslaughter. Per-case caps are set out for
each of the various levels of the panel for plea, open-end plea, jury, appeal and revocations. For example, the cap in
a misdemeanor plea is $265 while the cap in a misdemeanor open-end plea is $350. The same two per-case caps in a
level 5 case are $1,050 and $1,200.

37
     In an open-end plea a defendant disagrees with the state but admits guilt and proceeds to a sentencing hearing.


                                                          34
which means that the processing for a significant number of felony case vouchers is held up
waiting for the tripartite committee to meet. We were told that if there is no need for review,
vouchers are processed in about two weeks. Court-appointed attorneys in Bibb County told us
that a significant percentage of the vouchers undergoing this process are reduced. However, at
the direction of the Tripartite Committee, the Indigent Defense Administrator conducted a study a
couple of years ago and found that, at that time, less than two percent of all vouchers undergoing
review were reduced.

        Baldwin County reportedly adopted by court order the $45/$60 hourly rates simply in
order to comply with GIDC requirements for state funding. In practice the hourly rates are
largely ignored. Despite the county's hourly fee schedule, attorneys are paid flat fees for pleas or
pre-sentence hearings that are separate from trials. For example, the fee for a felony plea is $200,
unless life imprisonment is involved, and then the fee is $300. A flat fee of $130 is paid in
misdemeanor cases resolved by guilty plea, dismissal or nolle prosequi. In some instances
superior and juvenile court judges ask attorneys to submit blank vouchers which the judges
complete themselves. We were told the tripartite committee in Baldwin County has never met
and has therefore never considered any bill that would theoretically be submitted to it. Individual
judges determine the compensation in the cases that come before them. Even in death penalty
cases, attorneys are not paid hourly rates but are instead paid a flat fee at the end of a case
determined by the judges based on the work performed.

       In Clayton County state and superior courts, panel attorneys may choose between billing
hourly or charging a flat fee. The hourly scheme pays $45/hour out of court, $60/hour in-court,
up to $1,000 in a misdemeanor or $2,500 in a felony. Attorneys may bill a flat fee in state and
superior court cases of $300. We were told that, as a convenience, many panel attorneys choose
to charge the flat fees. We were told this is in part because every bill over $500 gets scrutinized,
and not infrequently reduced, by the tripartite committee. In part this is because attorneys can
charge $300 for a case which takes 15 minutes to plead.

        In many counties we heard repeated complaints by panel attorneys that their vouchers are
routinely reduced by the tripartite committee or the judges, often without explanation. Most
counties offer some sort of mechanism to appeal a reduction in voucher payment. For example,
an attorney can submit to the Tripartite Committee a detailed itemization of the time and expenses
with a cover letter explaining why a case required an extraordinary amount of work. If this does
not sway the Committee's decision, the attorney can make a personal appearance before the
committee. The process can be tedious and many attorneys told us they simply do not bother to
take the time.

       The 1999 amendment to Guideline 2.6 requires the administrator of the indigent defense
program to indicate in writing the reasons(s) for a reduced payment. We repeatedly asked panel
attorneys if this occurred. No attorney we asked ever received any written explanations for the
reductions.

       Arbitrary fee caps and voucher cutting are not the only problems with panel attorney

                                                 35
compensation. Many panel attorneys we met with said the rates paid are too low to do more than
cover overhead; in some counties they do not even cover overhead. One panel attorney in
Lowndes County, where counsel are paid $60 an hour in and out of court, told us he nets $18 per
hour on panel appointments (after overhead and taxes.) According to reports released by the
State Bar and the Georgia Association of Criminal Defense Lawyers, current law office overhead
statewide averages more than $52 per hour. An attorney in Richmond County told us he
continues to take occasional appointed cases because he likes the work, but he does it at a loss.
With a secretary and an assistant, his overhead is $68-$72/hour. We heard repeatedly from panel
attorneys and judges that compensation should be increased in order to attract experienced
attorneys.

       As one panel attorney concluded, fees should be commensurate with what's expected: a
vigorous defense. “Otherwise, you'll get a habeas filed against you later, plus, it's your duty
under your oath.”

4.2    CONTRACT ATTORNEYS

        As of 2001, 59 counties of the 152 that receive state indigent defense grant money in
Georgia used contract defenders to provide legal representation to indigent defendants. In some
of these counties, contract defenders were the sole providers of indigent defense services; other
counties use contracts in addition to a public defender and/or panel program.

        Guideline 2.7 of the Supreme Court Guidelines for the Operation of Local Indigent
Defense Programs contains several important provisions. First, contract attorneys may only be
removed for good cause, which is defined as “failure by the Contractor to comply with the terms
of the contract to an extent that the delivery of services to clients by the Contractor is impaired or
rendered impossible, or a willful disregard by the Contractor of the rights and best interest of
clients under this contract such as leaves them impaired.” Second, contracts must specify a
maximum allowable caseload for contract attorneys, whether they work full-time or part-time.
Third, contracts must authorize contract lawyers to decline to represent clients with no penalty if
during the contract period:

        a) the caseload assigned to the Contractor exceeds the allowable caseloads
        specified; or
        b) The Contractor is assigned more cases requiring an extraordinary amount
        of time and preparation than the Contractor can competently handle even
        with payment of extraordinary compensation; or
        c) The cases assigned to the Contractor exceed any number that the contract
        specified or that the Contractor and Contracting Authority reasonably
        anticipated at the time the contract was concluded.

Fourth, 2.7 states that contracts should avoid creating conflicts of interest between the contract
attorney and clients. Specifically:


                                                 36
        a) expenses for investigations, expert witnesses, transcripts and other
        necessary services for the defense should not decrease the Contractor's
        income or compensation to attorneys; and
        b) contracts should not, by their provisions or because of low fees or
        compensation to attorneys, induce an attorney to waive a client's rights for
        reasons not related to the client's best interest; and
        c) contracts should not financially penalize the Contractor or individual
        attorneys for withdrawing from a case which poses a conflict of interest to
        the attorney.

Finally, capital cases in which the death penalty is sought may not be included in a regular felony
contract.

       In our sample, the counties with larger populations (over 100,000) did not use contract
systems for adult indigent defendant representation. Cobb County (population 607,751) uses four
contract defenders called “juvenile advocates” for juvenile court cases. Each is paid $5,000 per
month and handles an unlimited caseload. In Bibb County (population 153,887), attorneys
provide representation under contract in drug court cases, preliminary hearings, appeals, juvenile
and probation revocation cases. Counsel are paid $1,000 per month under each of the contracts,
and each contract states the “contemplated” monthly or annual case assignments. For example,
the contemplated annual average yearly caseload for the preliminary hearings contract is 36 to 46
cases per month, while the probation contract contemplates 20 to 30 cases per month, the juvenile
advocate contract contemplates 10 to 20 appointments per month and the drug court contract
contemplates 325-350 cases per year. However, only in the appeals contract is there a cut-off
mechanism if the cases assigned reach the contemplated cap.

        The contract attorneys we interviewed in Bibb County felt that the flat fee contract
system, together with high caseloads, has taken a toll on quality representation. Attorneys
admitted that given their caseload and inadequate reimbursement it was impossible to put in
adequate time on cases. One told us, “You try to handle as many cases while you are in the
courtroom. You cannot prepare for trial.” A juvenile contract attorney told us, “There is no way
we can do a very good job given our current caseload. I barely have a chance to meet with kids,
families or witnesses and the flat fee is a disincentive to try cases. Because of the volume of
cases, we rely too much on the CASA (court appointed special advocate) program and [CASAs]
are only volunteers and not professionals.” One former administrator of the system expressed
surprise at these sentiments, noting there were always more applicants for the juvenile contracts
than there were contracts available.

        Dougherty County (population 96,065) is the largest county in our sample that uses a
contract system for felony representation. The county has what it refers to as a “panel” of 10
attorneys who work under contract, earning $75,000/year, and are appointed to felony cases in
rotation. While Dougherty County calls this program a panel system, it is more appropriately
categorized as a contract system. The county uses panel attorneys for representation in
misdemeanor cases, supplemented by one contract attorney who is paid $2,000 a month to cover

                                                37
court two days a week. A verbal contract is used by the juvenile court, paying two attorneys
$2,000 each per month.

        The felony contract in Dougherty County includes revocation proceedings precipitated by
new felony charges, misdemeanors resulting from a reduction of an original felony charge, and
cases that the juvenile court transfers to superior court for adult felony prosecution. Despite the
prohibition in Guideline 2.7 of including capital cases where a death sentence is sought as part of
a regular felony contract, the Dougherty County felony contract expressly requires inclusion of
death penalty cases. Softening this noncompliance with the guideline, the contract states that the
superior court has the discretion to approve a claim for additional compensation, outside of the
contract amount, for representation of a defendant in a death penalty case. The contract itself
does not provide caseload limits but the application for FY 2002 GIDC funds lists contract
caseload caps of 150 felonies, four appeals, six probation/parole revocations and 200 juvenile
offender cases.

       In Dougherty County it was widely stated that the felony contract paid adequately but
since pay was on an annual fixed fee, some interviewees speculated that attorneys could spend as
much or as little time as they wished on individual cases. Judges in Dougherty County
complained that good contract attorneys leave after two terms (four years), just as they become
accomplished defense attorneys.

        In both the Ogeechee Circuit (which includes Bulloch County) and the Middle Circuit
(which includes Toombs County), a single attorney works under contract to provide early
representation to defendants detained on felony charges. Additionally, in the Middle Circuit,
contract attorneys are used for representation in felony cases beyond indictment/accusation, in
state court cases, and in juvenile deprivation cases.

        In the Middle Circuit, which covers a largely rural area, it is reportedly difficult to attract
attorneys who are willing to take on the contracts, thus the way in which attorneys are selected is
questionable. There are no set minimum levels of experience required for contracts in any of the
counties. Bids are solicited in some, but not all of the counties. Typically contractors are either
just beginning or at the end of their legal careers. The contract defender in one of the counties
started out by taking cases that were conflicts for the contract defender. These were assigned to
him, as the youngest attorney in the county, because no one else wanted them. He found he liked
the work and eventually became the contract defender. There was no application process; no one
else wanted the job.

        We were told that in some counties, it is possible that no attorneys who meet the Supreme
Court's minimum standards will be interested in becoming a contract attorney, so the county takes
whoever is willing to do the work. When asked how he would go about hiring a new contract
defender, one state court judge who selects the contract defenders for his court told us he would
not advertise the position. Rather, it would be “a thought process” for him; then he would ask
attorneys who he thinks would be willing to do the work.


                                                  38
       The contracts in the Middle Circuit do not specify caseload limits. With no formal
mechanism for determining when additional contract attorneys are needed, additional contracts
are added after judges note increasing requests for continuances and contract defenders express
concern over increased caseload.

        In Floyd County, six lawyers provide representation to indigent defendants in adult
felony, misdemeanor and magistrate cases under fixed fee contracts. Each of the adult criminal
contract lawyers are paid $39,000 per year with no specific case limits. In the past year the county
attempted to add a seventh contract lawyer at the same price but received no interest from other
attorneys in the county. In addition to the contractors for adult criminal cases, there is one part-
time juvenile contract attorney who contracts directly with the juvenile court judge. Conflicts are
handled by a small panel. The contract says the lawyer “serves at the pleasure of the juvenile
court judge and may be terminated by the juvenile court, with no appeal process.”

        The Floyd County contract attorneys are appointed by the chief judge of the superior
court, who first consults with other superior court judges. The judges reportedly have the ability
to terminate the contracts at will. There do not appear to be any qualification standards for
contract attorneys, and few performance requirements.

        In Bulloch County, indigent defense in conflict-free felony matters is provided by a
three-lawyer firm. The three lawyers do the same work in the three other counties in the
Ogeechee Circuit (Effingham, Jenkins and Screven). The attorneys are compensated at an hourly
rate of $50 with no caps. In state court cases, one attorney provides representation in all cases not
involving a conflict of interest at a flat fee of $60 per case. Conflict of interest cases in superior
and state court are assigned to panel attorneys. There is no provision for increasing the fee in a
complicated or time-consuming case.

         Bulloch County only began receiving state Grants to Counties money in FY 2002, thus
previously was under no obligation to adhere to the Supreme Court guidelines on the operation of
local indigent defense programs. Clearly, steps are being taken to improve a program that
previously had no reason to attempt to meet the guidelines. However, the program still has
obstacles to overcome. With only three lawyers covering non-conflict cases in a four-county
circuit, insufficient attorney-client contact with detained clients and heavy caseloads were cited as
a serious problem. A contract attorney has been hired to handle the circuit's Early Intervention
Program (discussed below), but this same attorney, who continues to have a private practice, is
also responsible for all state court cases and all juvenile representation in superior court in
Bulloch County.

        Citing a lack of sufficient attorney time and resources in the current system for
representing indigent defendants, the indigent defense administrator and two of the three judges
interviewed in Bulloch County expressed strong support for a statewide public defender system.
The District Attorney supported a local full-time public defender’s office.

       In McDuffie County (population 20,119), two part-time contract lawyers provide all

                                                 39
non-conflict representation in felony, misdemeanor, juvenile and appeals cases. The contracts are
for one year, with options for two additional years, and each pays $40,000 a year. When there are
conflict cases, counsel is appointed and paid on an hourly basis.

        The nine-page contract in McDuffie County contains numerous important provisions. Of
particular importance is a set of performance requirements concerning investigation, trial
preparation, preparation and filing of motions, arguments of motions, personal counsel, referral to
other agencies when appropriate, trial and post-trial motions, and motions briefing an argument in
the Georgia Court of Appeals and the Georgia Supreme Court. Another clause requires initial
interviews for all defendants in custody within 72 hours of the time the appointment is made and
a statement that “initial contact should be made whenever possible prior to release of the
defendant from custody.”

        There is a provision in the contract providing additional funds for expert witnesses,
investigative services, transcripts and stenographer services, as well as psychiatric and medical
examination when ordered by the court. There is a statement that the parties will comply with all
the terms and provisions and guidelines of the Georgia Indigent Defense Council as approved by
the Supreme Court of Georgia. There is also a requirement that the contract attorneys keep
records of the date and times that they make contact with appointed defendants and maintain
records of the hours they work on indigent cases.

        These provisions are important to note, as McDuffie County's indigent defense system
until 1999 was harshly criticized by the Southern Center for Human Rights, which had notified
the county it was prepared to file a lawsuit over the poor quality of representation. Before the
current contract lawyers were hired, McDuffie County's contract system consisted of one lawyer
handling all of the felony, misdemeanor, juvenile and appeals cases for $26,000 a year.
Individuals we interviewed in McDuffie County confirmed that the former contract attorney held
the position for multiple years, and did a notoriously poor job of representing clients. The
increased budget helped attract experienced, dedicated attorneys who would be willing to work
under the conditions of the contract. During the course of our site visit we were told by most of
the key actors in the system, including judges, the Chief Magistrate and the District Attorney, that
the contract attorneys are performing as required by the contract.

        In Spalding County, a contract system was adopted just over 10 years ago to replace a
panel system. It was felt a contract system would be easier to administer than a panel program
and it would give the county the benefit of knowing what its costs for indigent defense were
going to be from year to year.

        When the three-lawyer law firm that has the contract has a conflict of interest, it pays
another attorney out of its contract money to take the case. This practice runs contrary to
Guideline 2.7's caution that contracts should not financially penalize the contractor for disclosing
a conflict of interest. There is no standard fee schedule or arrangement for this work; the pay is
negotiated on a case-by-case basis. In another violation of Guideline 2.7, funds for experts’
services also reportedly come out of the contract. In addition, the contract does not contain

                                                40
caseload caps.

       The Spalding County contract law firm conducts all of the eligibility screening for
appointed counsel, a practice that at a minimum presents an appearance of a conflict of interest.
Magistrate court and jail personnel interviewed reported that decisions on eligibility were not
made within the required 72 hours from arrest. Instead, the determination was made in 1 to 3
business weeks after application for counsel forms were completed.

        At the time of our visit, Dodge County had two law firms under contract: one providing
representation in felony cases, and the other providing representation in misdemeanor cases.
Representation in all felony cases in all of the counties in the Oconee Circuit, with the exception
of Pulaski County, was provided by the law firm of Straughan and Straughan. A lawyer in
another law firm provided all of the misdemeanor representation in all six counties in the circuit.
Still another contract attorney handled the felony cases in Pulaski County, and also handled the
conflict cases in the other counties in the circuit, including Dodge County. The Straughan law
firm provided conflict case representation in Pulaski County.

        Based upon our interviews and observations, the system used in Dodge County was the
worst program we evaluated. We were told investigators are never requested. There was an
alarming lack of regard for the fact that the criminal justice system is an adversarial system,
where each defendant, regardless of income, has the right to a vigorous (or at least adequate)
defense. We were told that indigent defendants routinely go straight to the assistant district
attorney to try to get their cases resolved. This was seen as appropriate, because the district
attorney’s office was considered very reasonable, and there is an easy sharing of discovery
materials. We were told that defendants get very reasonable bond, thus there is no reason to file
bond reduction motions. Mark Straughan, contract attorney with Straughan & Straughan, agreed
that there was no need to file bond reduction motions, characterizing them as "frivolous" in light
of the reasonable bonds.

        It is possible that improvements will be made in Dodge County given developments that
occurred after our site visit there. In April 2002, The Atlanta Journal Constitution ran a series on
indigent defense in Georgia. One of the counties featured was Dodge County. Contract attorney
Mark Straughan told the reporter he spent "20 years in hell" defending the poor in Bleckley,
Dodge, Montgomery, Telfair and Wheeler counties. In his interview with The Atlanta Journal
Constitution, in testimony before the Chief Justice’s Commission on Indigent Defense, and in an
interview conducted by The Spangenberg Group, Straughan said he assumed his clients were
guilty. "It would be a grave error for a defense attorney to assume innocence on his client,"
Straughan was quoted as saying. "It is better to look for the worst, and if it turns out the other
way, so much the better."38 The article also brought to the public's attention the meager level of
resources provided to indigent defense in Dodge County. In 2000, according to The Atlanta

38
  See Bill Rankin, Justice Delayed: a Cheap Dose of Due Process in Dodge County, Atlanta Journal
Constitution, April 22, 2002.


                                                   41
Journal Constitution article, Dodge County paid on average $49.86 per case to defend poor
people accused of crimes. The article also said that according to GIDC, this was the lowest rate in
the state: the state average for that period was $287 per case. Shortly after the article appeared,
Straughan's firm's contract was terminated by the Oconee Circuit Indigent Defense Administrator.


        As an interim measure, the court asked another lawyer who has handled indigent defense
cases in the past to accept work in the three months remaining under the Straughan and Straughan
contract. We were told the contract will then be advertised and re-let with a hope that attorneys
from more than one of the five counties -- Bleckley, Dodge, Montgomery, Telfair and Wheeler --
will express interest in the work.


4.3    PUBLIC DEFENDERS

        As of 2001, 20 of the 152 counties in Georgia that receive state grant money used
full-time public defender programs as the primary means of providing legal representation to
indigent defendants.

