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Georgia Attorneys Abandoning Indigent Defendants

by David M. Reutter

For almost 50 years, following the Supreme Court’s 1963 decision in Gideon v. Wainwright, criminal defendants have had a constitutional right to legal representation. However, Georgia lawmakers have decided that as a result of the state’s budget shortfall and cuts to public defender services, the right to counsel is discretionary. Consequently, lawyers who are not being paid for their services are abandoning indigent clients.

The Georgia Public Defender Standards Council (GPDSC) is overwhelmed with a backlog of unpaid attorney bills. The main problem involves lawyers who are appointed in “conflict” cases, which typically involve multi-defendant prosecutions in which a public defender can represent only one of the defendants due to conflict-of-interest rules. Private attorneys are then assigned to represent co-defendants.

Lawyers used to gladly accept such cases. “But they haven’t been paid in years,” said GPDSC member David Dunn. “They won’t take the cases anymore. No one wants to take them anymore.” Also exasperating is that judges are letting the attorneys withdraw, allowing defendants to remain without counsel.

In addition to the unpaid attorney fees in regular criminal cases, the bills for death penalty prosecutions are stacking up. There are at least 10 such cases proceeding to trial, with an estimated $1.1 million in defense counsel fees.

The Georgia legislature’s response to the lack of payment for indigent defense representation was an attempt to pass a bill to strip GPDSC’s board of its authority, replacing it with new board members who only serve in advisory roles. The bill died in the House on the last legislative day in session. The legislature did include $1.6 million in GPDSC’s 2010 budget to pay outstanding bills in conflict cases, but the matter of unpaid fees in current cases, including death penalty prosecutions, remains unresolved.

On March 9, 2009, the Georgia Supreme Court affirmed a lower court’s order holding the GPDSC in contempt for re-fusing to pay almost $69,000 to two defense attorneys in a death penalty case. The Supreme Court held that the state, through the GPDSC, was required to pay the cost of indigent defense counsel in death penalty prosecutions. [See: PLN, July 2009, p.46].

In June 2008, the Southern Center for Human Rights (SCHR) filed suit against the GPDSC in Superior Court over the imminent closure of the Metro Atlanta Conflict Defender Office, which would leave up to 1,800 defendants without representation. “Many of the people accused have been in jail since their arrests and now will remain there even longer,” said SCHR president and senior counsel Stephen Bright. “Removal of their counsel is unfair and prejudicial to their cases. It is unconscionable.”

Bright warned that closing the Conflict Defender Office would result in “justice on the cheap,” with defendants remaining in jail until overworked and underpaid (or unpaid) attorneys could be found to represent them. GPDSC director Mack Crawford countered that the public defender office had to “live within [its] means,” but said replacement counsel would be arranged for defendants affected by the closure of the conflict office.

“The lack of conflict counsel in the Northern Circuit reduces the fundamental right to counsel to a crapshoot,” said SCHR director Lisa Kung. “If two people are accused of a crime, one person gets a lawyer and the other doesn’t. This has to change.”

In a September 3, 2009 hearing, SCHR attorney Gerry Weber informed the Superior Court that while the original five plaintiffs in the suit were now represented by counsel, dozens of other indigent defendants still did not have attorneys. “This is a fix, but it’s not completely fixed,” he said.

The SCHR lawsuit is still pending with a class certification hearing scheduled for November 2009. See: Cantwell v. Crawford, Superior Court of Elbert County (GA), Case No. 09-EV-275.

Sources: Atlanta Journal-Constitution, Associated Press,

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Related legal case

Cantwell v. Crawford

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