Judge testifies in class-action suit from unrepresented indigent defendants

3rd March, 2010
Atlanta Journal Constitution
Bill Rankin

Elberton – Instead of sitting on the bench Wednesday, where he has presided as judge for 15 years, John Bailey Jr. sat a few feet away -- below on the witness stand.

Bailey, chief judge of the Northern Judicial Circuit, recounted how the court system here almost collapsed two years ago when lawyers began abandoning their indigent clients because they weren’t being paid.

At taxpayer expense, defendants sat in jail for prolonged periods because there was no one to represent them at bond hearings, Bailey testified. Some defendants appeared without counsel at their criminal arraignments. The District Attorney’s Office struggled to bring cases to trial because there was no one to defend the accused, the judge said.

Bailey, who grew up down the street from the towering Elbert County courthouse, was the first witness in a hearing to determine whether a class-action lawsuit on behalf of unrepresented indigent defendants in this five-county rural circuit in northeast Georgia can go forward. The lawsuit also seeks a court order to ensure that indigent defendants will have legal representation.

The suit, filed in April 2009, is one of a number of lawsuits slapped on the struggling state public defender system. The suits contend that funding issues plaguing the agency are disintegrating its ability to provide adequate representation.

Last month, a Fulton County judge ordered the state to provide attorneys to indigent inmates, some of whom have been waiting years for representation to file their appeals. Last week, a legislative oversight committee criticized the litigation, accusing "ideological crusaders" of trying to hijack and manipulate the defender system.

On Wednesday, Superior Court Judge David Roper, a visiting judge from Augusta, peppered lawyers and witnesses with questions that indicated he wants to find a solution to the problems. He did not issue an immediate ruling and plans to hear more testimony.

Roper shook hands with Bailey before swearing him in on the stand. He interrupted Bailey's testimony at one point to ask his fellow judge for his take on the situation. Bailey, with a chuckle, asked Roper how much time he had.

“It would be helpful if the funds were available” to pay for enough lawyers, Bailey said, who has served as chief judge here since 1999. “The whole system would run a whole lot smoother.”

The litigation involves hundreds of “conflict” cases being prosecuted in the Northern circuit. These are multi-defendant cases in which a state-salaried public defender can represent only one person. Private attorneys are hired to represent the co-defendants.

In 2007, the defender council signed contracts with private attorneys to handle conflict cases in the Northern circuit. But when contracts were not renewed the following year because of budget constraints, some lawyers were granted permission to withdraw from their cases, leaving scores of defendants without representation.

A lawyer from the state Attorney General’s Office, Stefan Ritter, argued that the council has fixed the problem and is doing all it can to provide counsel to indigent defendants here. “That is their mission," he said.

All of the six plaintiffs, who filed suit, now have counsel, Ritter said. As for potential problems on the horizon, he said, "We can't speculate what will happen in the future."

Gerry Weber, a Southern Center for Human Rights attorney who represents the indigent defendants, said that while the defender council signed new contracts after the lawsuit was filed, some lawyers have already reached their caseload limits.

Warren Caswell, one of four contract attorneys for the circuit, testified that last July he signed a contract to handle 175 cases through the end of June. Even though he reached that limit before last Thanksgiving, he testified, he is still being asked to take on new cases.