21st September, 2010

Georgia’s Indefensible Indigent Defense System – A Defense In Name Only?

Jamie Ryan Weis has been held in county jails in Georgia for over four years. Weis has not been found guilty of any crime. He has not had a trial. Although he is charged with murder and the prosecution is seeking the death penalty, during all but some six months of the time he has been held, he has not had active legal representation because the State of Georgia has failed to provide funding for his defense.

I, along with several distinguished members of the Georgia bar, including former Chief Justice Norman Fletcher, the former chair of the Chief Justice's Commission on Indigent Defense, two former chairs of the Georgia Public Defender Standards Council, and current and former members of the Council, some of whom were state legislators and one of whom is a county attorney, have filed an amicus brief urging the Supreme Court of the United States to grant review of the Weis case and prohibit prosecutors from taking advantage of Georgia's leaving Weis defenseless for so long.

The Supreme Court should recognize that Jamie Weis has been denied his most fundamental right to counsel and that it is impossible for him to receive a fair trial after such a prolonged deprivation of counsel.

Weis was charged with the murder of Catherine King in 2006. When the state decided to seek the death penalty, Georgia's indigent defense program, the Georgia Public Defender Standards Council, engaged two private lawyers with experience in defending capital cases to represent him. They diligently began work on his case.

Six months later, however, they were informed that there were no funds for investigators or expert witnesses. They were soon told there was not even funding to pay them. The case ground to a halt - but not Weis's pre-trial confinement. The one constant since his 2006 arrest has been that he is held in a county jail.

In response to this impasse, the prosecutor -- who is seeking the death penalty for Weis -- orally moved in open court for the trial judge to remove Weis's lawyers and replace them with local public defenders the prosecutor named. One of the public defenders he named was not even certified to handle capital cases. Neither Weis nor his lawyers were given any warning that such a motion would be made. Nevertheless, the trial judge granted it instanter.

Like the attorneys they replaced, the newly assigned public defenders lacked any funding for investigators or experts. What's more, each of them was already overburdened-one was involved in over 400 cases, half of them felonies. They protested their appointment, saying it would be "impossible" for them to competently represent Weis "no matter how good our intentions or diligent our efforts." Weis took the attorneys at their word. He objected to the substitution and promptly sued the judge, in an effort to get back his original attorneys.

Weis eventually obtained reinstatement of his original lawyers, but he no longer had any chance of receiving a speedy, fair trial which he is guaranteed under the Georgia and United States Constitutions. There was still no money for his defense. The investigation that should have commenced promptly after his arrest had not occurred. His mother, who would have been a key witness and a critical source of information about his life, had died.

Beyond that, Weis, who suffers from schizophrenia, depression and severe anxiety, experienced visual and auditory hallucinations, severe depression and anxiety. His medicines were abruptly changed to cheaper brands by jailers attempting to save money. The side effects were devastating. He attempted suicide three times.

Even though there had been no funding for the case for over two years, in June 2009, the trial judge set trial for a date just six weeks later in August. The director of the indigent defense agency appeared in court in June and said the agency could provide less than half of what it had agreed just over a year earlier was necessary to try the case. (In April 2008, the agency agreed that the defense of Weis would cost $255,000. In July 2009, the director made available $115,000.) This left Weis' lawyers with neither the time nor resources to prepare for a capital trial in just six weeks.

Weis challenged this treatment in the trial court and then the Georgia Supreme Court. The Georgia Supreme Court upheld the trial judge by a 4-3 vote. The majority found no harmful error in the prosecutor's moving to replace the defense team with adversaries to his liking. Nor was it moved to act by the lack of notice of the prosecutor's motion to interrupt an ongoing attorney-client relationship and the lack of any opportunity for Weis to be heard before his lawyers were removed. Most courts would have insisted upon such procedural protections before permitting something as drastic as removal of defense counsel.

Most significantly, the majority was not troubled enough by Georgia's failure to meet its constitutional responsibility to fund the representation of Weis to enforce in its decision his constitutional rights to counsel and speedy trial. Although the legislature created a funding source supported by fees and fines specifically for indigent defense, it has routinely diverted some of the fund revenues to other uses. As a result, there were not enough funds for the defense of Weis and other defendants in both capital and non-capital cases.
Instead, the four-justice majority blamed Weis for the predicament he found himself in. It held that Weis should have accepted the public defenders and cooperated with them, even though they insisted they could not capably represent him and lacked funding for experts and investigation just like his original lawyers.

Weis has asked the United States Supreme Court to review that decision, and decide whether poor people accused of crimes have a right to continued representation once their lawyers are thoroughly familiar with their cases and attorney-client relationships of trust and confidence have been established. He also asked the Court to decide whether the State could pursue the death penalty even if it was unwilling to provide legal representation for the person whose life it seeks to extinguish.

The need for review is urgent because the Georgia Supreme Court has already applied its Weis decision in another case which further undermines the right to counsel.

In Phan v. State, trial has been pending for over five years, because-like in Weis's case-the Georgia Public Defender Standards Council failed to fund Phan's defense. The Georgia Supreme Court sent that case back to the trial court with the suggestion that, based on its Weis decision, the judge consider appointing other lawyers to defend Phan. That is, the state's failure to adequately fund defense is to be remedied by simply shopping around for cheaper lawyers. This decision will do serious and unprecedented damage to the integrity of Georgia's criminal justice system if not overturned.

Some state courts are meaningfully addressing deficiencies in representation for poor people accused of crimes. The Missouri Supreme Court has held that caseloads limitations adopted by the state's public defender commission must be enforced. The New York Court of Appeals recently allowed a class action lawsuit regarding inadequate representation to go forward. The Florida Supreme Court has granted review of a case involving excessive caseloads in the Miami Public Defender office.

But Georgia is among a larger number of states failing to meet their constitutional responsibilities. In denying lawyers to Jamie Weis for all but six months of the first four years that his capital case was pending, Georgia failed to meet obligations established by the U. S. Supreme Court as far back as 1932, when the Court found that Alabama denied a fair trial to the "Scottsboro Boys" because they were denied lawyers at "perhaps the most critical period" when they were needed - from "the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important."

Once again, the Supreme Court is called upon to correct a fundamental injustice and reiterate the critical importance of the right to counsel. For the sake of the integrity and credibility of our system of justice, we amici hope that they do.

E. Wycliffe Orr, Sr., attorney and principal in the Gainesville,
Georgia
law firm of Orr, Brown & Johnson LLP. Mr. Orr, a trial lawyer for
38 years and former member of the Georgia House of Representatives, has
served for the last seven years on the Georgia Public Defender Standards
Council, since the inception of that entity created by the Georgia
Indigent Defense Act of 2003.