       4.3.1   Houston County

        The public defender office in Houston County has 10 attorneys, four secretaries and one
investigator. There are no paralegals or social workers. Indigency screening in state court is done
by the public defender's office, something considered a conflict of interest by national standards.
In superior court, screening is done by the county's indigent defense coordinator. Conflict of
interest cases are assigned to a list of attorneys maintained by the indigent defense coordinator.
Any licensed attorney who wants to get on the list can ask the Chief Judge or the Coordinator to
include his or her name on the list.

       The public defender office is well organized and emphasizes client-centered advocacy.
The chief public defender, who has been in that position for the last 14 years, carries a caseload
and supervises the attorneys. The attorneys meet every Monday morning with the indigent
defense coordinator and go over the jail list. An attorney assigned to do jail visits will either
accompany or follow the indigent defense coordinator as she conducts the indigency screening
soon after the meeting. That way the clients get to meet an attorney immediately after he or she is
appointed as their attorney.

        Attorneys in the Houston County public defender office commented on the high level of
supervision and mentoring that goes on in their office. One attorney who used to be a contract
attorney in Bibb County commented on what a refreshing difference it was to work in a public
defender office after having held a contract. He felt there were distinct advantages both to him
professionally and to the clients he represents. He told us, "A public defender system is infinitely
better than a contract system. There is no supervision or quality control on a contract. [Also], it is
such a relief to have an investigator on staff rather than beg for one."

                                                 42
       Another young attorney told us that the chief public defender and the deputy chief public
defender regularly brainstorm with attorneys about their cases and all attorneys mentioned that
the open door policy in the office helps them better prepare for their case and results in quality
representation of the client in court.

        Public defenders, however, felt that more training would be welcome and both judges and
public defenders felt that the lack of qualified/certified interpreters was a huge drawback in the
system. In the words of one public defender, “It is intolerable that especially in state court,
inmates are used as interpreters.” A conflict attorney told us, “I would be concerned about the
fairness of the trial with a Spanish speaking defendant.”

        Except for these systemic deficiencies, both the private bar and the judiciary were pleased
with the quality of representation provided by the public defender's office. The Sheriff told us
that the public defenders are relentless in their representation of indigents and that “in no single
instance have I seen an inmate waiting to meet his lawyer in this county.”

        One issue that concerns us in this county is a simmering conflict between the chief public
defender and the District Attorney. Superior court judges expressed exasperation over the
feuding going on in court between the two offices. Apparently the dispute centers around the
District Attorney's view that his office is underfunded in comparison to the Public Defender's
office. Last year a county grand jury charged with investigating efficiency in county government
suggested cuts be made to the public defender office’s budget.

       Both superior court judges told us that the efficient functioning of the court depends to a
large measure on the public defender office and that the court will do anything to support the
survival of the public defender system. The superior court judges wrote a letter to the County
Commissioners in support of the public defender office, citing the benefits of a public defender
system as opposed to a contract system. The letter states, in part:

        ... It has been suggested, for instance, that the county could contract with ten
        private attorneys, pay each one $50,000.00 a year to handle the indigent defense
        case load and still save a half million dollars a year. The truth is, however, that
        this is not what would happen; making such a change would not be economical
        over time for several reasons.

        Having a public defender system means having a group of lawyers who are
        obligated to handle the county's indigent defense work full time. They are
        required to work only in the Houston County court system, handling only
        defendants with pending charges from Houston County court system... The most
        obvious benefit to this arrangement is that defendants incarcerated in our jail are
        processed through the justice system much faster than occurs under a contract
        arrangement.... [P]rivate attorneys under a contract system ...would simply be
        operating with a lot of competing interests which a public defender does not have.

                                                43
         ... Another problem with using a contract system is that the contract attorney will
         constantly be pressured by his or her competing office and client obligations. It is
         naive to think that any private attorney in this area would, or could, completely
         close their private practice and handle only the indigent contract cases. Expecting
         that attorney to neglect "paying" clients, or to make them a lower priority so that
         he or she may give first priority to indigent cases is equally implausible.
        ... Even if an attorney were able to give priority to indigent cases, he or she would
        still be limited in the number of cases which could be accepted under the contract
        arrangement. ... In determining these case limits, the rules say that an attorney
        must factor in the number of "private" cases he or she is handling. One very likely
        result would be that an attorney would have to either take fewer indigent cases, or
        require that you pay more under the contract to offset the decrease in the number
        of paying clients they could accept and remain within the mandated case count
        rules. Again, neither of these alternatives is economically advantageous for the
        county.

        ...In summary, from our personal experience, from discussing the issue with other
        judges operating under contract systems and from observing what is happening in
        the Georgia Supreme Court and the State Bar of Georgia, it is our opinion that it
        would not be wise to replace the current method for handling indigent defense in
        Houston County....39

       4.3.2   Habersham County

        Habersham County utilizes a public defender system to represent indigent adults, juveniles
in delinquency and truancy cases, and parents in deprivation cases. The public defender office in
Habersham County serves the entire Mountain Judicial Circuit, which includes Habersham,
Rabun, and Stephens counties, however, the public defenders reportedly do not go to Rabun
county, or know what's going on there. The public defender program has two attorneys, one
concentrating on felonies and one concentrating on juvenile and deprivation cases, one
investigator and an administrative assistant. We were told very few defendants in state court
receive court-appointed counsel; many appear pro se. The public defender office occasionally
represents misdemeanor defendants who walk into the office seeking counsel. The tripartite
committee selects the chief public defender.

       The Habersham County application for GIDC funds states that the county adheres to the
GIDC caseload guidelines. However, high caseload was mentioned as a problem by both public
defenders and prosecutors in the county. Caseload pressures were exacerbated by the need for
two public defenders and one investigator to cover three counties, with three different court

39
  January 29, 2002 letter to the Houston County Board of Commissioners from Superior Court Judges
George F. Nunn and Edward D. Lukemire. Reprinted with permission of the judges.


                                                  44
schedules.

        The administrative assistant at the public defender’s office completes the GIDC
application for state funds. She includes data provided by the judges, who get it from the clerk's
office. No one plays the role of a formal indigent defense administrator in Habersham County.

        Conflict of interest cases are assigned to court-appointed attorneys by the superior court
judge. In 2000, there were 18 attorneys on the conflict list, taking a reported average of five cases
a year. However, it was reported by an attorney there are only five attorneys actively taking
appointments. All attorneys practicing in Habersham are presumed to be available to take court
appointments, although an attorney may be removed from the list if requested. Conflict counsel
are compensated on an hourly basis, and fee vouchers are approved by the judge. Fee caps on
cases follow the previous GIDC guidelines (March 4, 1999). There are very few if any
appointments out of state court (when we visited, the county had used none of the $600 budgeted
for this). We were told that indigent defense comprises one third of the county's budget.

       4.3.3   Fulton County

        The Fulton County public defender office has 74 attorneys, 20 investigators, and 17
administrative staff persons and one temporary social worker. The Fulton County Public
Defender provides representation in non-capital felony cases through the various units or
divisions within the office. Case assignments are made according to the stage of a case. For
example, a pre-indictment unit represents defendants at hearings prior to indictment, but not
thereafter. Attorneys at the jail file bond motions and provide representation on probation
revocation matters. After indictment, representation is by one defender until disposition.
Attorneys in the juvenile unit are assigned to courtrooms and provide representation in
delinquency cases, unruly offenses when the interests of the child and parent are competing, and
adult and juvenile probation violations. Conflict cases and death penalty cases are assigned to the
Fulton County Conflict Defender and court-appointed counsel.

        Superior court cases that are not assigned to the Public Defender or Conflict Defender are
handled by panel attorneys. Each superior court judge has a list of panel attorneys from which
s/he individually appoints attorneys. The judges appear to choose and run their own panels and
appointment processes.

       At the time of our study, the Public Defender's budget was $8.37 million, all of which was
funded by Fulton County. No funds are provided to the Fulton County Public Defender by the
Georgia Indigent Defense Council.

        The public defender office utilizes an automated case-tracking system. The office reports
a caseload limit of 70 open cases per attorney and 165 felonies per year. Caseloads are reportedly
looked at on a case-by-case basis.

       Indigency screening of detained felony inmates in Fulton County is done by Pre-Trial

                                                         45
Services staff, who are available 24 hours a day. As a result of the Stinson case (discussed in
Chapter 5), Pre-Trial Services received a large number of additional staff. The Public Defender
also staffs an office at the Fulton County Jail with attorneys, legal assistants, secretaries, and
investigators. The public defender office is notified of felony appointments within 24 hours of
defendants' screening, and defender staff at the jail interview defendants, file motions, and get
bond hearings set. If a defendant appears in superior court without an attorney, the judge will
inquire about the status of an attorney and, if told that the defendant cannot afford a lawyer, the
judge will screen for indigency.

        The public defender trial division is staffed with 34 attorneys, 32 assigned to each of the
16 courtrooms in superior court (two in each courtroom) and two floaters. There is a
pre-indictment unit that covers the Complaint Room and the All-Purpose Hearing room in
superior court, both of which are a type of fast-track for felony cases. Following Stinson, the
public defender office received 15 new attorneys for pre-indictment representation. There is also
an appeals division staffed with four attorneys. Representation in SB440 (§15-11-5(b)(2)(A))
cases is provided by three supervising attorneys.

        The Public Defender's juvenile division is staffed by one permanent senior attorney and
five junior attorneys who are rotated out after a period of six to twelve months. In juvenile court,
Fulton County probation does the intake screening while a public defender attorney sits in the
back of the courtroom and waits for probation to inform him or her which juveniles qualify for
public defender attorneys.

        The Public Defender reports to handle nearly all of the probation revocation hearings in
the county. The hearings are normally held in a courtroom at the jail. There were complaints in
Fulton County that many indigent defendants were sitting in jail waiting to be heard on these
matters. It was reported that if a private attorney were retained, a defendant could suddenly jump
to the top of the list to be heard.

        The public defender investigators, like the superior court attorneys, are assigned to
courtrooms. Additionally, there are three floating investigators. An investigation begins within
the office when an attorney submits a written request. The chief investigator has been with the
office since 1994, and he tracks all investigation reports submitted and subpoenas served. The
resources for the investigators have been expanded, and the office appears to be equipped to
perform quality investigations. Additionally, the investigators' salaries are competitive with
investigators with the District Attorney's office, and there has not been a high turnover of
positions. The public defender investigators do not have any in-house trainings, but do attend
GIDC trainings.

        One area of concern we have about the public defender office is the apparent lack of
formal supervision and training. Supervising attorneys carry their own caseload, and while newer
attorneys are assigned supervisors, there is little to no formal supervision done. Further, although
there is a juvenile rotation, there is no other type of training ground within the office at which a
new attorney can start other than representation at the jail. One attorney who had practiced law

                                                 46
before, although not much criminal law, interviewed clients at the jail for two weeks before he
was assigned to a room at superior court. Another attorney, now in the trial division, informed us
that, once in superior court, her caseload became manageable, but that when she was in juvenile
court and assigned to the All Purpose Hearing room, the caseloads were overwhelming. A judge
in the Fulton County Juvenile Court echoed this concern, saying that public defenders were
overwhelmed and insufficiently trained.

        In 1996, the Fulton County Conflict Defender was incorporated as a not-for-profit
criminal defense organization. The program, which contracts with the county, represents indigent
defendants charged with felony offenses whose cases pose a conflict of interest for the Fulton
County Public Defender. Conflict defenders are also often assigned every third case out of the
superior court courtrooms, as well as to complex cases and cases in which the judges see a need
for social work involvement. In addition, the office handles juvenile cases which are subject to
automatic transfer to superior court (SB 440 cases), a limited number of direct appeal cases, and
up to two death penalty cases a year. The program has a policy of not turning down case
appointments, and as a result, many of the superior court attorneys have very high caseloads. At
the time we visited, the staff included the director, four attorneys in the major case division, eight
attorneys in the superior court division, two paralegals not devoted to a division, an office
administrator, a legal administrator, three investigators, and two social workers. The program has
also added five attorneys, two paralegals and one social worker to begin representing
misdemeanor defendants in state court as part of Fulton County’s effort to comply with the
directive in Foster v. Fulton County (discussed in Chapter 5).

       4.3.4   DeKalb County

        The DeKalb County Public Defender program was praised by numerous interviewees as
one of the best indigent defense programs in Georgia. The chief public defender has held the
position since 1984, and is credited with being a true advocate for indigent defense who works
hard to implement important changes. One such improvement is salary parity between public
defender and district attorney lawyers. Another is a shift from horizontal representation to
vertical representation, where the lawyer represents a defendant from bail hearing in magistrate
court through disposition in state or superior court. The chief public defender, who is selected by
the tripartite committee, acts as the county's indigent defense administrator. While the current
chief public defender is by all accounts a true advocate of indigent defense, we feel it is
inappropriate for the position of indigent defense administrator to be held by the chief public
defender. The practice is not a violation of the Supreme Court Guidelines for the Operation of
Local Indigent Defense Programs or state bar ethical requirements, but it raises the appearance of
a potential for a conflict of interest between the public defender and the appointed counsel
program.

        The office attracts experienced and dedicated lawyers. Despite the fact that the office has
high caseload, the chief public defender feels the office can keep up due to a combination of
experienced lawyers, low turnover, good pay, cooperative assistant district attorneys, a reciprocal
open file policy, and attorney specialization. The approved budget for the DeKalb County Public

                                                 47
Defender in 2002 was $4,632,509.

        In addition to the chief public defender (who does not carry a caseload), the office has
three supervisory attorneys, 21 superior court attorneys, six state court attorneys, six juvenile
division attorneys, 10 adult case investigators, one social worker, two juvenile case investigators,
and seven administrative staff.

       Office policy requires attorneys to meet with clients within 48 hours of appointment.
Each pod in the jail has a direct phone line to the public defender's office, which greatly facilitates
contact with detained clients.

        Cases in which the DeKalb County Public Defender has a conflict of interest are handled
by court-appointed attorneys who are paid on an hourly or flat fee per case basis. Attorneys are
paid on an hourly basis ($45 out of court, $60 in court) for cases that go to trial while flat fees are
paid for cases resolved with a plea, no matter how much time is put into the cases.

        Two aspects of the public defender's office were criticized: its lack of formal training and
its tendency to de-emphasize the importance of misdemeanor representation. Some people felt the
public defender's office used misdemeanors as a training ground.

       4.3.5 Public Defender Salary

         There is disparity in salaries paid to prosecutors and defenders around the state.
According to GIDC, the average salary paid to chief public defenders is just over $70,000 while
the current state salary for elected district attorneys is $97,326. Public defender salaries are paid
entirely with county funds, while counties may and do supplement the minimum state salary for
district attorneys, who are elected to serve a judicial circuit. One of the reasons cited for the high
quality of the Houston and DeKalb county public defender programs is that public defender staff
have salary parity with the local district attorneys' staff. Effective July 1, 2002, starting state pay
for an entry level assistant district attorney is $37,000, and as of October 2002, the figure will be
$38,124.40 Assistant district attorneys may earn up to 90% of the District Attorney’s pay. The
Habersham County public defender program does not have salary parity with the local district
attorney's office. In Fulton County, public defender investigators have parity with investigators in
the district attorney's office, but there is not salary parity for attorneys in the two offices.


4.4    THE 72-HOUR RULE AND EARLY REPRESENTATION

40
   While assistant district attorneys tend to be better paid than public defenders in Georgia, assistant district
attorneys have lower entry level salaries than Executive Branch’s Department of Law attorneys, whose starting pay
is $47,000.




                                                      48
       Under the Guidelines 1.2 and 1.3 of the Supreme Court of Georgia for the Operation of
Local Indigent Defense Programs, indigent defendants must be apprised of their right to counsel
and appointed counsel, if so desired, within 72 hours from detention or arrest. In addition,
counsel is expected to make contact with new clients promptly after receiving notice of
appointment.41

41
  GUIDELINES OF THE SUPREME COURT OF GEORGIA FOR THE OPERATION OF LOCAL
INDIGENT DEFENSE PROGRAMS

        1.2 Time of Entry
        Counsel shall be appointed for every eligible person in custody within 72 hours of arrest or detention.
        Counsel shall make contact with the person promptly after actual notice of appointment.

        A person released from custody within 72 hours who has not been appointed counsel shall be notified
        at least ten (10) days prior to the next critical stage of the proceedings against him/her of the right to
        receive court-appointed counsel and the procedure to be followed to have eligibility determined and
        counsel appointed.

        1.3 Appointment of Counsel
        The Administrator of the indigent defense program or designee shall within 72 hours of detention:

        (a) Appoint counsel for those who are indigent and without counsel;
        (b) Clearly advise detained persons of their right to have counsel and that if they cannot afford a
        lawyer, one will be appointed to represent them;
        (c) Allow or assist a person claiming to be indigent and without counsel to immediately complete an




                                                      49
        In our site work, we did not find that the rules regarding timely appointment of counsel
and notification of counsel of new appointments are routinely or consistently monitored. Even
though interviewees in many counties we visited stated that they try to appoint counsel within 72
hours of arrest, this goal frequently was not achieved. In addition, many attorneys reportedly did
not meet promptly with newly assigned clients. In fact, in one county where the contract
attorneys conduct the determination of indigency,42 we were told by jail staff that the contract
attorneys have told jail staff that they do not want the requests for counsel delivered to them
daily. Jail staff have been told to wait until they have a week's worth of requests before
delivering them.

         The systems in a few counties visited did a good job of screening for eligibility,
appointing counsel and requiring attorneys to meet promptly with new clients. Houston County's
public defender system, the panel systems in Cobb and Chatham counties, and the contract system
in McDuffie County stand out in this regard. The panel programs in Cobb and Lowndes request
that attorneys representing detained clients send notices signed by their clients attesting to the
time when they first met the client. This helps monitor compliance with local rules that panel
attorneys visit their clients promptly following notice of appointment. (In Lowndes County,
counsel are expected to meet with clients within 72 hours from notice of appointment. In Cobb
County, counsel are expected to promptly visit all incarcerated clients, "but in no case shall that
initial visit be later than five days from assignment.") Chatham County requires panel attorneys to
make contact with clients within 48 hours of receiving new assignments.

        Even if a county has a good policy pertaining to early entry of counsel, it is sometimes
difficult to determine if the policy is strictly followed. According to indigent pre-trial detainees
we met with in Lowndes County, the earliest the defendants had met with their court-appointed
lawyer was approximately three weeks after arrest. Some defendants told us that counsel was met
with for the first time seven to eight weeks after arrest. We were told by panel lawyers and the
indigent defense coordinator that counsel generally meets with incarcerated clients within one
week of appointment.

       In Baldwin County, court-appointed attorneys are expected to make initial contact with
new clients who are detained within 48 hours of appointment. For clients who are not in custody,

        Application for Appointment of Attorney and Certificate of Financial Resources for a determination
        of indigency or not.
42
  This practice violates the requirement of Guideline 1.4 which stipulates that the indigency determination
should be made by the Administrator of the indigent defense program or designee.




