In the Jail House Now

Is Georgia’s indigent defense system broken? The answer may come after next Thursday, when the case of Maurice Flournoy, et al. v. The State of Georgia, et al. goes to trial in the Superior Court of Fulton County. Flournoy is significant because the case has been brought as a class action lawsuit challenging the effectiveness Georgia’s Public Defender system.

The case combines the claims of over 200 defendants who were convicted at trial. Many of you will stop reading at this point, don’t take your thinking hat off just yet. Many of these defendants hit a brick wall when appealing the convictions–you have to get a new lawyer to argue ineffective assistance of counsel. These aren’t white collar criminals. They are indigent from the start. There is no option of going out and retaining a lawyer for the appeals process. It falls to the Public Defenders to handle the appeals process. And because the “ineffective” lawyer argument requires one to use a different lawyer, the appealing defendant gets handed off to another Public Defender.

Therein lies the problem at the heart of this case. The system is understaffed and underfunded. And by no fault of the Public Defender system. A few years ago, the Georgia legislature created the Georgia Public Defender Standards Council, or GPDSC, to function as an agency to oversee the administration of the various Public Defender offices. But the agency has never been adequately funded and in recent years has faced severe budget cuts. The state has statutorily obligated the GPDSC to aid indigent defendants in this position, yet they refuse to provide the necessary funding. It’s like a giant game of hide the ball; it’s easy to win when you have the ball.

If you are going to create a system, then fund it. Press Release below the fold.

Trial Seeks Permanent Fix to Broken System for
Providing Hundreds of Indigent Persons Lawyers

WHAT: Superior Court Judge Jerry W. Baxter will hold a trial in Maurice Flournoy, et al. v. The State of Georgia, et al., a class-action lawsuit that seeks to secure adequate representation for indigent persons in Georgia who have been convicted of offenses carrying a term of incarceration and who are currently without effective legal representation.

WHEN: Thursday, December 15, 2011 at 9:30 am.

WHERE: Fulton County Superior Court, 185 Central Avenue, SW; Justice Center Tower Suite T-4855/Courtroom 4D; Atlanta, Georgia 30303

WHY: Flournoy was filed in December 2009 on behalf of nearly 200 convicted indigent defendants who did not have lawyers to represent them in their appeals. Many of these individuals could not be represented by their trial lawyer on appeal because they wished to raise claims of ineffective assistance of counsel and, under Georgia law, are entitled to a new lawyer to do so. Severe budget cuts in the past three years have rendered the Georgia Public Defender Standards Council (GPDSC) inadequately staffed and funded to meet its constitutional and statutory obligation to provide effective counsel to indigent defendants in this position.

On February 23, 2010, Judge Baxter certified a class of indigent defendants in Georgia who had been convicted of an offense carrying a term of incarceration and who had requested or would request, yet be denied, conflict-free counsel to represent them in their appeals. The Court also required the State to provide effective and conflict-free representation for appeals to all class members within 30 days of their request for new counsel.

Since the filing of the lawsuit, the class size has grown from nearly 200 to more than 800 indigent defendants, but the resources dedicated to their representation have not kept pace. As a result, the State has created an unacceptable risk that the right of hundreds of indigent defendants across the state to effective and conflict-free counsel will be violated.

In December 2011, lawyers from the Southern Center for Human Rights (SCHR) and Bondurant, Mixson and Elmore, LLP will argue that the State must make critical systemic improvements to ensure that the rights of indigent defendants are adequately protected, including the provision of counsel with sufficient time and resources to provide effective representation.

CONTACT: Kathryn Hamoudah, 404/688-1202 office, 404/819-4233 cell, [email protected]

10 comments

  1. n0n_s3quitur says:

    Additionally, the reason for convicted defendants alleging “ineffective counsel” as grounds for appeal is often because the public defender system was unable to afford them experts to testify at their trials. Budgets for expert witnesses are razor thin and must be saved for the most serious of offenses, even if there are legitimate technical issues that testimony from an expert could illuminate for the defense’s benefit in cases with “lesser” offenses.

    It also doesn’t help when the GA Bar is trying to prohibit circuit public defender offices from taking multiple co-defendants from the same case, forcing offices to “conflict out” all co-defendants but one from an office with enough attorneys to represent each co-defendant.

