7th July, 2010

Defendants Squeezed by Georgia’s Tight Budget

When the State of Georgia ran out of money to pay the lawyers for a man facing the death penalty, the prosecutor, of all people, had an idea. He asked the judge to appoint two overworked public defenders instead, identifying them by name.

The judge went along. The Georgia Supreme Court, by a 4-to-3 vote, endorsed the arrangement in March, saying the defendant, Jamie R. Weis, should have accepted the new lawyers to help solve the state’s budget impasse.

The adversary system does not ordinarily let prosecutors pick their opponents. Indeed, most states do not allow established relationships between lawyers and their clients to be interrupted for any but the most exceptional reasons.

Two states, Georgia and Louisiana, take a less sporting attitude, saying poor defendants may be forced to switch lawyers long after the case is under way and must take whomever the state can afford at the time.

The Georgia case is now before the Supreme Court, which will soon decide whether to hear it.

Norman S. Fletcher, who served as chief justice of the Georgia Supreme Court from 2001 to 2005 and as an associate justice for more than a decade before that, said something had gone badly wrong in his state.

“If you’re going to seek capital punishment, you’re going to have to pay for it,” Mr. Fletcher said in an interview the other day. “If we’re going to have harsh laws, at least we should fulfill our constitutional obligations.”

As for the Weis case, he asked, “Why should the district attorney be involved in deciding who will represent people?”

In a brief supporting Mr. Weis, Mr. Fletcher and other leaders of the Georgia bar reminded the United States Supreme Court of what poor defendants in the state have had to put up with: “lawyers referring to their own clients by racial slurs, counsel distancing themselves from their clients by making it clear to the jury they were court-appointed and representing the client only because they had to, and counsel cross-examining a witness whose direct testimony counsel had missed because he was parking his car.”

In 2003, though, Georgia established a public defender system and a capital defender office meant to remedy problems like those. For a little while, Mr. Fletcher said, it seemed that Georgia was prepared to honor the promise of Gideon v. Wainwright, the 1963 Supreme Court decision that guaranteed lawyers to poor people accused of serious crimes.

But the new system almost immediately went off the rails, as the prosecution of Brian G. Nichols for killing a judge and three others in an Atlanta courthouse in 2005 drained much of the new office’s budget.

That was bad news for Mr. Weis, who was charged in 2006 with murdering Catherine King, an elderly woman, during a burglary of her home. He has been held in a county jail since then and has yet to be tried.

In August 2006, prosecutors announced that they would seek the death penalty. By the following March, the state ran out of money to pay Mr. Weis’s lawyers.

In November 2007, Judge Johnnie L. Caldwell Jr. of Fayette County Superior Court granted the prosecutor’s motion to force Mr. Weis to accept local salaried public defenders instead.

The new lawyers did not want the job. Saying they lacked the time and expertise to handle a capital case, they filed three motions to withdraw. There was, they added, no money for experts or investigators.

“No person should face the death penalty unrepresented by adequate counsel simply because of a funding stalemate in Atlanta,” the new lawyers wrote. Judge Caldwell denied one motion and failed to rule on others.

Judge Caldwell suddenly resigned from the bench in April after questions from the state’s Judicial Qualifications Commission. At a hearing last month, according to The Fulton County Daily Report, a lawyer named Susan M. Brown testified that Judge Caldwell had offered to rule for her client in exchange for sex.

In Mr. Weis’s case, the state agreed to reinstate his original lawyers after years of maneuvering. “It did so,” three dissenting justices on the Georgia Supreme Court wrote, “on the eve of trial and at a steep discount, leaving Weis with little time and no real ability to mount a defense.”

Much had happened in the meantime. Prosecutors had steadily built a case while the defense did nothing. Leads went cold, memories faded, witnesses went missing. Mr. Weis’s mother, who had been expected to plead for her son’s life, died.

Mr. Weis, saying his constitutional right to a speedy trial has been violated, is asking that the entire case against him or at least the possibility of the death penalty be dropped, which is strong medicine.

But three members of the Georgia Supreme Court, just short of a majority, were prepared to swallow it. “The bottom line here,” the dissenting justices wrote, “is that the state should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay.”

Last year, in Vermont v. Brillon, the United States Supreme Court left open the question of what should happen when there is “a systemic breakdown in the public defender system.”

Mr. Fletcher said he hoped the United States Supreme Court would use Mr. Weis’s case to address that issue.

“We’re in trouble in Georgia,” he said.