                                                    50
counsel is expected to make a good faith effort to arrange an interview within 72 hours of the time
of service of the notice of appointment. Some panel attorneys admitted they are not always
successful in meeting detained clients within 48 hours of appointment. Inmates we interviewed
described a delay of one week to two months between arrest and their first contact with their
court-appointed attorneys. One attorney interviewed estimated a delay of between four weeks
and two months in his own cases.

        Just as there is no single reason for the delay in appointing counsel within the proscribed
time frame, there is no single reason why counsel, once appointed, do not uniformly meet
promptly with their clients. Problems contributing to the late involvement of counsel with their
clients include:

         •        Some police officers fail to file incident reports in a timely manner.
         •        Some district attorneys and solicitors can be late in filing accusations or
                  indictments and late in providing counsel with discovery. Without discovery,
                  some defense counsel feel there is very little they can do on a case so hold off on
                  meeting with clients until they have the discovery.
         •        Some courts are not prompt in appointing counsel.
         •        Sometimes in-custody defendants are not placed on the court docket in a timely
                  fashion.
         •        Some court-appointed counsel are late in contacting clients and no monitoring is
                  done to correct this problem. As mentioned above, we heard of serious problems in
                  some counties where court-appointed counsel do not go to the jail to meet with
                  clients.

        We found that early representation of indigent defendants is uneven throughout the state
and problematic in many areas: sometimes there is no involvement of counsel until arraignment,
and in some counties, we were told felony indictments can take up to one year.43 One DeKalb
County conflict case attorney told us that if a defendant is out on bond, no appointment of counsel
is made until indictment, which can take up to a year. The attorney commented that when he is
not appointed until arraignment, compared with a retained case, he loses 6-12 months of
investigation.

       In the counties visited, some attempts have been made to provide counsel to pre-trial
detainee felony defendants prior to arraignment in superior court. In Fulton County, this was the
focus of the settlement agreement in Stinson v. Fulton County Board of Commissioners
(discussed in Chapter 5).

       In the Middle Circuit (Candler, Emanuel, Jefferson, Toombs and Washington counties), a
lawyer known as the Early Intervention Coordinator provides representation from arrest to
indictment/accusation for defendants being detained in the jail on new felony charges. One of the

43
     We were told this is the case in Habersham and Spalding counties.


                                                      51
roles of the Early Intervention Coordinator (ETC) is to evaluate whether a case is appropriate for
early disposition, in which case the District Attorney will be contacted. Another role is to
determine whether a preliminary investigative hearing is appropriate (for example, a defendant
needs to get discovery prior to arraignment). If so, the EIC schedules the hearing, subpoenas
witnesses, and represents the defendant at the hearing. One shortcoming of this system is that
there is no continuity of counsel post-arraignment: not only is new counsel appointed, but there is
no sharing of information between the EIC and the new attorney.

         The EIC program in the Middle Circuit was initially funded by an open solicitation grant
awarded by the U.S. Department of Justice, Bureau of Justice Assistance (of 101 proposals from
all over the country, the EIC program was one of only seven programs funded). The contract
pays $50,000 for work in five counties. The lawyer in this position feels stretched to properly
visit inmates detained in five counties, plus make contact with probation and parole staff, the
district attorney’s office, police officers, and family members, plus appear in court. He thought
that a contract paying $50,000 for work in three counties would be more reasonable.

       The Ogeechee Circuit (Bulloch, Effingham, Jenkins and Screven counties) also has an
Early Intervention Program (EIP) for felony cases. As in the Middle Circuit, the goal of the
program is to dispose of cases at the earliest possible procedural juncture and to ensure that
defendants meet promptly with a lawyer.

         The EIP attorney meets with defendants held in the circuit's four county detention
facilities and determines whether they want to enter guilty pleas in their cases. If a defendant
wants to plead guilty, the EIP attorney will schedule the case for a plea. The EIP attorney is also
responsible for seeking bond in cases where the defendant does not plead guilty. As in the
Middle Circuit, if a defendant elects to proceed to trial on his or her charges, the EIP attorney's
involvement on the case ends, and the case is assigned to another lawyer.

         A single attorney working under contract handles the EIP work in all four counties for a
flat fee of $65,000 per year. The same attorney is also responsible for all state court
representation and all juvenile representation in superior court in Bulloch County, and also
maintains a private practice. While the EIP was created with the best of intentions, it appears to
us that the workload of this one attorney was excessive. Detained defendants we interviewed
(who were selected by the indigent defense administrator) complained bitterly about the level of
contact they had with the EIP attorney, stating the total time spent with them ranged from two to
three to ten minutes total.



4.5    ISSUES REGARDING REPRESENTATION IN VARIOUS CASE TYPES

       We observed several factors that affect the quality of representation provided to indigent
defendants in various types of cases. Below we discuss some observations of representation of
indigent defendants in felony, misdemeanor, juvenile and capital cases.

                                                52
       4.5.1   Felony Cases

         One of the biggest problems with representation of indigent defendants facing felony
charges is the delay in appointment of counsel, especially in less populous areas. In some parts
of the state, judges and district attorneys cover multiple counties and there may be as few as two
terms of court a year. Despite the Supreme Court's guideline that counsel be appointed within 72
hours of arrest, the mechanism triggering appointment of counsel in some counties is arraignment
following accusation or indictment. Indigent felony defendants who cannot post bond sometimes
sit in jail for three, five, six months or even one year waiting to be arraigned, all the while with no
contact with counsel. In other counties, counsel may be appointed in a timely fashion, but no
work is done by defense attorneys because they are not provided arrest records, charges and
discovery by prosecuting officials or police until after arraignment.

       4.5.2   Misdemeanor Cases

      While indigent felony defendants typically have appointed counsel, in many counties,
many misdemeanor defendants proceed pro se.

       One state court judge reported that 75% to 85% of the defendants making pleas before
him go unrepresented. He estimated that 5% of his jury trials are pro se and approximately 50%
of bench trials are conducted with no defense counsel.

         Many misdemeanor defendants in Georgia are initially apprised of the charges against
them in magistrate court, which are not courts of record. At this appearance, defendants should
be read their rights, including their right to appointed counsel if they are eligible. We observed
the initial appearances of defendants in magistrate court in Clayton County. The magistrate did
not read defendants their rights. Instead, defendants were asked: what do you want to do about an
attorney? Because magistrate courts are not courts of record, there is no way to check whether
waivers of counsel in misdemeanor cases are made knowingly, voluntarily and intelligently.
         An oft-heard comment in our site work is that people don't want counsel in misdemeanor
cases. This may well occur in some traffic cases, which can make up a significant portion of a
state court docket. In Georgia, every moving traffic violation (not parking tickets) is a
misdemeanor, which can carry 12 months in jail plus a fine. We were told that many people
know it is unlikely they will get prison time for a routine traffic violation, so they do not bother to
request counsel.

         In Richmond County, where two part-time public defenders represent indigent defendants
in state court, a judge whom we interviewed opined that approximately 90% of misdemeanor
bench trials currently proceed without a defense attorney. It was estimated that 25% of all state
court jury trials are conducted with no defense attorney. Indeed, during court observation of a
misdemeanor trial calendar, neither public defender was present. More than ten pleas were
entered -- one of which resulted in sentences of probation -- and a bench trial commenced with no
defense attorney. Judges stated that whenever a defendant was "obviously going to jail,” they

                                                 53
would attempt to secure counsel.

       A number of interviewees noted that a substantial number of people who proceed without
representation in state court plead to offenses without fully understanding the consequences. For
example, not all laypeople know that pleading to a domestic violence simple battery means that a
person can no longer carry a gun, or that a second domestic violence offense is a felony.

       At the time of our visit in Fulton County, we found that a number of eligible misdemeanor
defendants did not receive appointed counsel in Municipal Courts, Traffic Court, and North
Annex and South Annex Magistrate Courts. The Fulton County Public Defender’s Office
suspects this is attributable to forced waivers of counsel. Additionally, until recently there has
been serious delay in appointing counsel in misdemeanor cases in state court (see chapter 5 for
more discussion).

       In Habersham County, we were told that the policy of state court is to only appoint
counsel where there is “significant” jail time involved and the case is sufficiently complex that an
attorney is needed to assist the client. (This was said to be Georgia law, but no case or statute
was cited.) The court reportedly views significant jail time as anything over 30 days. In
addition, counsel are not appointed for probation violations, whether they are new charges or
technical violations. Some interviewees felt the Solicitor and state court judge do not feel that
substantial rights are at stake in state court.

        In Hall County, the indigent defense administrator appoints an attorney of the day for state
court arraignment. The duty attorney does not become counsel of record for these defendants: he
or she just advises defendants appearing that day. Pro se defendants talk with solicitors about
their cases. We were told the indigent defense administrator sometimes asks misdemeanor
defendants to talk to the prosecutor three times to try to resolve the case before appointing
counsel.

        The indigent defense plan for the Indigent Defense Committee of the Macon Judicial
Circuit, which includes Bibb County, states that it provides for representation in felony cases. No
other case types are mentioned. We were told by numerous interviewees that counsel is not
appointed in misdemeanor cases. Indeed, the FY 2002 application for state-grants-to-counties
funds provides no figure for appointed counsel in misdemeanor cases. Data is provided, however,
on delinquency cases, which are not mentioned in the program description. The allegation that
counsel are not appointed to indigent defendants in misdemeanor cases was not confirmed by a
state court judge, as we were unable to meet with one during our visit.

       Our site work was concluded before the Supreme Court released its opinion in Alabama v.
Shelton, requiring counsel to be appointed when requested by indigent misdemeanor defendants
when they face a potential suspended or probated sentence to imprisonment. 122 S. Ct. 1764
(May 20, 2002). Shelton has the potential to significantly change the practice of appointing
counsel for misdemeanor defendants in Georgia. Prior Georgia law tracked federal law, which
required appointment of counsel to indigent defendants, when requested, in any crime that may

                                                54
lead to imprisonment. Argersinger v. Hamlin, 470 U.S. 25 (1972). While a number of states
expanded the federal right to counsel to include cases where defendants faced but were not
sentenced to imprisonment, Georgia law required that counsel be appointed only when the
defendant was sentenced to actual imprisonment. See Brawner v. State, 296 S.E.2d 551 (1982),
Houser v. State, 214 S.E.2d 893 (1975), Stillwell v. State, 288 S.E.2d 295 (1982).


       4.5.3 Juvenile Cases

        Some of the more disturbing problems in Georgia's indigent defense system are found in
the treatment of juveniles accused of delinquent offenses.

        Too many juveniles in Georgia appear in juvenile court without counsel, typically because
they are poorly informed of their right to counsel or because they are discouraged from exercising
that right. In a number of counties we visited, the indigent defense administrator has little or
nothing to do with the administration of the juvenile indigent defense program. The juvenile
judges make appointments to attorneys off of their own lists (Chatham and Clayton counties), or
select contract attorneys (Cobb County).

        In Clayton County, accused juveniles are reportedly asked to admit or deny the charges
against them before being offered the opportunity to consult with court-appointed counsel. The
practice of judges in Clayton County is to appoint attorneys to indigent juveniles in any
designated felony. If the charge is not a designated felony, however, judges will generally
appoint counsel only in cases where the juvenile denies the charges. A prosecutor estimated that
between 10% and 20% of contested fact-finding hearings are conducted pro se in juvenile court.

        The juvenile court administrator makes appointments in juvenile cases from a list on a
rotational basis but reportedly has a great deal of trouble contacting most of the attorneys on the
list. The result is that a small number of attorneys handle the vast majority of the juvenile
caseload in Clayton County. For example, two such appointed attorneys pick up between 5 to 12
cases each week. (Clayton County has a sizable population: at 236,517, it is the fourth largest
county we visited.) All attorneys representing juveniles are compensated at a rate of $45 per hour
for out-of-court work and $60 an hour for in-court, however, there is a $250 per case cap. One
judge noted that this cap is "probably out-dated."

         The juvenile court judge in Baldwin County told us he had a very hard time getting
attorneys to participate on the juvenile panel and lamented that the very worst attorneys remain on
the juvenile list. We were told attorneys on the juvenile panel rarely subpoena witnesses, present
evidence, move for a directed verdict, file motions for discovery, talk to witnesses, know names
of witnesses, or look at school records. Attorneys typically meet with their juvenile clients for the
first time at the courthouse steps.

        In Habersham County, juveniles are reportedly only assigned counsel in cases requiring
detention hearings. These are more serious cases where the police or prosecutor seeks to detain

                                                55
the child pre-trial because of public safety issues or because the child might fail to appear at a
susbsequent court appearance.

       In Chatham County, attorneys are appointed to represent children in delinquency and
unruly cases. They are also appointed to represent parents in deprivation and termination of
parental rights cases. Many juvenile cases in Chatham County are resolved without appointed
counsel. Despite repeated inquiries as to what accounted for the low level of appointed counsel,
no one interviewed seemed to know the reason. One suggestion was that many delinquency cases
are handled informally, without a hearing. A juvenile court judge acknowledged that of those
juvenile cases that make it to court, less than one-half have an appointed or retained attorney.

        In Richmond County, a single part-time public defender is responsible for juvenile court
representation. The attorney, who handles approximately 1,200 cases per year, also has a private
practice. The juvenile court public defender work represents less than 40% of his practice.

          4.5.4    Capital Cases

        Representation of capital defendants in DeKalb and Houston counties is provided by the
public defender office and panel attorneys. In Fulton County, the Conflict Defender takes up to
two death penalty cases a year, and panel attorneys handle the balance. In counties with panel
systems, we found that typically appointments in capital cases are not made to the same attorneys
who are part of the usual felony panel. Cases are appointed off a separate list of attorneys
deemed to be qualified to handle capital cases. The Supreme Court guidelines concerning
contract programs forbid capital felonies where the death penalty is sought from being included as
part of a contract for indigent defense services (see Guideline 2.7). However, contract attorneys
can be and are appointed to the cases outside the contract.

        Under the Indigent Defense Guidelines and the Revised Unified Appeal, compensation for
panel attorneys appointed to capital cases must be set at a higher rate than the rate in non-death
penalty cases, in consideration of the seriousness, complexity and longevity of death penalty
cases. In Dougherty County, attorneys handling death penalty cases are paid $65 an hour for
out-of-court work and $90 an hour for in-court work. In Cobb County, the county's fee schedule
calls for appointed counsel to be paid $75/hour in-court and $65/hour out-of-court with no
maximum. When appropriate, judges will pay up to $100/hour in death penalty cases. One
superior court judge in Fulton County said he pays lawyers in death penalty cases $100 an hour
for out-of-court work and $120 an hour for in-court work.

         Under the Revised Unified Appeal, in trial cases for which notice that the state intends to
seek a sentence of death is given, two qualified attorneys must be appointed.44 In homicide cases,
district attorneys have a great deal of discretion over when they will serve notice to defense
counsel that a sentence of death will be sought. Until that time, which can range from two

44
     See http://www2.state.ga.us/Courts/Supreme/ for a listing of the qualifications.


                                                           56
months to one year, a county is under no obligation to appoint two attorneys to the case, or even,
for that matter, to appoint an attorney who is qualified to handle capital cases. So sometimes a
lawyer will be appointed who does not meet the minimum qualifications to represent defendants
in capital cases and once the district attorney’s office announces that the case will be tried as a
death penalty case, two entirely new counsel must be appointed.

        Representation of indigent defendants in death penalty cases was not an area of close
scrutiny in our site work, as a detailed study of a system in a state that has a very large death
row45 was beyond the scope of our general review of indigent defense in Georgia. However, in
our site work, we heard universal praise for the work of the Multi-County Public Defender among
prosecutors, judges, and attorneys. Interviewees commented that the level of capital defense has
been raised in Georgia because of the work of the Multi-County Public Defender.

       4.5.5 Habeas Corpus Actions




45
  The NAACP’s report, Death Row U.S.A. Fall 2001 lists Georgia’s death row population as 131 as of October 1,
2001. See http://www.naacpldf.org/pdfdocs/DRUSA-Fall01.pdf p. 21.




                                                     57
       Georgia provides no right to counsel in habeas corpus actions.46 Thus, even if an attorney
takes on a habeas corpus case, there is no authority for compensation by the court; all work is
performed pro bono. Reenforcing this point, the Chatham County Indigent Defense Guidelines
expressly state that habeas corpus actions are not compensable under the local indigent defense
system. There is no system in Georgia for providing counsel to indigent defendants in habeas
corpus cases. The small Georgia Appellate Practice & Education Resource Center, which is
funded with state funds, handles a number of capital habeas corpus cases and seeks pro bono
counsel to handle cases that are beyond its capacity to take on. The Center for Prisoners’ Legal
Assistance in Alpharetta, Georgia is funded with a contract from the state Department of
Corrections and handles a limited number of non-capital habeas corpus cases.


4.6        WAIVERS OF COUNSEL

        Under the Sixth Amendment of the United States and the Georgia Constitutions, to be
valid, waiver of counsel must be knowing, intelligent47 and voluntary.48 Waiver will not be
presumed from a silent record.49 The record must establish that the defendant knows what he or
she is doing in choosing self-representation.50 Waiver of the right to counsel requires more than
showing of knowledge of the right to counsel; there must be evidence of relinquishment of that
right.51 Despite these strict requirements, we were told there are many instances of waiver of
counsel in juvenile, misdemeanor and felony cases in Georgia courts.

        We were told that in Baldwin County, defendants come to meet with the assistant district
attorney and ask, “Do I need a lawyer?” The district attorney tells them, “It is up to you, if you
feel you need a lawyer get a lawyer.” Noting that the community has a small town mentality, the
assistant district attorney told us it is not uncommon for defendants to try to work things out with
the district attorney’s office.

        In Cobb County, although counsel are appointed to represent defendants in state court,
there are still a significant number of defendants who choose to proceed pro se. One judge

46
      See Gibson v Turpin, 513 S.E.2d 186 (1999).

47
      Jones v. State, 212 Ga. App. 676 (1994).

48
      Faretta v. California, 422 US 806 (1975), Callaway v. State, 197 Ga. App. 606 (1990).

49
  Jones v. Wharton, 253 Ga. 82 (1984), Blaylock v. Hopper, 233 Ga. 504 (1975), Kirkland v. State, 202 Ga. App.
356 (1991).

50
   See U.S. Const. Amend. 6, and Hamilton v. State, 233 Ga. App. 463 (1998). The choice must be made “with eyes
wide open.”

51
      Rutledge v. State, 224 Ga. App. 666 (1997).


                                                         58
suspected this was because defendants felt that getting a lawyer appointed would slow things
down.

        In Dodge County, many defendants negotiate pleas on their own with the district
attorney’s staff. The judges felt this was not an ethical or legal problem as long as the defendants
had waived counsel. When asked if he was concerned that defendants may not be able to present
all mitigating circumstances in an effective manner, the superior court judge said he felt it was not
a problem, because it was a small county, and the judge and district attorney staff know the
circumstances of the people who appear before the court. We were also told that 10-15% of
defendants decline the services of the contract defender despite being eligible.