    • Yeah but to be fair – do you want your attorney cutting a deal for a co-defendant that could harm you, or put yourself in the other shoes – preventing you from cutting a deal because it could harm a co-defendant?

      I see one potential solution to this whole problem. Medicare-esque. Set negotiated rates and require firms that do business with the states to take indigent cases at those rates.

      • Ryan says:

        Down side to your proposal is that not all firms that deal with the state practice criminal law. To ask a firm that deals in contacts, torts, etc… to handle criminal cases simply because they do business with the state is just as recklace as the system that was in this state for decades where in poor counties, the indigent were assigned to a local attorney, who might not have dealt with criminal law. That is dangerous.

        • n0n_s3quitur says:

          @Ryan
          Good points. The old appointment system not working is the whole reason (supposedly) the GPDSC was created. To create the new system, then refuse to fund it adequately, then accuse it of not performing up to par leaves me shaking my head.

          Indigent defense is a convenient dog to be kicked, especially when money is tight.

      • n0n_s3quitur says:

        Your scenario assumes that every multiple defendant case involves defendants “rolling” on one another, which is not the reality.

        Furthermore, there is no cross-contamination of co-defendant cases within an office. Each defendant has their own attorney- they are represented by him or her alone, not the office. Confidential information is not shared between attorneys even when they are within the same circuit office. No different than two private attorneys having co-defendants on a single case.

        In cases in which defendants DO wish to “roll” on a co-defendant (mostly drug cases-which is a whole other issue we could solve by not making addiction a criminal issue, but I digress), there is nothing to prohibit one defendant from doing so. It happens all the time, and is perfectly ethical because individual attorneys have an ethical duty to defend their individual client the most effective way possible.

        • Ryan says:

          The way public defender offices work under this system, is that they operate as law firm. One law firm is prohibited from representing opposing parties in a lawsuit under ethical rules, the same goes for codefendants. The lawyers in the office are imputed with the knowledge of their colleagues and thereby creating the conflict between codefendants. Regardless of whether one codefendant wants to flip on the other, anything that could cause one codefendant a harm because of a decision from the other creates the problem. While these problems are not always legal problems, lawyers must uphold ethical rules as well or face strict penalties or possible disbarment.

          • n0n_s3quitur says:

            You’ve identified the crux of the argument-that is, whether or not a Public Defender office is and should be considered a “law firm”; However, I disagree with your analysis.

            PDs within the same office are not automatically, as if by magic, “imputed” with any knowledge about any and all co-defendants in a case apart from publicly available information. Confidential information of each defendant is vested with their respective attorney. This information covered by attorney-client privilege is not made available to anyone else in the office.

            A PD office is not a law firm in that each PD is effectively contracted with the GPDSC to work within a certain circuit to handle indigent cases, and their ultimate responsibility is to handle each case toward the best defense possible for each individual client. Whereas an associate of a law firm has the ultimate responsibility to benefit the law firm.

            Two different animals, and they should operate under different rules.

  2. saltycracker says:

    Schr.org makes good points on criminalization of addiction and bad ones for rehabilitating sex offenders.

    The indigent defense system is a serious budget problem in many counties.
    Maybe Ron D. can update his earlier report:
    http://www.peachpundit.com/2011/06/08/curious-about-indigent-defense-in-georgia/

    Perhaps the problem is more with the legal system – personnel & laws – than funding a “public” employee black hole.

    Is it an increasing legal career system as education ?
    Is there a report with the breakdown of crimes ?
    What is the percentage of indigents represented for drug use or situations better classified as a health issue ?
    Are there non-violent crimes that might be dealt with another way or taken off the books ?

  3. dorian says:

    Indigent defendants get one free lawyer for trial. They then get a second free lawyer to say the first free lawyer was ineffective in a motion for a new trial. Of course, they raise ineffective in EVERY case where a defendant loses. Then there is the appeal, and finally an ongoing series of habeas corpus petitions. Finally, our Court of Appeals courts says that the remedy for ineffective appeals counsel is a new jury trial. That’s a lot of protection afforded to defendants.

    I don’t disagree with the premise of the article in so far as the GPSDC should be able to keep their own money. That is, the surcharge that attaches to probated sentences. Right now this goes into the general fund. It isn’t money that costs taxpayers anything, and it would come close to or could make the system self sustaining. I would think that whatever side of the aisle you’re on, we could all agree that is a good thing.

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