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State, Not County, Required to Pay Attorney Fees in Georgia Death Penalty Cases

On March 9, 2009, the Georgia Supreme Court affirmed a lower court’s order holding the Georgia Public Defender Standards Council (“Council”), in contempt for refusing to pay two defense lawyers in a death penalty case.

The Supreme Court’s unanimous decision involves the Council’s failure to pay $68,946.61 to attorneys Michael Garrett and J. Randolph Frails for defending Willie W. Palmer, who had been retried for capital murder. The Council, a state agency, contended that because Palmer had been indicted prior to enactment of the statute that created the Coun-cil, the cost of his representation should be borne by Burke County, where the trial was held.

In 1997, Palmer was sentenced to death for the murder of his estranged wife and her 15-year-old daughter. His con-viction was overturned in 2005 when it was discovered that prosecutors had failed to disclose a $500 payoff to the state’s key witness. A new trial was ordered. The trial court appointed Garrett, who employed Frails as co-counsel, after the Council’s director informed the court “that all attorney’s fees and expenses would be paid by the Council.”

Palmer was again convicted and sentenced to death. Following the retrial, the Council balked at paying Garrett and Frails’ fees, contending that as Palmer had been indicted prior to the January 1, 2005 effective date of the legislation that created the Council, the county was required to pay the cost of his legal representation.

The trial court disagreed and when the Council still refused to pay, the court entered a contempt order. The Council appealed. The Georgia Supreme Court rejected the Council’s contention that the legislation only contemplated payment of attorney fees in contemporaneous or future death penalty cases.

The Court held that the Council’s argument ignored the fact that once a conviction is overturned, the state and the de-fendant start anew with a clean slate. Whether a new trial even occurs depends upon the state.

If the Council’s position was accepted, whenever a case is retried the court would have to follow the original statutory scheme for the defendant’s legal representation, which “the General Assembly has determined to be deficient and which has [since] been remedied by a new statutory scheme.”

Under current law the state is required to pay the cost of legal representation for indigent defendants in death penalty cases. As such, the trial court’s order holding the Council in contempt was affirmed. See: Georgia Public Defender Stan-dards Council v. The State, 285 Ga. 169 (Ga. 2009).

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Related legal case

Georgia Public Defender Standards Council v. The State