        While waiver of counsel by indigent defendants in felony cases was not common in the
counties we visited, we were told by the District Attorney in rural Toombs County that it is
relatively common for felony defendants in less serious cases to waive counsel. At arraignment,
judges tell defendants they do not have to ask for an appointed attorney, but that they have the
right to apply for one. Then defendants are told they may choose to talk with the District
Attorney’s representative that day to hear what he or she is offering. A number plead out at
arraignment without benefit of counsel after hearing the offer from the assistant district attorney.

        Many misdemeanors are resolved in municipal, magistrate and probate courts. Municipal
and probate courts were not courts that we visited as part of this study. As we understand it, with
the exception of Atlanta City Court and Atlanta Municipal Court, indigent defense counsel do not
usually appear in municipal, probate or magistrate courts. Municipal courts are established by
charter legislation, and some are courts of record while others are not. Probate courts are courts
of record by case law but not by statute. Magistrate courts are not courts of record. As
previously discussed, Alabama v. Shelton expands the right to counsel for misdemeanor
defendants in Georgia. Of course, if valid waiver of counsel is made, counsel need not be
appointed. However, it may be difficult to track compliance with Shelton when waivers are made
in those courts which are not courts of record.


4.7    ATTORNEY-CLIENT CONTACT

       We heard repeated comments from attorneys, judges, jail staff and inmates that appointed
attorneys do not meet with their clients enough.

        One of the factors contributing to infrequent contact between attorneys and their clients is
that some counties in Georgia do not have their own jail; inmates are transferred and held in jails
in other counties. Another contributing factor to infrequent attorney-client contact is jail
overcrowding. In Houston County, for example, because of jail overcrowding, defendants are
sometimes taken to other county jails. When an attorney wants to meet with such a client he or
she has to file an application with the other county's jail to have the client brought to Houston
County. The jail has to make complicated arrangements to do so, such as sending another
defendant out to free bed space, etc. There is little flexibility in scheduling when such

                                                 59
arrangements have to be made, and the lack of scheduling flexibility inhibits attorney-client visits.
 The county is building a new jail which will be ready in fall 2002.

        In Floyd County, a new jail opened in 1999 which increased the county's inmate capacity
from 250 to 800. Despite the significant increase in bed-size, at the time we visited, the new jail
was slightly over capacity, at 813 inmates. We were told that 180 inmates in the Floyd County
jail were from four other counties; one county was over a two-hour drive away. Some counties
send defendants to Floyd County because they do not have a local jail while other counties were
sending over-flow detainees to be held in Floyd County.

       A major factor in jail overcrowding is the warehousing of pre-trial detainees who cannot
post bail and must wait a long time before arraignment. This occurs in both misdemeanor and
felony cases throughout Georgia. Misdemeanor defendants can wait weeks for action to be taken
by local courts. Felony defendants can wait for months before being indicted.

         Jail overcrowding is not the only reason for indigent defense lawyers failing to meet their
clients. We were told that Floyd County contract defender attorneys frequently do not visit their
clients in jail. The problem in Floyd County is probably due in part to a lack of monitoring of
contract attorneys. It has been difficult for Floyd County to attract lawyers to take the indigent
defense contracts. Other reasons for inadequate attorney-client contact include: inadequate
compensation of indigent defense counsel, indifference by many appointed lawyers to their
clients and a lack of monitoring of visits by court-appointed attorneys with in-custody clients.

        Panel attorneys in Lowndes County admitted they do not visit clients as often as they
should. One told us he will visit only "if there is something important." Several inmates in
Lowndes County told us they wanted to enter a plea but they could not get in touch with their
lawyers. Similarly, in Richmond County, jail staff told us that they were frequently contacted by
inmates who want to plead guilty but could not get in touch with their attorneys. Their
observation was that most appointed lawyers met their clients for 10 minutes either at arraignment
or the day before that. Jail staff in Clayton County reported that inmates often complain about
infrequency of attorney contact. Jail officers are frequently asked to point out attorneys at
substantive court hearings because clients have never met them. In Baldwin, Lowndes, Dodge,
Dougherty and Floyd counties, jail officers told us that the complaint they hear most frequently
from clients is that they are trying to get in touch with their lawyer. Clients we spoke to in
Clayton, Dodge, Dougherty, Lowndes, Bibb and Baldwin counties complained to us that they see
their lawyer only at formal arraignment and at best a couple of days before formal arraignment.
A juvenile court judge in Bibb County told us he thinks that appointed counsel initially meet their
clients within 72 hours of appointment, but rarely have a second visit.

       Client contact was an issue cited by the District Attorney, the jail administrator, in-
custody defendants and one of the three attorneys doing court-appointed work in Bulloch County.
The District Attorney noted the court-appointed lawyers’ office is at least 45 minutes away from
the courts and felt that the attorneys were not visiting their jail clients. The jail administrator we
spoke with said he sees the firm’s attorneys at most twice a month. There are reportedly jury

                                                 60
selection days where indigent defendants have never met their attorney. The firm attorney
admitted he doesn’t go to jail as often as he needs to. Among the in-custody defendants we met,
few had met with their attorney more than once, some had yet to meet their lawyer. A defendant
detained on burglary charges had been held for 99 days. So far he had met “less than 2 minutes”
with the Early Intervention Program (EIP) attorney and was asked if he wanted a plea or bond
hearing. He asked for a bond hearing, but had no further contact with the lawyer. Another
defendant had been detained on a murder charge 285 days and reportedly met with his appointed
attorney for 10 minutes in jail plus at one court hearing. He could not make collect calls to the
lawyer. Another defendant, in jail for 109 days on armed robbery charges, told us he met with an
attorney once for less than 10 minutes. Other defendants did not know that they would not have
the EIP attorney if they went to trial.

        Inadequate client contact can be a symptom of too many cases and/or inadequate
compensation. One attorney in Clayton County told us when he returns to his office and has two
client phone messages -- one from an appointed client and one from a retained client -- "Of
course, I will call the client who retained me first." Among several inmates interviewed in
Clayton County, two reported that they met their court-appointed attorney within a week of their
arrest. The others reported having to wait between three weeks and six months to meet with an
attorney. Court-appointed attorneys reportedly spent an hour or considerably less with these
clients over periods of pre-trial incarceration lasting up to seven months. Some of the inmates
complained that their attorneys didn't have time to discuss the facts of their cases and refused to
interview witnesses.

        DeKalb County stood out in its ease of attorney-client contact between public defenders
and clients who were detained pre-trial. As previously mentioned, each pod in the jail has a direct
phone line to the public defender's office. In addition, access of public defenders to clients for
in-person visits at the jail was considered excellent, and private conference rooms are available.

        Infrequent attorney-client contact is not always due to a lack of effort on the attorney’s
part. In Toombs County, the District Attorney noticed that the contract defenders’ out-of-custody
clients often did not stay in contact with their lawyers. The District Attorney initiated a local
practice whereby at arraignment defendants are given a written order to appear at court on a
subsequent date, usually 2-4 weeks later, for a “pre-trial conference.” The hearing is informal:
the judge does not attend but the District Attorney staff does. The court can issue a warrant if a
defendant fails to appear at the hearing but typically if that happens the defendant won’t be
incarcerated, but will be reminded to call his attorney. The orders are issued for both appointed
and retained cases and the attorneys are under no obligation to appear. However, the contract
attorneys routinely appear because they find it helpful.

       In McDuffie County, we were told that the two contract defenders visit their in-custody
defendants within 72 hours of appointment. This is particularly important in a small county
where the superior court only has two criminal terms a year.




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4.8     INDIGENCY DETERMINATION

       Counties accepting state grant money must follow the Supreme Court's guidelines on
determining whether defendants are eligible for court-appointed counsel. Guideline 1.5 reads:

         1.5 Financial Eligibility
        Eligible accused persons include all applicants for an attorney with a net income
        below the Poverty Guidelines as established and revised annually by the United
        States Department of Health and Human Services and published in the Federal
        Register. The local committee may set and revise the eligibility standards in
        accordance with, but no lower than, the Poverty Guidelines.

        The following special needs of a family unit may be deducted from net income in
        determining eligibility:
        (1) child care expenses for working custodial parents,
        (2) legally required support payments to dependents, including alimony for the
        support of a child/children,
        (3) unusual, excessive, or extraordinary medical or other expenses.

The 2002 poverty guidelines are set out in the table below.


                                 2002 HHS Poverty Guidelines

          Size of Family         48 Contiguous States         125% of            125% of Guideline
          Unit                   and D.C.*                    Guideline Annual   Monthly
          1                      $8,860                       $11,075            $925
          2                      $11,940                      $14,925            $1,245
          3                      $15,020                      $18,775            $1,565
          4                      $18,100                      $22,625            $1,890
          5                      $21,180                      $26,475            $2,210
          6                      $24,260                      $30,325            $2,530
          7                      $27,340                      $34,175            $2,850
          8                      $30,420                      $38,025            $3,170
          For each additional    $3,080                       $3,850             $325
          person, add



                                                62
* There are slightly higher thresholds for Alaska and Hawaii.


        We found a great deal of variance in the process of determining whether defendants
qualify for court-appointed counsel among the counties visited. Some counties stick closely to
the federal poverty guidelines. Some counties have homegrown rules of thumb. Among counties
that used the federal poverty guidelines, there was variability in practice in appointing counsel for
people who were slightly over the guidelines: in some counties that would be routine while in
others appointment of counsel would routinely be denied.

       We heard from many people interviewed that the Hall County indigency determination
process was too strict. One interviewee said it was "like pulling hen's teeth to get an attorney
here." In determining indigency, the indigent defense administrator follows the Supreme Court
poverty guidelines, along with "local guidelines." The "local guidelines" include a rule that a
defendant cannot have more than $1,000 in assets to be eligible for counsel. In accordance with
the Supreme Court guideline, child support payments are deducted if they are court-ordered and
up-to-date and medical expenses are deducted from income upon proof that they exceed $5,000.
Likewise, probation costs are deducted if they are up-to-date. Wages are verified. The indigent
defense administrator admits that screening is stringent. If counsel is denied, defendants are told
to keep a running budget/income record. At subsequent calendar calls, defendants can try to
demonstrate they can't hire a lawyer. Usually they are appointed one if they fail to hire one by
then. According to records kept by the administrator, in 2001, 772 of 1,449 defendants in
superior, state, and magistrate courts received attorneys; 242 of 282 juveniles received attorneys.

       In Houston County, the indigent defense coordinator uses the GIDC guidelines to
determine indigency. The guidelines are very strictly applied. There is no discretion to appoint
counsel to a person earning even a dollar above the guidelines.

        In DeKalb County, we were told there is no uniform standard applied. Defendants who
are in jail are presumed to be indigent. The federal poverty guidelines are used in misdemeanor
cases. In juvenile cases, consideration is given to the guidelines, as well as to any debt of the
child’s family and the complexity of the case.

       In Baldwin County, defendants who have bonded out of jail and seek appointed counsel
must obtain a form from the court and have this form authorized by three local defense attorneys
vouching for their indigency. In other words, defendants who post bond must affirmatively
demonstrate they cannot afford to pay the fees of three local lawyers before they can receive
appointed counsel.


4.9    TRAINING

       Overall, the indigent defense systems in the counties visited have very minimal - and often
non-existent - criminal defense training requirements for public defenders, contract attorneys and

                                                         63
panel attorneys. In the Fulton County public defender office, for example, new attorneys shadow
a senior attorney for two to three days and are then on their own with no further formal training.
The panel program in Cobb County was the only one we reviewed that mandates participation in
annual criminal law training. New panel attorneys must have attended at least one criminal law
seminar within the two years before joining the panel. To remain on the panel, attorneys must
attend at least one criminal law seminar each year.

       With no criminal law training requirements in the majority of programs, many panel
attorneys and contract attorneys do without training. While a lack of training is not acceptable for
any lawyer, it is often more troubling in panel and contract systems where attorneys do not
always have easy access to other criminal defense lawyers and supervisors who can offer advice
and suggestions, as in a public defender program.

        GIDC offers dozens of low-cost criminal law training sessions in Atlanta and in other
locations around the state each year. Attorneys who participate in the trainings praised them.
However, GIDC reports that overall participation is low; it has had to cancel some sessions
scheduled outside of Atlanta due to too few participants. Many judges interviewed felt that
mandatory attendance at specialized and targeted criminal law training programs by indigent
defense lawyers would distinctly improve the quality of indigent defendant representation.
Several judges felt that attorneys need training in specialized areas such as juvenile and mental
health law, noting that lack of proper training in these areas was sorely evident in court. Some
suggested that mandatory training coupled with greater availability of GIDC training at the local
level would make it easier for younger attorneys to get proper training without cutting into law
firms' billable hours requirements.

        Judicial encouragement to attend training has impact. GIDC’s juvenile case training
sessions are well-attended. This is attributed to the fact that a number of juvenile court judges
require that attorneys participate in juvenile training before accepting court appointments; the
juvenile judges in Fulton County require attorneys to present a certificate proving they’ve
attended the training. GIDC’s capital case training is also well attended, due perhaps to the
Supreme Court’s requirement that attorneys attend annual capital case CLE in order to receive
capital case appointments.


4.10   ANCILLARY SERVICES

        Any effective criminal defense lawyer – whether representing retained or court-appointed
clients – needs from time to time to make use of ancillary services, such as investigators, experts,
interpreters, social workers, etc. in order to adequately represent his or her clients. In our site
work we asked about the practices concerning indigent defendants' lawyers use of ancillary
services.

       4.10.1 Investigators


                                                64
       Adequate investigation of a case is the most basic of criminal defense requirements.
Sometimes it is not necessary to enlist the assistance of an investigator, but often it is. For
example, it is not proper for attorneys to interview witnesses who they suspect they may later
need to impeach in court, because the lawyer may have to testify against the witness.

        Numerous contract and appointed counsel admitted they rarely obtain the services of an
investigator. Some attorneys told us they simply prefer conducting investigation themselves.
Others candidly admitted they do little or no investigation at all. Reasons for this vary.

        One attorney told us that independent investigation was unnecessary, because by looking
at the discovery, “you can always see that the defendant did something. May not have committed
the crime, but at least knows something about the crime.” In Baldwin County attorneys freely
admitted that unless a case goes to trial, the flat fee is a disincentive to do any investigation on
cases. Further, superior court judges there informed us that they grant requests for investigators
or experts only in death cases. In Bibb County attorneys told us that those who were appointed
on murder cases had to do their own investigations. In many counties travel time and gas are not
reimbursed so appointed attorneys are reluctant to visit witnesses or clients who are in jail. In
Richmond, Clayton, Bibb and Baldwin counties we were told that even attorneys who feel that an
investigator or expert would help in their cases are reluctant to file motions securing investigative
help a) because it will be a waste of time, as such requests are routinely denied and/or b) because
it might annoy judges. In Clayton County, attorneys told us that even in death penalty cases to
get approval for investigators was akin to “pulling teeth.” In Lowndes County, very few
attorneys request investigators. The Coordinator is able to approve up to $500 for an investigator
or expert.

        In most counties visited, attorneys are able to make ex parte requests for experts and
investigators, when appropriate. This was not the case in Bibb County where panel attorneys
reported they have never been permitted to file investigator requests ex parte.

        Both Cobb and Dougherty counties have designated investigators who are available to the
panel attorneys. In Cobb County, the indigent defense administrator keeps a list of about 25
investigators for panel members to use. Investigators must be licensed by the state of Georgia
and in good standing to get on the list. They are paid $30/hour. Attorneys seeking the services of
an investigator must secure an order from a judge allowing the cost. The order is for a set amount,
with an understanding that if more is needed, the attorney can ask for additional funds.

       All four of the public defender programs we visited had investigators on staff.

       4.10.2 Interpreters

       We found the availability and use of interpreters to be a serious problem in many counties
we visited.

       In Lowndes, Dougherty, Houston, Bibb, Baldwin and Clayton counties, the lack of

                                                 65
available Spanish speaking interpreters was cited as a significant problem when dealing with the
Spanish-speaking community. In Clayton County, the problem is so severe that we observed
defendants bringing children to court to interpret for them. Clayton County has large Hispanic
and immigrant populations. In Dodge County, inmates and jail guards are used by attorneys to
interpret for clients. In other counties such as Lowndes and Dodge, probation officers are used to
interpret in court. Clayton County was coping with an interpreter shortage in magistrate court by
relying on AT&T language lines for first appearance hearings.

        In Habersham County, we were told that about 10% of the jail population is Hispanic, and
a significant percentage of that group speaks no English. There are also Laotian and Vietnamese
populations in the county. On court days, there is a court interpreter. However, we were told it is
rare for attorneys to visit Hispanic defendants in jail, because translators are not available there.

         In October 2001, the Supreme Court of Georgia passed an order on the use of interpreters
for non-English speaking persons that promulgates rules requiring certified and/or registered
interpreters be available to assist non-English speakers in court proceedings. It also established
the Georgia Commission on Interpreters for Non-English Speakers, which is to administer a
statewide comprehensive interpreter program, oversee the development and ensure the quality of
all interpreters, approve court interpreter programs, and develop guidelines for interpreter
programs. The Commission is to establish programs for certification and registration of
interpreters.52 From what we could tell, these requirements have yet to be implemented in the
counties we visited.

        According to the Administrative Office of the Courts, on January 1, 2001, there were 55
Qualified Interpreters (meaning they had attended an orientation session and passed the written
exam) and 14 Certified Interpreters (meaning they had attended orientation training and passed a
written and oral exam). These numbers are steadily increasing. As of July 31, 2002 there were
148 Qualified Interpreters and 19 Certified Interpreters. Another 65 persons had attended
orientation and taken the written test, and were awaiting test results. Training sessions and
written tests scheduled for the remainder of 2002 may bring as many as an additional 140 persons
into the qualified status.


         4.10.3 Experts

       The outcome of a case can hinge on examination of scientific evidence, such as DNA, or
on a psychiatric examination of a client -- things for which defense lawyers must utilize an expert.
 As with investigators, lawyers will not need to use an expert on every case, however, when
appropriate, the services of experts must be freely available to indigent defense lawyers. In
Spalding County, the expense of experts apparently comes out of the flat-fee contract for indigent
defense. Such an arrangement violates Supreme Court Guideline 2.7 and places contract

52
     See http://www.legis.state.ga.us/Courts/Supreme/interpretersrule.htm.


                                                      66
attorneys in the position of having to choose between using part of their contract payment for
necessary experts or forgoing the experts.

       In Baldwin County, we were told by attorneys, judges and the indigent defense
administrator that funds for experts and investigators are granted only in death penalty cases.

       A panel attorney in Bibb County told us that out of the 20 times he has applied for an
expert he has never received an expert. “If there was more money for experts, by God, my clients
would not be in jail.”

