Georgia's public defender system may go back under county control

Bert Brantley, a spokesman for Gov. Sonny Perdue, said this week that a number of options are being considered as the 2010 General Assembly draws to a close.

“The economic situation we’re in is something nobody could have predicted, and the increasing cost of the system and the diminished ability of the state to pay for it make it very difficult,” Brantley said. “We had high hopes the new system was the right solution, and maybe it still is. But it's a tough situation.”

Norman Fletcher, a former chief justice of the Georgia Supreme Court, called any plan to return part of the system back to county control "a terrible idea."

"It would be taking us back to essentially where we were in 2003," Fletcher said. "I think it would be a disastrous step and ultimately lead to litigation in state or federal court to make sure this system is the constitutional duty of the state, not the counties."

Stephen Bright, senior counsel of the Southern Center for Human Rights, urged lawmakers to study the issue long and hard before making wholesale changes.

"If you got a job the state can't do because there hasn't been enough money, and you transfer it to the counties, which don't have enough money either, what have you accomplished?" Bright asked. "It doesn't make any sense."

The state defender system, which has been up and running for five years, encountered its toughest challenge with its defense of courthouse killer Brian Nichols, who is now serving life in prison without the possibility of parole for killing a judge, deputy, court reporter and federal agent in 2005. The Georgia Public Defender Standards Council paid $2.3 million of Nichols' defense tab, sapping its ability to fund important programs and drawing sharp criticism from lawmakers.

Equally frustrating to members of the defender council's board has been the Legislature's decision not to give the agency all funds from a collection system that was set up to fund the state program. Since 2005, the agency has been shortchanged more than $20 million in the collections, which are generated from surcharges on criminal fines and bonds, and add-ons to civil court filings.

A number of lawsuits slapped on the agency contend the council often cannot meet its constitutional obligations because of inadequate funding. One suit led to a ruling in February by a Fulton County judge who ordered the council to provide attorneys for indigent inmates, some of whom had been waiting years to get lawyers to file their appeals.

The litigation, filed on behalf of indigent defendants by local law firms and the Southern Center for Human Rights, was promptly criticized by a legislative oversight committee headed by Senate Judiciary Committee Chairman Preston Smith (R-Rome). The report, released a day after the judge's ruling, said the work of the local public defender offices "has been largely overshadowed by ideological crusaders who consistently work to hijack and manipulate the system."

State-salaried public defenders run a well-functioning system, the report said. But their progress has been "severely knee-capped by these crusaders who have all the purist ideological zest of an ivory-tower professor without an understanding of practical realities required to actually manage a system with scarce resources."

Smith, who proposed sending the agency's "conflict" cases back to county control, said last week that lawmakers are trying to find ways to raise enough money so the counties could afford the transfer.

Conflict cases involve multi-defendant indictments in which a state-salaried public defender can only represent one person because co-defendants often try to pin the blame on one another. To stay clear of such conflicts of interest, a public defender often represents one co-defendant with private attorneys appointed to represent the others.

According to defender council projections, there will be more than 9,000 conflict cases during the current fiscal year at a cost of $8.1 million -- almost 20 percent of the agency's $40.9 million budget.

To cut costs, the defender council has signed contracts with private attorneys to take conflict cases and encouraged its circuit defender offices to represent multiple defendants as long as possible. Under this initiative, the average cost per conflict case has steadily declined, easing the financial strain on the agency. But some defendants are challenging these arrangements, contending their legal representation has been compromised.

An advisory opinion by the State Bar of Georgia could halt the practice altogether. The opinion, if ultimately adopted by the Georgia Supreme Court, all but forbids local defender offices from representing more than one defendant charged in a multi-defendant indictment. During a recent legislative hearing, Mack Crawford, the defender council's director, estimated that if the State Bar opinion stands, the agency's conflict cases are projected to double next fiscal year at an additional cost of $7.7 million, for a total of $15.8 million.

House Judiciary Non-Civil Committee Chairman Rich Golick (R-Smyrna) said he will hold hearings before taking any proposal to the floor for a vote. Lawmakers, he said, are seeking a solution that brings "some fiscal predictability and responsibility to the area of conflict cases within our indigent defense system, while simultaneously meeting the Constitutional requirement of providing an adequate defense."

Dawson County Commission Chairman Mike Berg, who also chairs the defender council's board, said any attempt to transfer the conflict cases back to county control is "fraught with peril."

Some of the larger counties can probably handle it, he said. "But it would not go over well with the small- and mid-sized counties to have that saddled on them. They won't be able to afford that new obligation."