A class-action challenge to the fairness of the state's indigent defense system on behalf of nearly 200 convicted offenders seeking appellate counsel will go to trial next week in Fulton County Superior Court.

The Dec. 15 bench trial before Judge Jerry W. Baxter will pit ardent indigent defense advocates against the cash-strapped Georgia Public Defender Standards Council. It is expected to last about a week.

The council is the state agency created in 2003 to fix disparities in the quality and availability of counsel for indigent criminal defendants from a piecemeal system run by individual counties.

The trial will address the council's ability to appoint appellate attorneys in cases in which convicted defendants claim their lawyers at trial were ineffective. That claim presumably creates a conflict of interest for the trial lawyer, who otherwise would handle the appeal. Those type of conflicts typically require the council to hire outside lawyers to take up those cases.

The trial will also raise questions about whether poor defendants seeking appeals are still waiting too long in custody while unrepresented and whether the process by which attorneys are assigned their appeals is constitutionally deficient.

"Our concern is that there are structural deficiencies in the way appellate representation is being provided such that our class members were not receiving adequate or efficient representation," said Lauren Sudeall Lucas, an attorney with the Southern Center for Human Rights. The nonprofit firm filed the class action along with Bondurant, Mixson & Elmore and four other Atlanta firms two years ago.

Attorneys for the plaintiffs will ask the judge to order specific changes to the system. They include paying outside lawyers on an hourly basis, rather than through low-bid bulk contracts, and requiring those lawyers have a minimum level of experience handling criminal proceedings, said Michael A. Caplan, co-counsel for the plaintiffs and an associate with Bondurant Mixson.

Council Director W. Travis Sakrison and DeBrae C. Kennedy, the lead assistant attorney general on the case, declined to comment on the case. But in a motion for summary judgment filed in August, the defense argued that the plaintiffs' claims are moot.

"All of the criminal cases that comprised the backlog when the complaint was filed have been appointed conflict-free appellate counsel," the defendants' motion stated. "No new backlog exists."

The Fulton case stems from a 2008 state Supreme Court decision in Garland v. State, 283 Ga. 201. The justices unanimously said that indigent defendants are constitutionally entitled to conflict-free counsel for appeals—effectively meaning that any indigent defendant who wants to claim ineffective assistance of counsel would get a new lawyer.

Within eight months after the decision, the council's appellate case load shot up from 75 to 249, according to a report cited in the complaint. Around the same time, funding for the council took a dive as the Legislature cut the council's appropriations, and interest on a fund that contributed to the council plummeted when rates dropped.

More cases and less money yielded a backlog of 187 convicted, indigent criminal defendants seeking new lawyers to file their motions for new trials and appeals.

"Some of these 187 persons have been without counsel for over three years," the plaintiffs' counsel wrote in the 2009 complaint. "Plaintiffs' cases have been transferred to the Appellate Advocacy Division of the GPDSC, which, at its current staffing and funding levels, is utterly incapable of meeting the full weight of the state's constitutional obligation to provide counsel. Since 2008, as a result of gross underfunding, the Appellate Division has been staffed by two full-time and one part-time staff attorneys and has limited funding for the appointment of private counsel."

The class action named the council and its director, chairman, conflict division director and appellate division director, as well as the governor and the state treasurer, as defendants.

In their defense, the state officials have argued that some of the backlog was created by new attorneys awaiting transcripts in cases and by delays in circuits reporting conflict appeals to the council.

In February 2010, Baxter certified the class and granted mandamus. He ordered the council to assign new appeals lawyers to inmates who claimed ineffective assistance of counsel. Baxter also said the council must appoint new lawyers within 30 days of an inmate's request. He also restricted the number of indigent appeals an attorney could handle to 25.

The state tried to appeal Baxter's order during the summer of 2010, but the state Supreme Court unanimously declined to hear it.

To address the order, the council managed to obtain additional money from the state Legislature for conflicts in fiscal years 2010, 2011 and 2012. The GPDSC used the money to hire private attorneys to take some of the appeals cases, paying them $1,200 to $1,500 per case. Plaintiffs' attorneys have contended that the payment amount is too low to guarantee adequate and efficient representation.

"These are complex, difficult and high-stakes cases—over 65 percent of which involve a sentence of over 20 years after a full-scale trial," attorneys with the Southern Center and Bondurant argued in an August proposed pretrial order. "As was the case for contract attorneys hired prior to the court's February 2010 order, the contract attorneys retained by GPDSC following the court's order were not made aware of the complexity or severity of their client's cases before agreeing to take on those representations.

"This court held that these fixed-fee arrangements were deficient as a matter of law because such arrangements make it 'highly unlikely, if not practically impossible for an attorney to provide effective representation to … class members,'" the plaintiffs' attorneys added.

The plaintiffs' lawyers said the judge should void the present contracts, enjoin the use of fixed-fee contracts for representation of the class members and order that the council pay contracted lawyers more or hire more full-time conflict appellate attorneys.

"As a result of underfunding [by the state], we are back to the same system of indigent defense we had before the state passed the Indigent Defense Act in 2003," Caplan said.

The case is Flournoy v. State, No. 2009CV178947.