        A superior court judge in Fulton County told us, “I will deny an expert or investigator if I
think the lawyer can do it.” He puts an initial cap on the investigator expense. “As far as experts
are concerned, I am as cheap as possible. This is a Chevy operation, not a Mercedes operation.
We are under extreme pressure from the county to hold our expenses down.”

       4.10.4 Social Workers and Programs that Provide Alternatives to Incarceration

        We found that overall there are limited options for defense attorneys who want to pursue
treatment or other alternative placements to incarceration for adult and juvenile clients in
Georgia. Panel attorneys, contract attorneys and juvenile court judges reported there are limited
alternative placement programs available. Further, with relatively few public defender programs
in Georgia, there is low usage of social workers. Social workers are used in criminal cases to
assess clients and make recommendations and obtain placements in programs providing
alternatives to incarceration. They are more commonly used by public defender programs rather
than by panel attorneys or contract attorneys. Both the DeKalb and Fulton County public
defender programs have one social worker.

       4.10.5 Mental Health Services

       Services for indigent defendants with mental health problems are virtually non-existent in
many Georgia counties and consequently some defendants simply stay in jail for weeks or months
without treatment or proper disposition of their cases.

        An initiative in DeKalb County stands out in contrast to what occurs in other places we
visited. The Chief Magistrate Judge created a mental health diversion calendar in May 2001. It is
available to non-violent misdemeanor defendants with mental health problems. Their cases are
diverted as opposed to receiving special sentencing conditions of treatment. The project is
described as a major undertaking, and includes a mobile crisis unit, one psychologist and two
on-call officers.

        We were told the biggest problem relating to representation of indigent defendants with
mental illness is a lack of resources to effectively assist these individuals. Georgia, like many
other states in the country, has reduced the number of state hospital beds available for patients
with mental illnesses in the past two decades. In counties where there are not enough resources to

                                                67
assist people with mental illnesses, some people who could more appropriately be helped with
medical or social services, if the services were available, end up in the criminal justice system.
Those in the criminal justice system – including police, judges, prosecutors and defense attorneys
– lack training in how to deal with people with mental illnesses who "act out" or commit crimes
because they don't have medication or proper supervision. With inadequate community resources
and alternatives to incarceration available, jails and prisons have become the nation’s mental
health facilities.

        A Bureau of Justice Statistics report, Mental Health and Treatment of Inmates and
Probationers, found that 16% of all inmates in state prisons and local jails have mental
illnesses.53 According to the National Alliance for the Mentally Ill, 5.4% of American adults
have a serious mental illness.54 The BJS report also found that state prison inmates with a mental
illness were somewhat more likely than other inmates to be incarcerated for a serious offense and
to be under the influence of alcohol or drugs at the time of arrest. They were more than twice as
likely as other inmates to have been homeless in the 12 months prior to their arrest. Over three-
quarters of mentally ill inmates had been sentenced to time in jail or prison or on probation at
least once prior to the current sentence.55

          4.10.6 Adequate Client Meeting Space

       It is imperative that defense counsel is provided sufficient time and a confidential space
with which to meet counsel. In many county court houses visited we noticed that contract and
panel attorneys had no room or private area to talk to defendants. For some attorneys, the only
time they meet their clients is at the courthouse. It is important that some kind of space is
provided for panel and contract attorneys to meet with their clients in private.

       In Habersham County, the public defender's office is poorly equipped to meet clients. For
example, there is no hallway and no waiting area, so the staff walk through each other's offices all
the time. There is no room in the office for files and it is impossible to have private conversations.

53
  Paula M. Ditton, Bureau of Justice Statistics Special Report, Mental Health and Treatment of Inmates and
Probationers, July 1999, p. 1.

54
     http://www.nami.org/helpline/factsandfigures.html.

55
  Paula M. Ditton, Bureau of Justice Statistics Special Report, Mental Health and Treatment of Inmates and
Probationers, July 1999, p. 1.




                                                          68
Each office has a noise machine or a radio to provide some privacy.

        In Fulton County, attorneys complained that the holding cells in which attorneys conduct
interviews with clients are unsanitary, have little privacy, have no tables to write on and are very
noisy.

4.11   CASELOAD

       The GIDC Guidelines set forth recommended caseload figures for full-time public
defenders.56 Programs are instructed that if they regularly exceed the annual, per-attorney
caseload standards they are to provide a detailed explanation of factors including local court and
prosecutor practices, the number of lawyers assigned to indigent defense cases, the type and
number of support staff assisting these lawyers, etc.

         It is difficult to gauge indigent defender caseload throughout Georgia for several reasons.
First, the caseload data reported to GIDC is not reliable. Second, most indigent defense programs
in Georgia do not use full-time public defenders, but use panel attorneys, and in most panel
programs there are enough participating lawyers that no single lawyer would exceed the
recommended caseloads. Then again, most panel attorneys also have a private practice, and there
is no way to determine what their overall workload levels are like. Many indigent defense
programs use contract lawyers working under a fixed fee and accepting an unlimited number of
cases a year. Typically contract attorneys, like panel attorneys, also have private practices, with
no restriction on their private practice workload. We frankly do not have enough information to
assess overall attorney workload of the attorneys in counties we reviewed. Attorneys from each
of the four public defender programs told us they felt their caseload was excessive.


4.12   PROBLEMS UNIQUE TO RURAL AREAS

        County populations in Georgia range from roughly 2,000 to over 816,000 inhabitants.
Rural counties have the same obligations to provide representation, investigation and appropriate
expenses of litigation to indigent defendants as do the large urban counties. However, there are
several issues that can make it more difficult for smaller counties to meet their indigent defense
obligations. One issue is the overall shortage of funds for county services in small counties. A
chief superior court judge in a rural circuit told us that he feels acute pressure from the counties to
cut back on expenditures on counsel, experts and investigators.

       In rural circuits, superior court judges ride circuit to sit in multiple counties, district
attorneys' offices cover an entire circuit, and law enforcement offices often have limited staff and
resources. Criminal court terms occur as few as twice a year in some Georgia counties. Thus,

56
   (Guideline 6.1) 150 felonies, 300 misdemeanors, 25 appeals, 250 juvenile offender, 60 juvenile dependency
or 250 civil commitments a year. (These numbers are not aggregate. They are per attorney per year.)


                                                    69
despite the fact the caseload is much lower, the processing of criminal cases can take longer in
rural counties than in urban counties. For indigent defendants, this can mean lengthy waits before
counsel is appointed to represent them, and if they cannot make bond, they often spend that entire
time waiting behind bars.

        In misdemeanor cases, some rural counties hold arraignments just once a month.
Likewise, in felony cases, grand juries may only convene once every other month. In counties
with a policy of only appointing counsel after indictment, defendants remain detained from three
to six months (sometimes longer) before counsel is appointed. Another challenge in some small
counties is finding enough lawyers who are willing and able to do indigent defense work.

        A strong sentiment in our site work was that many people in rural areas are doubtful a
statewide indigent defense program run from Atlanta will be sensitive to the different types of
issues affecting rural areas. While many people in smaller counties agreed that there was a need
to improve indigent defense in Georgia, they suggested alternative approaches to an
Atlanta-centric statewide system, such as one that was organized on a judicial district basis with
input from people working in the local criminal justice systems.

       The District Attorney and jail administrator serving Bulloch County felt that the county
needed a full-time public defender office in order to properly serve indigent defendants. Three
lawyers in a law firm located 45 minutes from Statesboro represent indigent defendants in
Bulloch County Superior Court.


4.13   INDEPENDENCE

       Supreme Court Guideline 2.8 addresses the need for independence of court-appointed
counsel, stating, “Independent counsel shall be politically autonomous and free from influence,
guidance or control from any other authority in the discharge of his/her professional duties, within
the bounds of the law and the Code of Professional Responsibility.”

        We encountered several practices that call into question the independence of indigent
defense counsel in Georgia. For example, in Dougherty County, the magistrate judge is on the
Superior Court contract panel and the juvenile court judge accepts both juvenile court and state
court appointments. In Baldwin County, the chief judge is chair of the tripartite committee. In a
number of counties in the Eighth Judicial District, the indigent defense administrator also serves
as chair of the tripartite committees. By his own accounts, the indigent defense
administrator/tripartite committee chair works closely with the chief judges on indigent defense
issues. Similarly, in Richmond County, we were told the chief judge is the force behind all
indigent defense policy, despite the “structures” of an indigent defense office and a tripartite
committee. In Floyd County, the juvenile court judge contracts with the juvenile contract
attorney and, under the terms of the contract, can fire the attorney at will.

       We do not believe that such practices are intended to undermine independence of indigent

                                                70
defense counsel. In most cases, they likely arose out of a concern for getting the job done in the
most efficient way possible. However, the practices raise questions about true independence.

        One of the interesting things observed in our site work was the frequency with which
individuals act as judge in one venue and have legal practices in another, all in the same county or
circuit. For example, we met one panel attorney in Chatham County who took court
appointments to indigent defendant cases in superior court and also served as a municipal court
judge. The state court judge in Toombs County is also a municipal court judge and has a private
practice. The chief part-time juvenile court judge in Dougherty County holds a part-time indigent
defense contract in Dougherty County State Court and has a private practice; the other juvenile
court judge, who is full-time, is also the full-time juvenile court administrator and has a private
practice. The magistrate judge has an indigent defense contract in superior court. In Baldwin
County, the 2001 panel list includes the county's juvenile court prosecutor as one of 10 superior
court panel attorneys.


4.14     DELAY IN INDICTMENT/ACCUSATION & ITS EFFECT ON JAIL
         POPULATION

         Jail overcrowding is a common problem for jails throughout the country. In many counties
visited in Georgia, pre-trial detainees who could not make bond contributed to the overcrowding
problem. Further compounding the problem in a number of counties was delay in indictment or
filing of accusation. In Habersham County, for example, we were told the shortest time from
arrest to indictment is three months, and the longest time is 1-1/2 years (this has reportedly
happened about five times over the last eight years). The typical waiting period for an indictment
is six to nine months. Statewide, as of April 4, 2002, 58% of inmates at county jails in Georgia
were awaiting trial.57

       Significant numbers of pre-trial detainees who sit for months prior to disposition of their
cases add high and unnecessary jail costs to counties, particularly when the defendants are held
on minor charges. Although no statewide data exists on the average daily cost for housing jail
inmates, we were told by various local jailers that the cost is about $55/day. Early intervention
and pre-trial services programs can effectively reduce the number of non-violent pre-trial
detainees and save the counties money. Unfortunately, we found these sorts of programs were
uncommon in the counties visited, with, as usual, some notable exceptions.

        Chatham County, where it costs $54/day to house an inmate at the jail, has a pre-trial
services program that interviewees confirmed saves the county in jail costs. Eligible defendants
can get out of jail pre-trial on a judicial order. Defendants must check in two or three times a
week with pretrial services to ensure they are complying with curfew, going to school and/or
working. (A defendant has to be working or going to school to participate in the program. No

57
     Georgia Department of Community Affairs County Jail Inmate Population Report, April 4, 2002.


                                                    71
defendants charged with crimes against the person or serious felonies are considered.)

        Cobb County has a similar pre-trial services program. Eligible defendants can post 10%
of their bail and get their money back at the conclusion of their case, less a 10%
administrative fee. These so-called “10 percenters” are under supervision of the program,
similar to probation supervision, which was described as a productive feature for
defendants who are in school and need encouragement to attend class regularly.

       There are a couple of other initiatives of interest in Cobb County related to managing jail
populations and expediting cases. In Georgia, if a defendant has been in jail for 30 days with
no bond, he is entitled to a bond hearing. Cobb County uses a contract attorney to assist all
defendants without counsel on a bond hearing calendar. A contract attorney is also used as
an early intervention public defender at first appearance. Superior court judges in Cobb
County authorized a magistrate to take these special, early pleas, which are done two days a
week. The calendar was described to us as a sort of defendant-directed fast track. There is
no obligation on defendants to participate, but if they want to expedite their case and
negotiate a plea, the court tells them the early intervention public defender will help them.
The public defender meets with an assistant district attorney and reports back to the
defendant with the assistant district attorney’s recommendation. The defendant can accept
or reject it. Care is taken to document the process, showing that the defendant is not being
coerced to accept the offer. The contract attorney is paid for each defendant appointed in
this court, not for each plea entered. There is some continuity of representation, too: if a
plea sheet is drawn up and the defendant rejects the plea, that sheet will be given to the
attorney who is appointed to handle the case.

         Finally, Cobb County has a special “indict or release” calendar that was created by
the superior court judges. In Georgia, speedy trial rules do not apply until after a
defendant is indicted. Thus, until an indictment is returned, a defense attorney is somewhat
limited in what he or she can do. Per a local court rule, judges can get involved if a
defendant has been detained more than 45 days without bond, or has not been indicted.
The district attorney’s office has a goal of indicting all felony defendants within 180 days
from arrest but that does not always happen. Once a month, the presiding judge hears
motions from defense lawyers alleging that the district attorney’s office has failed to indict
its clients within 45 days, thus bond should be reduced, or that indictment should be
returned, or that the defendants should be released on personal recognizance. The judge
will listen to the assistant district attorney’s explanation for the delay, and if the judge
doesn’t think it’s reasonable, he or she will modify bond, and sometimes release a defendant
on personal recognizance. The calendar helps move the system along.58

58
    This local policy was adopted under authority of Rule 26.3 of the Uniform Superior Court Rules, which states
that, “The district attorney shall notify the chief judge in writing of the name of any unindicted accused who has
been in custody under criminal felony charges for 45 days within 2 business days after the said 45-day period has
run. The chief judge may take any action deemed necessary or appropriate under the circumstances.” (emphasis
added)


                                                        72
4.15    DISPARITY IN PROSECUTION AND DEFENSE RESOURCES

        The District Attorney is the chief prosecuting officer for the State of Georgia within each
of the State's 49 judicial circuits. Judicial circuits consist of one to eight counties.

       Each District Attorney is an elected constitutional officer who is part of the judicial
branch of state government. The District Attorney represents the State of Georgia in the trial and
appeal of criminal cases in the superior court for the judicial circuit and delinquency cases in the
juvenile courts.

         Each District Attorney's office has a full-time staff of assistant district attorneys,
investigators, victim assistance and administrative personnel who assist the District Attorney in
carrying out the duties of the office. In each circuit, state funds pay the salaries of the elected
district attorney, two secretaries, one investigator and a limited number of assistant district
attorneys, based on the number of superior court judges in the circuit. For example, in 2002, state
funds for the district attorney’s office in Tallapoosa Circuit, which has two superior court judges,
paid for three assistant district attorneys and an additional assistant district attorney who
prosecutes drug cases.

        The state FY 2003 budget for district attorneys in Georgia is $42,945,077, of which
$3,719,573 goes to the Georgia Prosecuting Attorney’s Council. The Council acts as an
administrative arm for district attorneys. The majority of the remaining $39,225,504 goes toward
payroll, but some is used for travel and training expenses. The state pays for annual district
attorney CLE costs. County funds cover the remaining costs of district attorneys’ offices,
including rent, equipment and utilities. Counties may supplement district attorney’s offices with
additional personnel, too. There is no statewide data available on the additional funding going
toward district attorneys from counties, but the Prosecuting Attorneys’ Council suspects that the
majority of funding for district attorneys’ offices is paid by counties in Georgia.59

        In 64 of Georgia’s 159 counties, misdemeanor cases (cases where the maximum
punishment cannot exceed 12 months in jail) are prosecuted by the Solicitor General. The
Solicitor General is an elected county officer who represents the State of Georgia in the trial and
appeal of misdemeanor criminal cases in the state courts and performs other duties as required by
law.

        In 20 counties, the Solicitor General is a full-time official with a staff of assistants,
investigators and administrative personnel; in 44 counties, Solicitors General are part-time

 59
    In Bulloch County, for example, the District Attorney (whose circuit includes four counties, among which
 Bulloch is the largest) reportedly received $271,735 from Bulloch County, in addition to the state
 appropriation. When we visited, the office was staffed by 8 full-time attorneys and one full-time investigator.
 In contrast, the line item budget for indigent defense in Bulloch County Superior Court was $170,000.


                                                      73
officials who may maintain a private law practice.

        In those areas without a state court, and in Chatham, Dougherty, Miller and Rockdale
counties, misdemeanor cases are prosecuted by the District Attorney.60 Deprivation and
termination of parental rights cases are prosecuted by Special Assistant Attorney Generals, who
are state funded.

       Statewide budget information for solicitors general is not available.




60
   Information on the offices of District Attorneys and Solicitors General is from the Prosecuting Attorneys’ Council
of Georgia: see http://www.ganet.org/pacg/index.html.




                                                        74
        The level of resources available for prosecution and indigent defense in Georgia is not
balanced. While there is no data available on the exact percentage of defendants who are indigent
and represented by court-appointed counsel in Georgia, it is well over 50% of all criminal
defendants and juveniles accused of delinquency. The percentage is higher in felony cases and
appeals than misdemeanors because it is more expensive to retain a lawyer in felonies and appeals
than in misdemeanor cases. Similarly there is greater use of appointed counsel in juvenile
delinquency cases, because children are unable to afford counsel and/or their parents or guardians
are unwilling to pay for counsel.61 The FY 2003 total state budget for district attorneys -- which
only covers a portion of total funding for district attorneys and includes no funds for solicitors
general or special assistant attorneys general -- is just 13% less than the total spent on indigent
defense by the 152 counties that received state grant money in FY 2001 ($49,439,041). One
superior court judge in Clayton County recommended that panel attorneys have access to the
same resources – investigators and other personnel -- as do district attorneys. Similarly, a panel
attorney in Bibb County noted that since the state paid for training of district attorneys, it should
also pay for training of indigent defense counsel.

        The figure for indigent defense encompasses all expenses, including public defender
salaries, contract attorney and panel attorney payments, and ancillary services such as experts,
investigators and transcripts. In contrast, the state appropriation for district attorneys is primarily
for personnel costs. Simply looking at the total amount appropriated to prosecutors by state
and/or county government underestimates the value of services provided to them by federal, state
and local law enforcement and crime labs.

       The prosecution typically has available the services of advanced state and federal crime
laboratories, psychiatric and other mental health professionals employed by state and local
government; sophisticated investigative equipment used by law enforcement; and extensive data
banks that identify and locate individuals with criminal histories. In addition, prosecution often
has available hundreds of local law enforcement officials for case investigation and preparation.

61
   The only reliable national data on indigency rates dates back to 1986. The U.S. Department of Justice, Bureau of
Justice Statistics’ National Criminal Defense Systems Study (1986), prepared by Robert Spangenberg while working
at Abt Associates, lists “generally accepted indigency rates” of 48% of felonies, 25% of misdemeanors, 80% of
juvenile cases and 90% of appeals. See p. 33. According to the November 2000 Bureau of Justice Statistics
special report, "Defense Counsel in Criminal Cases," in 1992 and 1996 about 80% of defendants charged with
a felony in the nation's 75 most populous counties reported having public defenders or assigned counsel. See
p.5.




                                                      75
The costs for prosecutors' use of these important services are embedded in the budgets of other
federal, state and local agencies, making their monetary value extremely difficult to quantify. In
contrast, for defense counsel, the use of investigative, forensics, psychiatric, and other such
services either comes out of an indigent defense county operating budget or, in the case of a
court-appointed attorney, through a motion to the presiding judge.

        The prosecutor in most jurisdictions is responsible for screening all criminal cases brought
by law enforcement agencies and private citizens. Many of these cases are never charged and
thus there is no need for court-appointed counsel. However, while the prosecution typically
assigns one case to a particular prosecutor, regardless of the number of defendants involved, when
more than one defendant is involved in a particular case, multiple counsel must be appointed to
represent the defendants.

       Some necessary data are not available to do a thorough comparison of funding available to
prosecution and indigent defense in Georgia. For example, the cornerstone of any thorough
workload and budget comparison is a uniform method of counting cases. In other states we have
frequently found that prosecutors and public defenders count cases differently, e.g., district
attorneys may count cases by accusation, indictment, or warrant, while public defenders count by
charge or by defendant, etc. Budget comparisons between criminal justice agencies simply
cannot be accurately analyzed until the agencies are counting cases the same way. We do not
have any way to provide comparative caseload of prosecutors and indigent defense programs in
Georgia.

        Finally, the effect of court policies should be considered when making a comparison of
resources. Allocation of judicial resources, court policies regarding setting of pre-trial and trial
dates, and policies regarding the docketing, processing and scheduling of cases each affect the
operation of both prosecution and defense. These factors are very difficult to quantify.

        One reason for mentioning these considerations is that we heard a common refrain in
many counties visited. Many people – prosecutors, judges, defense attorneys and others – told us
 that they favor creation of either a local or regional or statewide public defender program, but
they worried that it would be too costly/and or politically unfeasible if such a program were
created “with parity” to the local district attorney’s office. The better approach to thinking about
funding for prosecution and indigent defense is “adequate and balanced” funding; not parity. As
things stand now, there is an imbalance of resources available to prosecution and indigent defense
in Georgia.




                                                 76
                                          CHAPTER 5
                              A SPECIAL LOOK AT FULTON COUNTY

        With 816,006 residents,62 Fulton County is Georgia's most populous county. According to
the Administrative Office of the Courts of Georgia, 15% of all felony cases filed in Georgia in the
2000 calendar year were filed in Fulton County.63 (The AOC does not have the number of
misdemeanor filings in Fulton County for 2000.) Because of its size, and because of the
complexity of its indigent defense system, we feel it is important to discuss Fulton County in a
brief, yet separate chapter.

        The indigent defense system is highly fragmented for misdemeanor cases and preliminary
hearings in felony cases in Fulton County. Outside of Atlanta, there are eight smaller
municipalities in the county which hear ordinance violations and misdemeanors that occur within
the local city limits. They also have jurisdiction for preliminary hearings in felony cases. Some of
the municipalities have local lock-ups and others do not, so some arrestees must be transported
from a local police station to the Fulton County Jail.

         There are two municipal courts in Atlanta. The City Court of Atlanta deals primarily with
traffic cases. It holds preliminary hearings for traffic-related felony cases and ordinance violations
and has jury trials in misdemeanor cases. The Atlanta Municipal Court handles non-traffic
ordinance violations and misdemeanors that are punishable by less than 6 months in jail and that
are charged within the city limits of Atlanta. It has no jury trials, but holds felony and
misdemeanor preliminary hearings in cases originating within the city limits. Two separate
public defender agencies – the City Court of Atlanta Public Defender and the Municipal Court
Public Defender – serve the two courts. Panel attorneys are appointed in conflict cases. Felony
cases where probable cause is found are bound over to superior court. Municipal public
defenders are no longer involved with defendants in felony cases once their cases are bound over.
This practice was at issue in the Stinson case, discussed below.

        There are many smaller police departments throughout the county, both public and
private, such as the MARTA Police Department, local college and university police departments,
and other local police agencies, that arrest individuals and take them to the various courts and
local jails. A number of people, including both state and superior court judges, reported there has
been a problem in Fulton County of police bringing arrestees to jail without police reports or
proper paperwork. Currently, there is a policy in effect in which the sheriff cannot receive a
prisoner without an arrest report.

62
     Source: 2000 U.S. Census.

63
     AOC Caseload of the Georgia Courts 2000, Research Review, Vol. 3, Issue 1, January 2002.




                                                       77
       There are three magistrate courts in the county: one at the North Annex, one at the South
Annex and one downtown at what is called the Justice Center or the Central Magistrate Court,
which handles a very large volume of cases every day. Recently it was decided to eliminate the
processing of criminal cases in both the North and South Annex and send them all to the Central
Magistrate Court.

        The problem of providing counsel to indigent defendants charged with ordinance
violations carrying a jail sentence and misdemeanors is complicated in Fulton County because
there is no single indigent defense system. Furthermore, depending on where the arrest is made,
the defendant may be required to appear initially in one of the many different courts discussed
above. (Yet additional problems with appointed counsel occur in state court, and are discussed
below.) Despite the presence of the two municipal public defenders in the City of Atlanta, we
received reports that there are still some indigent defendants in the municipal courts not receiving
counsel.

        Cases move on to state court if they are not either disposed of as a misdemeanor in the
local court or bound over in the local court to the Grand Jury. In superior court, once felony cases
are bound over and indicted, an indigent defendant at arraignment will be assigned to the Fulton
County Public Defender, or, if there is a conflict of interest, to either the Fulton County Conflict
Defender or a panel attorney. The Fulton County Public Defender handles adult felony cases,
juvenile delinquency cases and cases where juveniles are charged as adults in superior court (SB
440 cases).

        Indigent defense in Fulton County has been under a great deal of scrutiny since 1989,
when GIDC first received state funding for Grants to Counties. While state funds have been
provided to Fulton County for indigent defense programming, GIDC has never provided state
funds for the Fulton County Public Defender. Initially this was because the program did not meet
the GIDC Guidelines. At the request of GIDC, TSG conducted a review of the Fulton County
Public Defender office in 1990. Our report, Overview of the Fulton County Indigent Defense
System, described what we found to be a system on the verge of collapse, with public defender
attorneys responsible for caseloads far in excess of national standards and with a paucity of
necessary support services, such as investigators and paralegals. Following release of our report,
a great deal of attention was placed on the public defender office, particularly by the Atlanta Bar
Association and other local bar associations, the courts and county officials. Since that time,
sizeable increases have been made to the public defender's budget, allowing for hiring of
additional staff and leveling off of individual attorney workload. In addition, the Conflict
Defender was established in 1996.

       Despite an increase in resources for the Public Defender and creation of the Conflict
Defender, problems remained with processing indigent felony defendants through the Fulton
County criminal justice system in a timely manner. Jail overcrowding, driven in large part by the
pressure of pre-trial detainees, was a problem that was finally addressed in litigation. In Stinson


                                                78
v. Fulton County Board of Commissioners,64 the plaintiffs brought a class action against
defendants on behalf of "all persons charged with non-homicide felony offenses within Fulton
County who are not released on bond but who, instead, are incarcerated at the Fulton County Jail,
and who during the period up to, but not including, indictment or arraignment, are denied access
to counsel." The issue presented was that indigent defendants charged with felonies in Fulton
County were represented by the municipal public defender office up through the preliminary
hearing, but if they were bound over for indictment in the superior court, representation by the
municipal public defender ended. Felony defendants who were not able to post bond were forced
to remain in jail without counsel for several months before arraignment in superior court, at which
time the Fulton County Public Defender was finally appointed. The plaintiffs argued that they and
others in their class were being denied the rights guaranteed by the Sixth Amendment, the Due
Process Clause, the Equal Protection Clause and the Georgia Constitution.

        As part of the settlement of the Stinson case, Fulton County was ordered to continue to
maintain and adequately fund its Pre-Trial Services Program. In particular, Fulton County was to
make good-faith efforts to ensure that by the close of the next business day following booking
into the Fulton County jail, a Pre-Trial Services officer will evaluate all non-homicide felony
defendants who are unable to make bond for pre-trial release purposes. Further, if a defendant
has not retained a private attorney, the Pre-Trial Services officer must appoint the Public
Defender or the Conflict Defender and immediately notify the assigned office in writing. The
office will promptly assign an attorney to handle the defendant's case and notify the defendant of
the assignment.

        Fulton County was also ordered to provide the attorneys of the Fulton County Public
Defender and Fulton County Conflict Defender with a level of resources sufficient to ensure that
all indigent defendants receive a consultation within two business days following the appointment
of counsel. All information obtained from the defendant and other applicable documents are to be
immediately forwarded to the defense attorney assigned to the case.

        Under the Consent Order, Fulton County agreed to make good faith efforts to ensure that
the Fulton County Public Defender's Office and Fulton County Conflict Defender's Office achieve
an average non-homicide felony caseload of no more than 195 cases per calendar year within one
year of the order, 185 cases within two years of the order, and 175 cases within three years of the
order.

        During our site work in Fulton County, numerous interviewees praised the positive effect
that the Stinson consent order has had on felony representation of indigent defendants in the
county. One superior court judge told us he wished Stinson could be applied to the entire state.
Because of Stinson, the Public Defender and Conflict Defender carefully track their superior court
caseload. Stinson makes it clear that if the Public Defender reaches a certain case level, it can

64
     Civil Action File No. 1-94-CV-240-GET (1999).




                                                     79
request that further appointments not be made to the office, and instead go to the Conflict
Defender or panel counsel.

         Still, problems remain in Fulton County. One problem mentioned by several interviewees
is that superior court judges continue to have control of appointment and payment of panel
attorneys, which is viewed by some as a conflict. Appointments are reportedly not made on a
strictly rotational basis; some favoritism remains. Surely, though, the biggest problems are in the
State, Magistrate and Municipal Courts in Fulton County.

       Among these, the most serious problem has developed in state court involving indigent
defendants in misdemeanor cases who have been booked and held in custody at the Fulton
County Jail after original proceedings took place in the Municipal and Magistrate Courts in
Fulton County.

       One of the issues in state court relates to the overload of criminal cases in superior court.
Both superior and state court judges reported that because the superior court docket has become
so heavy with criminal cases, the civil cases have been delayed.

         For several reasons, hundreds of misdemeanor defendants, including those charged with
very minor offenses, remained in jail for several weeks without a court appearance or the
appointment of counsel. In the past, no public defender program has provided counsel in Fulton
County's State Court. Indigent misdemeanor defendants did not get a court-appointed lawyer
until they had been formally accused by the Solicitor General's office of the city of Atlanta. It
was only after a formal accusation was filed that the defendant's case was put on a judge's docket
in state court for review and appointment of a panel attorney. Further, we were told that if
misdemeanor defendants do not request a preliminary hearing, they may not receive one.

         Based upon data collected by the Southern Center for Human Rights (SCHR), many of
these misdemeanor defendants remained in jail without counsel for periods longer than could
have been imposed if they had been convicted and sentenced to the maximum penalty for the
offense. While Pre-Trial Services has had an office in the Fulton County Jail for several years,
their staff was available only to interview felony defendants booked into the jail and not
misdemeanor defendants. In March 2002, SCHR wrote a letter to the Chief Judge of the Fulton
County State Court and county officials setting out the problem in detail.

       In 1999, SCHR sued the county and Sheriff Jacquelyn Barrett in federal court on behalf of
Fulton County Jail inmates who were determined to be HIV-positive. The county settled the suit
in January 2000 and, since then, SCHR attorneys have monitored the jail for compliance with the
settlement agreement.65

          Shortly after determining in March 2000 that the county was not complying with his

 65
      Foster v. Fulton County, No. 1:99-cv-900 (N.D.GA; April 16, 2002) .


                                                       80
earlier order regarding treatment of HIV-positive inmates, Federal Judge Marvin H. Shoob
expanded his concerns beyond the HIV-positive plaintiffs. Last year, Judge Shoob began
addressing overcrowding as a root cause in the Fulton County Jail's chronic medical problems and
staffing shortage.

        On April 16, 2002, as part of the Foster case, Judge Shoob ordered Fulton County to
provide counsel within 72 hours to all Fulton County Jail detainees accused of a minor offense
who could not post bail. He also ordered the county to expand the authority of Pre-Trial Services
to supervise people arrested for misdemeanor offenses and ensure that all people charged with
misdemeanors are offered what the Judge termed was a reasonable bond. The judge also ordered
the county to impose a reasonable restriction on the length of time a person may remain in jail
without being accused, indicted or tried and, finally, to create an "all purpose" hearing calendar so
that misdemeanor detainees could appear before a judge within 72 hours of arrest.

        Under a new procedure that has been agreed to by all parties following the Federal Court
order in Foster v. Fulton County, No. 1:99-cv-900 (N.D.GA; April 16, 2002), all misdemeanor
and felony defendants who have not had their cases disposed of in one of the municipal or
magistrate courts in the county and are still in custody are sent to the Fulton County Jail.
Immediately after booking, each defendant is interviewed by Pre-Trial Services. Misdemeanor
defendants then appear in an all purpose session of the state court which has recently been
established. Although the ultimate goal is to have these hearings within 72 hours, we were
informed that currently the average time from arrest to arraignment is approximately five days.
Many defendants whose cases are not disposed of at the all purpose session are released from jail.
 Some defendants’ cases are dismissed, others’ are resolved in a bench trial, and still other
defendants bond out for further procedings.

         The new program in state court is being overseen by the deputy county coordinator for
criminal justice. The Fulton County Conflict Defender contracted to provide representation for an
initial period of 90 days. That time was extended until the end of 2002. The Conflict Defender
initially received five new attorneys, two paralegals and one social worker for the state court
work, which was limited to representation at the all purpose calendars. Under this program, by
mid-April 2002, the conflict defender had already represented over 850 defendants. The hope
was to increase the funding and staff in order to provide vertical representation on misdemeanors
that are not disposed of at the all purpose calendar within the time set out by Judge Shoob.




                                                81
                                 CHAPTER 6
             GEORGIA'S INDIGENT DEFENSE SYSTEM COMPARED WITH
                           SIMILAR STATE SYSTEMS

       6.1     Introduction

        When assessing a state's indigent defense system, The Spangenberg Group seeks to
identify other states with which to compare the system, in order to place the system in a broader
context. Making comparisons between various indigent defense systems is an imperfect science,
due to the wide number of variables that must be considered. Among the most important of these
variables are the following:

       •       Whether the system is funded entirely by county funds, entirely by state funds or a
               mixture of the two,
       •       Whether the system is organized at the county, regional or state level,
       •       Whether the state has the death penalty,
       •       Whether the system has a centralized organization responsible for statewide data
               collection, oversight and/or policy making,
       •       The percentages of cases handled by various providers in the state,
       •       The rate of pay for court-appointed counsel in the state,
       •       The population of the state,
       •       The availability of complete, up-to-date and reliable data,
       •       The way in which programs define, and, therefore, count cases (for example,
               whether a case is counted by charge, indictment, by assignment or by disposition),
       •       The percentage of defendants found to be indigent.

This being the case, we chose ten states to compare to Georgia based on the following criteria:

       •       States with a large number of counties,
       •       States whose indigent defense system receives at least 10% of its funding from the
               state,
       •       States with some form of state-wide indigent defense oversight body,
       •       States that are adjacent or geographically proximate to Georgia,
       •       States where reliable budget data is available.

        This is the methodology that we have used in other studies similar to the current one in
Georgia. The states we chose to compare with Georgia are: Alabama, Arkansas, Florida, Indiana,
Kansas, Kentucky, North Carolina, Ohio, Tennessee and Texas. Each of these states met several
of our criteria, which are set out in Table 6-1.




                                                82
                                                        Table 6-1
                                                 Comparison States
   State            Population    Number of Death Row State Wide Primary Indigent Indigent Defense System at
                                  Counties Population Commission Defense System Trial Organized by
                                                                 at Trial

   Texas             20,851,820       254         455           Yes       Assigned           County
                                                                          Counsel/
                                                                          Contract

   Florida*          15,982,378       67          386            No       Public Defender Region

   Ohio              11,353,140       88          204           Yes       Public Defender/ County
                                                                          Assigned
                                                                          Counsel

   Georgia           8,186,453        159         127           Yes       Assigned           County
                                                                          Counsel/
                                                                          Contract

   North Carolina    8,049,313        100         226           Yes       Assigned        State
                                                                          Counsel/ Public
                                                                          defender

   Indiana           6,080,485        92           39           Yes       Public Defender/ County
                                                                          Assigned
                                                                          Counsel/
                                                                          Contract

   Tennessee*        4,877,185        95          104            No       Public Defender State

   Alabama           4,040,587        67          188            No       Contract/          County
                                                                          Assigned
                                                                          Counsel

   Kentucky          4,041,769        120          41           Yes       Public Defender Region/ State

   Kansas            2,688,418        105           4           Yes       Public Defender State/County

   Arkansas          2,673,400        75           40           Yes       Public Defender State
*Both Florida and Tennessee, unlike the other states in this comparison, publicly elect their public defenders.


           6.2    Indigent Defense Expenditure

        Table 6-2 displays the state and county indigent defense expenditure, the per-capita cost
of indigent defense, and the percentage of state funds in each comparison state, as reported to us.




                                                           83
                                                  Table 6-2
                                State and County Indigent Defense Expenditure
                                    and Cost-Per-Capita in Selected States66

State           Population   State          County             Total          Fiscal   Total           Percentage
                             Expenditure    Expenditure        Expenditure    Year     Expenditure-    of State
                                                                                       per-Capita      Funds

Texas*          20,851,820   $303,987       $93,517,886        $93,821,873     2001       $4.50            0%

Florida         15,982,378   $141,308,564   $35,000,000        $176,308,564   2000-       $11.03          80.2%
                                                                              2001

Ohio            11,353,140    $47,090,219   $35,901,376        $82,991,595     2001       $7.31           56.7%

Georgia         8,186,453    $5,893,22767   $42,451,674        $50,600,423     2001       $6.18           11.6%
                                            68                 69



North           8,049,313    $68,411,000    $0.00              $68,411,000     2001       $8.49           100%
Carolina

Indiana         6,080,485    $10,400,000    $24,000,000        $34,400,000     2001       $5.66           30.2%

Tennessee       5,689,283    $38,275,900    $5,684,260         $43,960,160     2001       $7.73            87%

Alabama         4,447,100    $32,900,000    $0.00              $32,900,000     2001       $7.40           100%

Kentucky        4,041,769     $25,380,000   $1,464,776         $26,844,767     2001       $6.64           83.4%



66
    The figures reported in this table do not include any funds that may have been spent by municipalities in these
states.

67
     Includes Grants to Counties and Multi-County Public Defender funds.

68
    This figure represents the total expenditure of the 152 counties that applied for GIDC funding in 2001, plus
Clerks and Sheriffs Fund contributions to these counties. The figure does not include indigent defense expenditure
information for the seven counties that did not apply for GIDC funding.

69
     Includes $2,225,522 in State Bar IOLTA funds.




                                                          84
Kansas          2,688,418    $15,178,023    $8,539,545        $23,717,568    2001        $8.82           64%

Arkansas        2,673,400    $12,333,561    N/A               N/A            2001         N/A            N/A


*The county expenditure information for Texas is for the period 10/1/00-9/30/01 and includes information from 244
of the state’s 254 counties. The state expenditure was for compensation of appointed counsel handling capital state
habeas cases. State appropriations for trial-level indigent defense services began with passage of the Fair Defense
Act in 2001. The Act created a statewide Task Force on indigent defense, which, like GIDC, awards state grant
monies to counties that comply with its standards and guidelines. The Act appropriated $20,000,000 for state Grants
to Counties for FY 2002-2003.

        A variety of factors contribute to the differences in the cost-per-capita of indigent defense
from state to state. Because of these variables it is not possible to make definitive comparisons of
the total costs-per-capita of the states' indigent defense systems. Among the most important
variables are the following:

         •       Differences in the types of cases handled in a state
                 Some states have a large number of death penalty cases, which are extremely
                 costly compared to other types of cases. Other states have a significantly higher
                 number of indigent direct appeal and state post-conviction cases.
         •       Differences in the demographics from one state to the next
                 The percentage of defendants found to be indigent may range significantly from
                 state to state. Furthermore, the percentage of urban poor varies from state to state.
         •       Differences in the statutory right to counsel from state to state
                 Some states have expanded the right to counsel substantially beyond the
                 requirements of the U.S. Constitution as interpreted by the U.S. Supreme Court,
                 creating more cases that require court-appointed counsel. In some of these states
                 there is a practice of local judges not appointing counsel in less serious
                 misdemeanor cases, notwithstanding the fact that it is required by law.
         •       Differences in the cost of appointed counsel and public defender systems
                 There is great variation in the compensation rates paid to court-appointed counsel
                 from state to state. Furthermore, some states impose compensation caps on
                 individual cases. Similarly, a few states that are predominantly served by a public
                 defender system have higher public defender salaries than other states. Often this
                 is the result of statutory or other authority which requires salary parity with the
                 local prosecutor. Finally, some states allocate a higher budget for expert witnesses
                 and investigators.

        As Table 6-2 indicates, Georgia has the smallest percentage (11.6%) of state funds of any
of the comparison states with the exception of Texas. In 2001, legislation passed in Texas that
has mandated a major overhaul of the state's indigent defense system. This will likely result in
Texas spending a larger percentage of state funds than Georgia within the next year. It is also
worth noting that 24 states in the country currently provide 100% of the funds for indigent
defense services.



                                                         85
                                 CHAPTER 7
             WHO IS THE VOICE FOR INDIGENT DEFENSE IN GEORGIA?

        There is disagreement in Georgia over whether the Georgia Indigent Defense Council
should be the primary watchdog and advocate for indigent defense in Georgia. Under its statutory
charge, it should be GIDC that monitors local indigent defense programs' compliance with
Supreme Court guidelines in those jurisdictions that participate in its Grants to Counties program.
 The vast majority of counties (152 of 159) participate in this program. Certainly, among the
counties receiving state money, GIDC should have the power to assist programs that are not in
compliance, and, where necessary, bring the appropriate pressure to remedy programs that fail to
meet Supreme Court guidelines. In reality, it has not been GIDC that plays this role. Nor do
local indigent defense administrators play the role of advocate for indigent defense - their role is
typically strictly administrative. Recent successful efforts to improve local indigent defense
programs have been the result of pressure brought by the media and/or by litigation.

         Litigation, or the threat of litigation, filed by the Southern Center for Human Rights
(SCHR) and others has been the recent catalyst for change in several Georgia counties. In August
2001, SCHR filed a lawsuit in state court on behalf of 15 inmates in the Coweta County, Georgia
jail alleging that poor defendants facing charges in Coweta County Superior Court are
systematically and routinely denied their constitutional right to counsel, to due process and to
equal protection of the law. Bowling v. Lee (Superior Court Coweta County Ga. filed Aug. 10,
2001). The lawsuit sought class action status and asked for declaratory and injunctive relief
compelling sweeping changes in the way in which indigent defense services are provided in the
county. The indigent defense system at the time consisted of two lawyers working under contract
with the county.

       Defendants included the chief judge in Coweta County, Governor Roy E. Barnes, Coweta
County commissioners, members of Coweta County's Tripartite Indigent Defense Committee, the
two contract defense lawyers and Coweta County prosecutors.

        Plaintiff's counsel claimed that more than half of those convicted in Coweta County in the
past two and one-half years were found guilty without benefit of counsel. Others allegedly
languished in jail for months without seeing a lawyer. Representation for those who managed to
talk to a lawyer was considered inadequate: lawyers did not investigate the cases or vigorously
defend their clients.

        The County responded to the claims by terminating the contract of the two contract
defenders as of Dec. 31, 2001, and agreed to create a public defender office. The county hired a
full-time Indigent Defense Administrator and a panel of 13 lawyers to take appointments until the
public defender office is up and running, which was expected to occur in June 2002. SCHR opted
to hold the litigation in abeyance until after June 2002, waiting to see if the public defender office
is indeed created.

       In McDuffie County, after investigating the indigent defense system, SCHR staff sent an

                                                  86
advocacy letter to county officials and threatened to file a lawsuit, absent any action to improve
the system. The County fired the contract defender, and replaced him with two new contract
lawyers. In Dodge County, as discussed earlier, a poor-performing contractor was terminated
this year only after a scathing article detailing the problems ran in The Atlanta Journal
Constitution.

        The Foster v. Fulton County directive, concerning serious delay in providing counsel to
indigent defendants in Fulton County's State Courts, was issued within the context of a 2-year-old
settlement agreement in a case brought by the SCHR on health care for HIV-positive inmates at
the Fulton County Jail. Foster v. Fulton County, No. 1:99-cv-900 (N.D. Ga. April 16, 2002). The
SCHR convinced a federal judge to piggyback the issue of the county's treatment of indigent jail
inmates onto the medical care settlement without being forced to litigate a new and separate
suit.70 The Stinson lawsuit, which concerned serious delay in appointment of counsel for felony
defendants detained pre-trial in the Fulton County jail, was brought by private counsel. Stinson v.
Fulton County Board of Commissioners, Civil Action File No. 1-94-CV-240-GET (1999). There
is no question that these systemic challenges were significant forces that brought about needed
change to indigent defense programs in Georgia. The question is, why must change only come
about when deficient indigent defense systems are sued or become publically pilloried in the
press?

        The State Bar of Georgia has been steadily pressing for improvement to indigent defense
in Georgia since the 1960s. The Bar’s early efforts are discussed in Chapter 3. In 2002 the State
Bar’s Committee on Indigent Defense promulgated and the Board of Governors adopted what it
calls the “State Bar Proposal in Support of Supreme Court Commission on Indigent Defense.”
The document asks the Commission to consider six conclusions and recommendations as part of
its evaluation of Georgia’s indigent defense system. Two key provisions read as follows:

        Indigent defense is a state responsibility, and should be fully funded by the state
        at a level that adequately protects the constitutional right to effective assistance of
        counsel in criminal proceedings.

        In order to ensure a uniform quality of representation throughout the state,
        Georgia should adopt a public defender system, organized by judicial circuits,
        that relies upon appointed counsel for conflict and overflow work and is subject
        to discernible professional standards administered uniformly on a statewide basis
        by an independent oversight commission. The commission should be authorized
        to permit judicial circuits to implement alternative delivery systems if the

70
   The Southern Center sued the county and Sheriff Jacquelyn H. Barrett in 1999 on behalf of the jail's HIV-positive
inmates. The county settled the suit in January 2000, and since then Southern Center attorneys have monitored the
jail for compliance with the settlement agreement.




                                                        87
         commission determines that the alternative system is designed to meet or exceed
         the quality of indigent defense representation provided by public defender
         systems and that the alternative system complies with all applicable uniform state
         standards relating to indigent defense representation.
        We sense from our work reviewing indigent defense programs in 19 counties that there is
an overall recognition that improvements can and should be made to Georgia’s indigent defense
system. There is disagreement, however, on how to structure an improved system, which leads to
inertia and a lack of leadership pressing for change. Still, attention is clearly being paid to the
issue, which makes the current climate and momentum for change ideal. We feel that the recent
efforts of the State Bar, the Southern Center for Human Rights, reporters and editorial writers
from local and national media, and private lawyers will assist the Chief Justice’s Commission on
Indigent Defense and also encourage the General Assembly to give serious attention to ths issue.




                                                 88
                                                    CHAPTER 8
                                                     FINDINGS

        The findings below reflect The Spangenberg Group’s overall impressions of Georgia’s
indigent defense system. These impressions are based primarily upon our site work in the 19
sample counties, including our interviews with hundreds of individuals whose work involves the
handling of cases of indigent criminal defendants, juveniles accused of delinquency, and
deprivation matters. Additionally, in making the findings below, we used quantitative data, such
as caseload and budget figures, assigned counsel fee schedules, Administrative Office of the
Courts caseload data, and other secondary information such as court orders from litigation
concerning systemic deficiencies of indigent defense in Georgia, various reports and press clips.
We also relied on information and testimony presented at the monthly meetings of the Chief
Justice's Commission on Indigent Defense. Finally, the findings are based on the perspective and
experience TSG has gained working in Georgia over the years.

3.         A lack of program oversight and insufficient funding are the two chief problems
           underlying a complete absence of uniformity in the administration of and quality of
           indigent defense services throughout the 19 Georgia counties we studied. We suspect this
           is equally true statewide among all of the state’s 159 counties. Despite what appears to be
           a structurally sound statutory scheme for administering indigent defense services in
           Georgia, in practice the administration of services and quality of representation vary
           widely from county to county and among circuits. In many counties we visited, there is
           little or no oversight of indigent defense attorney performance or qualifications. There is
           little or no enforcement of the Guidelines of the Supreme Court of Georgia for the
           Operation of Local Indigent Defense Programs (“the Supreme Court Guidelines”).

           In comparison with other similarly situated states,71 indigent defense is substantially
           under-funded in Georgia. Compared with the nine other states in our comparison for
           which state and county expenditure data is available, Georgia ranks 8 out of 10 in cost per
           capita expenditure (see Table 6-2). There is little likelihood of improvement to the system
           without a substantial increase in funding. However, increased funding alone will not
           substantially improve the quality and uniformity of indigent defense services; there must
           also be program oversight and accountability. Indigent defense services throughout
           Georgia are not adequately fulfilling the promise of effective indigent defense services, as
           mandated by the laws and constitutions of the United States and Georgia.

4.         State funds constitute a very low percentage of total funding for indigent defense in
           Georgia. State funding only comprises about 11% of all funding for indigent defense in
           Georgia, and the availability of funding for indigent defense programs varies substantially
           among the state’s 159 counties. (The state currently pays roughly 12% of the cost of

 71
      Similar population, geographic region, and/or type of indigent defense delivery system.




                                                            89
          indigent defense in the 152 counties that participate in the state Grants to Counties
          program. The other seven counties pay all of the local costs of indigent defense.) The
          increase in state funding for indigent defense since GIDC was created has been minimal
          (see Table 3-1). Compared to other states, the percentage of state funds for indigent
          defense is low (see Table 6-2). Because of their limited tax base, many counties in
          Georgia can’t adequately fund indigent defense, even if they wanted to.

5.        While most people interviewed in our site work support increased state funds for indigent
          defense, some people, especially judges, continue to oppose increased centralized
          oversight of indigent defense in Georgia. In our site work we heard repeated variations of
          a central theme. Judges, understandably, want to continue to have input into local
          indigent defense systems, particularly panel and contract systems, because they feel that
          they know the lawyers who come before them better than anyone else. Some judges feel
          that they alone can evaluate each attorney’s level of experience and qualification to handle
          certain types of cases. Judges in rural areas, in particular, resist any attempt to improve
          centralized oversight for indigent defense. An oft-stated view is that judges in rural areas
          don’t want “Atlanta” telling them what to do, referring to the prospect of a statewide
          indigent defense system that is administered from Atlanta. This viewpoint is well-
          intentioned, but can conflict with attempts to improve indigent defense in Georgia.

6.        Two of the biggest problems facing indigent defense in Georgia and efforts to improve it
          are its lack of independence from the judiciary, and a steadfast unwillingness on the part
          of some judges in the state to support a system that grants this independence. For
          example, judges in some counties continue to influence the type of local indigent defense
          system(s) used, participate in review and reduction of panel attorneys’ vouchers, and fail
          to approve or adequately compensate experts and investigators when appropriate.

7.        Under Georgia law, judges have inherent power to appoint counsel to represent indigent
          defendants and to order compensation and reimbursement from county funds in individual
          cases as the proper administration of justice may require.72 However, the wide discretion
          given to judges in some counties over attorney selection at the very least creates the
          potential for conflicts of interest and the appearance of conflicts of interest. Several court-
          appointed and contract attorneys expressed concern that if they were viewed by some
          judges as zealous advocates – e.g., they filed several motions in one case or demanded
          trials – they ran the risk of being removed from the ad hoc counsel appointment list or
          denied a future contract.

8.        In most of Georgia’s local indigent defense programs, there are few mechanisms in place
          to guarantee that defense lawyers are consistently held accountable for the quality of
          representation they provide to indigent defendants. In most counties there are no

 72
      O.C.G.A. §17-12-44.




                                                    90
     consistent standards, guidelines or oversight regarding training and experience, caseloads,
     performance or other facets of effective representation. A great many attorneys do work
     hard to provide high quality representation and many judges choose to exercise some
     discretionary oversight of attorneys in their courts. But in most counties this is entirely
     voluntary and there are no established procedures to guarantee that adequate
     representation is consistently provided in every case and in every court.

9.   Lack of consistency and accountability have a deleterious impact on the consistency and
     quality of representation provided to indigent defendants from county to county and often
     result from wide variations in local criminal justice system practice. These differences
     include:

     •      Wide differences in how quickly defense counsel is appointed. Although the
            Supreme Court Guidelines require that indigent defendants be apprised of their
            right to counsel and appointed counsel if requested within 72 hours from detention
            or arrest, delay in appointing counsel soon after arrest is a pervasive and serious
            problem in a number of counties we visited, particularly in more rural counties.
            In some counties defendants can wait in jail from two weeks to more than six
            months before counsel is appointed. In worse case scenarios, we were told,
            defendants remain in custody for up to one year without appointment of counsel.
            This is a particular problem in a few counties in our sample where some felony
            courts do not appoint counsel until after indictment, even for defendants who are in
            custody. The problem, however, is not isolated to felony cases. Misdemeanor
            defendants who qualify for and seek appointed counsel can sit in jail for days, and
            even weeks, before counsel is appointed.

     •      Wide differences in the compensation paid to defense counsel and hence in the
            lawyers’ incentive to fully represent their clients. Contract systems - used in more
            than a third of all counties - have widely divergent compensation schemes
            throughout the state that are not uniformly based on expected caseload, level of
            experience of counsel, whether the pay covers attorney overhead, etc. Most panel
            systems reviewed have the GIDC hourly compensation rates in place but also
            restrict pay to per-case caps (e.g., $250, $500, $900 or $1,500). Attorneys may
            only receive compensation above these caps with authorization of the local
            Tripartite Committee. At least one county - Chatham County - restricts the hourly
            rates to an event-based schedule (plea, open plea, dismissal, trial, etc.). And while
            public defenders have salary parity with district attorney staff in DeKalb and
            Houston counties, other public defender programs do not have salary parity.

     •      Wide variations in how courts determine whether a defendant is indigent – and
            hence whether the defendant receives appointed counsel at all. Some counties use
            the federal poverty guidelines to determine indigency, while others use
            homegrown rules of thumb.


                                              91
        •        Wide variation among local indigent defense systems in the level of attention paid
                 to ensuring that adequate counsel is provided to indigent individuals convicted of
                 or facing felony and misdemeanor charges, accusations of juvenile delinquency
                 and deprivation proceedings.

        •        Differences in the frequency of court proceedings: in some rural counties, there are
                 as few as two terms of court a year.

8.      The model of the tripartite committee, while seemingly laudatory on paper, has, in
        practice, failed to effectively monitor or administer indigent defense in many
        counties. The model of state grant-making and local control has not worked.

        •        The superior court has a duty to nominate a representative to the local tripartite
                 committees. However, some judges continue to have too much influence over, and
                 sometimes overt participation in, local tripartite committees. In one county visited,
                 the superior court judge has appointed himself to the committee and serves as the
                 chair. In four other counties visited, the indigent defense administrators are the
                 court’s representatives on the tripartite committees and serve as the chairperson.

        •        The role and duties of tripartite committees vary: some meet monthly and
                 review/cut vouchers; some approve panel members; some meet just twice a year
                 and do very little, leaving operation and oversight of indigent defense to the
                 indigent defense administrator.

        •        The requirement of Supreme Court Guidelines 3.1 and 3.2 that the tripartite
                 committee monitor and assess the effectiveness of public defenders, contract
                 lawyers and panel attorneys is largely ignored.73 Many tripartite committees
                 engage in little or no monitoring of the quality of indigent defense representation.




73
   The two guidelines require tripartite committee members to monitor and observe attorney performance.
Indicators of performance are listed as: a) early entry into representation of indigents; b) vigorous and independent
representation of the client; c) participation in training activities and continuing legal education; and d) effective and
reasonable use of time and resources.




                                                           92
9.         There is no effective statewide advocate for indigent defense in Georgia. The Georgia
           Indigent Defense Council lacks the statutory mandate and political clout to serve in this
           role. The State Bar of Georgia has consistently pressed for improvement to indigent
           defense in Georgia74 but its efforts have not resulted in significant legislative reform.
           Systemic litigation, such as Stinson v. Fulton County Board of Commissioners 75 and
           Foster v. Fulton County,76 has resulted in important change for indigent defense in a few
           Georgia counties. Media coverage has brought to public attention some of the major
           problems of indigent defense in Georgia. But despite these efforts, there is no effective
           leadership for indigent defense in the state.

10.        Georgia counties are not accountable for the quality or structure of their indigent
           defense systems. In addition, just as there is no effective statewide advocate for
           indigent defense in Georgia, in many counties, there is no effective advocate for
           indigent defense at the county level. In many of the counties visited, no one regularly
           airs concerns about the indigent defense system and budget with county officials. Cobb
           County is an exception to this rule. Its indigent defense administrator is very proactive in
           communicating with the county and courts about indigent defense budgetary and practice
           issues.

11.        There is a common viewpoint among some judges, prosecutors, jail personnel and
           even some defense lawyers that indigent defendants facing minor charges do not
           need or want lawyers, even when they are entitled to appointed counsel by law.
           Especially in misdemeanor cases, there is a viewpoint by many people that waiver of
           counsel by indigent defendants is appropriate in certain instances. This is certainly true if
           waiver of counsel is knowing, intelligent and voluntary. However, there is a paternalistic
           perception in some counties that “we take care of defendants; we know the people in the
           community and their individual situations.” As a result, some defendants are not properly
           informed of their right to counsel, or are encouraged to first speak about the charges
           against them with the district attorney or solicitor general before applying for counsel.
           Some defendants, especially in misdemeanor cases, who face possible jail time either are
           given no lawyer and/or are detained a lengthy time before getting a lawyer or getting to
           court.

           The perception that indigent defendants facing minor charges don’t need or don’t want
           lawyers will have to shift if Georgia courts that hear misdemeanor cases are to comply

 74
  Most recently, in 2000, the Bar adopted a resolution in support of the Chief Justice’s Commission on Indigent
Defense, and in 2002, adopted the “State Bar Proposal in Support of Supreme Court Commission on Indigent
Defense.” The document asks the Commission to consider six conclusions and recommendations as part of its
evaluation of Georgia’s indigent defense system.

 75
      Civil Action File No. 1-94-CV-240-GET (1999).

 76
      No. 1:99-cv-900 (N.D. Ga. April 16, 2002).



                                                        93
          with Alabama v. Shelton, U.S. No.00-1214 (May 20, 2002). Shelton forbids imposition of
          a suspended sentence of imprisonment upon an indigent defendant who was neither given
          a court-appointed lawyer nor properly waived the right to counsel in the underlying
          proceeding.

12.       Georgia’s large number of counties and its multi-layered court system make
          improvements to indigent defense a particularly daunting task. Only one other state
          has more counties than Georgia: Texas has 254 counties and Georgia has 159 counties.
          Besides multiple counties, indigent defense programs operate in numerous courts:
          municipal, magistrate, recorder’s, probate, state, superior, appeals and the Supreme Court.
           As criminal cases move from one court to another, there is little or no connection among
          the different courts. “Balkanized” is the apt adjective for courts and indigent defense
          systems in Georgia.

          Chatham County’s indigent defense system presents an exception to this general rule. The
          county, which uses panel attorneys for indigent defense, has consolidated the adult case
          indigent defense functions of recorder’s, state and superior court within the
          Administrative Office of the Superior Court. (The juvenile system is administered
          separately.) Chatham County’s county-wide adult indigent defense program includes the
          municipalities. The court administrator generates a report from all of the jails in the
          county on who they are holding. All defendants are transferred to Chatham County jail
          and representation is vertical from appointment in recorder’s court through disposition in
          state or superior court, depending on whether the case is a misdemeanor or felony. This
          approach seems to work well from an administrative standpoint.

13.       Major problems were found surrounding requests for investigators or expert
          witnesses. Investigators and expert witnesses are not necessary in every criminal case.
          However, when defense counsel feel that they are necessary, they should be approved
          upon an ex parte showing and compensated adequately. Some court appointed lawyers
          once did but no longer ask for investigators or experts because their requests have been
          denied so often in the past. In one county we were told by defense lawyers and judges
          alike that experts or investigators will only be approved in death penalty cases. Attorneys
          in some counties told us they have never requested or used investigators or experts. A
          common practice is for judges to approve requests for investigators or experts, but only up
          to a cap of $300 or $500, which can prove to be inadequate in cases, for example,
          involving a great deal of scientific evidence. Many judges say they will pay more if the
          attorneys can justify the added expense.

14.       There are continuing problems concerning the availability of qualified interpreters
          to assist indigent defendants and their lawyers, despite a recent Supreme Court
          initiative designed to correct these problems.77 Many indigent defendants in Georgia

77
      See http://www.legis.state.ga.us/Courts/Supreme/interpretersrule.htm.



                                                       94
          do not speak English; thus, access to trained, professional interpreters who speak
          various languages and dialects is crucial. Some counties have had court-based
          interpreter services available for indigent defendants appearing in court. Many, however,
          rely on a variety of non-professionals to come “pinch hit” when a non-English speaking
          defendant appears in court. In Clayton County, we observed defendants bringing children
          to court to interpret for them. In Dodge County, inmates and jail guards are used by
          attorneys to interpret for clients. In Lowndes and Dodge counties, probation officers are
          used to interpret in court. Clayton County was coping with an interpreter shortage in
          magistrate court by relying on AT&T language lines for first appearance hearings. In
          most if not all counties we visited, the Supreme Court requirement that certified and/or
          registered interpreters be available to assist non-English speakers in court proceedings of
          Georgia was not being fulfilled, despite progress being made by the Commission on
          Interpreters to train and approve people as certified and qualified interpreters.
15.       Georgia lacks a systematic approach to identifying and assisting indigent defendants
          who suffer from mental illness. Indigent defendants with mental illness frequently
          spend long periods of time detained pre-trial without proper screening or treatment.
          Indigent defense lawyers are often not trained in how to deal with these clients. Mental
          health services – both public and private – either do not exist or are inadequate for
          defendants going through the criminal justice system.

16.       Based upon data from GIDC, the cost per capita for indigent defense in Georgia for
          FY 2001 was approximately $6.18, ranking Georgia eighth out of 11 states for which
          we have comparison information in per capita state and county expenditures.78 In
          FY 2002, the total expenditure for indigent defense in Georgia was estimated at
          $52,968,892, or $6.47 per capita expenditure.

17.       None of the 19 counties we visited provide sufficient funds to assure quality
          representation to all indigent defendants. While some counties clearly are better off
          than others, we did not find any that were adequately funded. This funding shortfall
          manifests in a number of ways including:

          •        Some counties pay flat fees for a particular type of case or event, e.g., $300 for a
                   guilty plea in a felony case. Other programs compensate attorneys on the $45/$60
                   hourly basis but cap per-case payments, e.g., to $265 in a misdemeanor plea.

          •        When authorized, counsel is frequently subject to a presumptive cap of $300 or
                   $500 for investigators and/or expert witnesses. Some attorneys are forced to do
                   their own investigation, which is particularly inappropriate when interviewing
                   witnesses whose credibility may later have to be impeached in court, which can
                   require the attorney to testify against the witness.


78
      See Table 6-2 for indigent defense expenditure data in 10 other states.



                                                            95
      •      Many attorneys told us that even when they submit itemized vouchers for the
             actual amount of work performed, their compensation claims are routinely
             reduced without explanation, usually by the tripartite committee but sometimes by
             the judge.

      •      Counsel who find that pay for indigent defense work barely covers their overhead
             have to make tough choices on how they handle their appointed cases: many admit
             they do not provide the same level of service that they do to retained clients; to do
             so would work a financial hardship on them. Often what suffers are client visits,
             either in or out of jail, investigation, legal research and zealous motions practice.
             The low compensation works as a disincentive for many attorneys to do the same
             level of work on appointed cases as they would in retained cases.


18.   There is an imbalance of resources between prosecution and indigent defense in
      Georgia. The GIDC 2001 Annual Report found that in Fiscal Year 2001, state funding
      for prosecution costs was comparable to county funding for indigent defense, while state
      funding for prosecution costs was more than eight times state funding for indigent
      defense. Total funding – i.e., state and county expenditures, plus clerks and sheriffs fund
      revenue, plus State Bar IOLTA funds – on indigent defense by the 152 counties that
      received state grant money in FY 2001 was $50,600,423. The state FY 2003 budget for
      district attorneys in Georgia is $42,945,077, of which $3,719,573 goes to the Georgia
      Prosecuting Attorney’s Council. This budget does not include supplemental county funds
      for district attorneys or county funds for solicitors general.

      The imbalance of resources between prosecution and indigent defense is evident in
      available support services, such as investigators and expert witnesses. The imbalance in
      available support services limits defense counsel’s ability to effectively represent clients.
      The imbalance is most prominent when evaluating in-kind resources available to the
      prosecution, such as the investigatory services of all local law enforcement agencies and
      resources made available by the state and federal government including analysis of
      forensic and scientific data.

19.   The public defender system is used by far fewer counties than appointed or contract
      attorneys. Interestingly, we heard more support for a local or statewide public defender
      program than we expected. Although there is considerable interest in many parts of the
      state in greater use of public defender programs, there are reservations about the logistics
      and costs of creating additional public defender offices. Reservations include worry that
      counties will not be able to adequately fund a public defender office and fears that salaries
      would be too low and caseloads too high. Numerous interviewees worried that a public
      defender system could never be created because it would have to be funded on par with
      the local district attorney’s office.

20.   In most of the counties we visited, there are no minimum eligibility criteria for

                                                96
      attorneys who wish to accept court-appointed cases. In some counties, the only
      requirement to get on a court-appointed panel is bar membership. In a number of
      counties, it is relatively uncommon for lawyers to be appointed in misdemeanor cases
      unless the defendants are detained pre-trial. The result is that some new lawyers “cut their
      teeth” on felony cases, the only appointed cases that are available.

      Cobb County presents an exception to this practice, as no lawyers are allowed to take even
      misdemeanor appointments unless they have at least one year of criminal law experience,
      have experience handling a minimum number of criminal trials, and participate in annual
      criminal law CLE. Also, in Chatham County, while there is no annual CLE requirement,
      the panel has several tiered lists that attorneys can join, based on their level of experience.


21.   In the majority of counties we visited, there are no requirements that attorneys
      taking court-appointed cases participate in continuing legal education programs in
      criminal law. While there is an overall low participation rate in general skills training for
      defense lawyers, we found even fewer attorneys participate in training in specialty areas,
      such as working with defendants who have mental illnesses or on the immigration
      consequences of criminal convictions. Training is an expense, and counties do not cover
      the cost of criminal law CLE for indigent defense layers. GIDC offers various low-cost
      training sessions for indigent defense lawyers throughout the state but in less populous
      areas they are not well-attended. The juvenile and capital case training sessions are
      exceptions to this trend, as a number of juvenile court judges encourage or require
      attorneys to attend the training and the Georgia Supreme Court requires attorneys to take
      annual capital case CLE to remain eligible to accept capital case appointments.

22.   Individuals who make use of GIDC’s special divisions praised their effectiveness. We
      heard universal praise for the work of the Multi-County Public Defender among
      prosecutors, judges, and attorneys. Defense attorneys who attended training or received
      assistance from the juvenile and mental health division were complimentary of the
      services received.

23.   Georgia is the only state in the country that does not provide a right to counsel in
      capital post-conviction (habeas corpus) cases. The small Georgia Appellate Practice
      and Education Resource Center handles as many capital habeas cases as possible; the rest
      are handled by pro bono counsel.

24.   Superior courts in several counties visited mandate that all practicing attorneys
      participate on the courts’ assigned counsel panels, regardless of the attorneys’
      interest in or aptitude for criminal defense. As a result, attorneys who are neither
      experienced or interested in criminal defense are required to take appointed cases. While
      counsel may strive to provide adequate representation, this arrangement works a
      disservice to indigent clients. In addition, it is an inefficient use of county resources to
      continuously pay counsel who must take the time to come up to speed in applicable

                                                97
      criminal law when representing their court-appointed clients.

25.   Early representation is uneven and problematic in some areas: sometimes there is no
      involvement of counsel until arraignment, even in counties where indictment can
      take up to one year from arrest. In the counties visited, some attempts have been made
      to provide counsel to pre-trial detainee felony defendants prior to arraignment in superior
      court.

      •      The Middle Circuit (Candler, Emanuel, Jefferson, Toombs and Washington
             counties) and Ogeechee Circuit (Bulloch, Effingham, Jenkins and Screven
             counties) have developed early intervention programs for felony defendants
             whereby a lawyer provides representation from arrest to indictment/accusation for
             defendants being detained in the jail on new felony charges. The goal of the
             programs is to dispose of cases at the earliest possible procedural juncture and to
             ensure that defendants meet promptly with a lawyer. A shortcoming of the
             programs is that there is no continuity of counsel post-arraignment: not only is new
             counsel appointed, but there is no sharing of information between the early
             intervention lawyers and the new attorneys. Also, the attorney performing the
             early intervention job in the Ogeechee Circuit was overburdened: in addition to
             handling the early intervention clients, he was also responsible for all state court
             representation and all juvenile representation in Superior Court in Bulloch County,
             plus he maintains a private practice.

      •      In Clayton County, attorneys are expected to meet with incarcerated defendants
             within 48 hours of appointment. In Cobb and Lowndes counties, panel attorneys
             are provided with a form they are encouraged to complete and return to the
             Indigent Defense Administrators verifying the time when they first met with their
             incarcerated clients.

26.   Delay in early involvement of counsel is attributed to various factors, including:

      •      Some police officers fail to file incident reports in a timely manner.
      •      Some district attorneys and solicitor generals can be late in filing accusations or
             indictments and late in providing counsel with discovery.
      •      Some courts are not prompt in appointing counsel.
      •      Sometimes in-custody defendants are not placed on the court docket in a timely
             fashion.
      •      Some court-appointed counsel are late in contacting clients and no monitoring is
             done to correct this problem.

27.   Some of the more alarming problems in Georgia’s indigent defense system are found
      in the treatment of juveniles accused of delinquent offenses. Many juveniles appearing
      in juvenile court go unrepresented, typically because they are poorly informed of their


                                               98
      right to counsel or because they are discouraged from exercising that right. Juvenile cases
      in many counties we visited do not receive the attention from tripartite committees that
      adult cases do. For example, Richmond and Cobb counties have panel programs to
      represent indigent adults in criminal cases, while contracts are used to represent juvenile
      case clients. The contract attorneys in both counties have very high caseloads: in
      Richmond County, a single part-time public defender handles approximately 1,200
      juvenile cases per year and also has a private practice. In Cobb County, four contract
      lawyers represented clients in 3,500 juvenile cases in the year prior to our visit.

28.   There is inconsistency among counties in the way in which deprivation cases are
      handled. In some counties, indigent parents are provided appointed counsel and children
      are provided with a guardian ad litem. In other counties children are represented by
      appointed counsel. In some counties indigent parents receive no representation at all.

29.   There is a lack of reliable and comprehensive statewide data on indigent defense in
      Georgia. The only source of county-by-county data on indigent defense caseload in
      Georgia is the collection of applications GIDC receives for its Grants to Counties
      program. Some data reported to GIDC by local indigent defense programs is incomplete,
      including only case appointment data for certain case categories. Further, there is no
      uniform definition of “case” used by courts, counties or indigent defense programs in
      Georgia.

30.   There is a perception by some that state Grants to Counties distributed by GIDC are
      used to supplant, not to supplement, county funding for indigent defense. The state
      grant money goes into a county’s general fund rather than a special fund for indigent
      defense, so it is difficult to trace whether the money is used specifically for indigent
      defense or for general county purposes.

31.   In considering improvements to indigent defense in Georgia, it is important to
      recognize that some problems facing the indigent defense systems in predominantly
      rural counties differ from those in predominantly metropolitan counties. For
      example, in general, delay in indictment and in appointment of counsel in indigent cases is
      more of a problem in smaller counties. Rural counties sometimes have a scarcity of
      attorneys who are qualified or willing to handle certain types of cases. There is no one-
      size-fits-all solution to the problems in Georgia indigent defense. However there is a great
      need for state assistance and technical support to help fashion solutions which are tailored
      to the needs of different-sized counties.
32.   While we found many indigent defense practices that concern us, we found a number
      of practices that deserve favorable mention. These practices should be reviewed by
      other counties and by the state to determine whether they form an appropriate basis for
      improving indigent defense, locally or statewide. Most of these practices were developed
      to address problems in the local indigent defense or criminal case processing systems.

      •      A number of features of the Cobb County system stand out: outstanding panel

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             administration; requirements that panel attorneys possess minimum levels of
             experience and attend annual criminal CLE; support from the county, bar and the
             courts for indigent defense; innovative programs such as in-house probation and
             pre-trial services, the indict or release calendar, the contract attorney who handles
             the calendar for detained inmates who cannot afford bond and wish to have it
             reviewed after 30 days pre-trial detention, and the contract attorney who is used
             as an early intervention public defender at first appearance.

      •      Both the DeKalb and Houston county public defender programs were praised for
             providing high quality representation and strong leadership for indigent defense.

      •      Lowndes County’s indigent defendant client evaluation survey is one of the few
             examples we saw of attorney performance monitoring.

      •      The Middle Circuit and Ogeechee Circuit Early Intervention contract defender
             programs are good models for rural areas which have few terms of court.
             (However, the workload of early intervention attorneys should be closely
             monitored.)

      •      The settlement agreement in Stinson v. Fulton County Board of Commissioners
             was identified as having a positive impact on felony representation of indigent
             defendants in Fulton County. Because of Stinson, the Public Defender and
             Conflict Defender carefully track their superior court caseload. Stinson makes it
             clear that if the public defender reaches a certain case level, it can request that
             further appointments not be made to the office, and instead go to the Conflict
             Defender or panel counsel.

      •      The combined effort and interest of key agencies and individuals led to
             improvement of indigent misdemeanor client case processing in Fulton County,
             per order of Foster v. Fulton County.

33.   Few of the counties we visited had Pre-Trial Services Offices helping eligible indigent
      defendants who cannot afford their bonds to get out of jail pre-trial, thus easing pre-
      trial jail population overcrowding. Chatham, Cobb and McDuffie counties had such
      systems. The pre-trial services program in Chatham and Cobb counties operate as quasi-
      probation offices. Under the Cobb County program, eligible defendants can post
      10% of their bail and get their money back at the conclusion of their case, less a 10%
      administrative fee. These so-called “10 percenters” go under supervision of the
      program, similar to probation supervision, which was described as a productive
      feature for defendants who are in school and need encouragement to attend class
      regularly. Pre-trial services can also be used for diversion or alternative placement prior to
      trial.



                                               100
34.       A few judges told us they felt under pressure from counties to contain or reduce
          indigent defense expenditure. A number of judges told us they feel responsible for
          county expenditures and try to be fiscally responsible. But one even mentioned that he
          feared the county funds he received as a supplement to his state salary were in jeopardy if
          he did not contain indigent defense costs.

35.       Jail overcrowding is a problem for jails in Georgia. In many counties we visited,
          pre-trial detainees who could not make bond contributed to the overcrowding problem.
          Further compounding the problem in a number of counties was delay in indictment or
          filing of accusation. Statewide, as of April 4, 2002, 58% of inmates at county jails in
          Georgia were awaiting trial.79 Significant numbers of pre-trial detainees who sit for
          months prior to disposition of their cases add high and unnecessary jail costs to counties,
          particularly when the defendants are held on minor charges. Another problem
          complicating representation of detained indigent defendants is that some counties do not
          have their own jails. Contact between an appointed attorney and a client detained out-of-
          county is difficult when the client must be transported to the county jail where the case is
          being heard.




79
      Georgia Department of Community Affairs County Jail Inmate Population Report, April 4, 2002.



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                                 APPENDIX A

    Georgia Indigent Defense Council Grants to Counties Subsidy Program
Award of State Funds to County for Fiscal Year 2002 (July 1, 2001 - June 30, 2002)




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