16th December, 2009
Fulton County Daily Report
Greg Land

Indigent Inmates Sue Over Backlog; Potential Class Action Says Nearly 200 Indigent Defense Council Clients Lack Appeal Lawyers

Judge Constance C. Russell of Fulton County Superior Court didn't like the answer she received from the Georgia Public Defender Standards Council last spring when she wondered why Darryl White, an indigent man convicted of murder, had not been assigned a lawyer for his appeal.

Russell wrote that “the Court has been advised that Mr. White is number 105 on the Council's backlog list awaiting appointment of counsel. The Council is unable to even estimate when Mr. White is likely to be appointed counsel.”
Failure to provide White with appellate counsel, ruled Russell, “is a direct and continuing violation of his constitutional rights.”

White is one of six convicted killers named as plaintiffs in a potential class action brought Tuesday to force state officials to assign lawyers to 187 clients who have no attorneys to handle their appeals.

The complaint, filed in Fulton County Superior Court, names as defendants Gov. Sonny Perdue and state Treasury Director W. Daniel Ebersole, as well as Council Director Mack Crawford, Council Chairman Michael Berg, Council Conflicts Division Director Jim Stokes and Appeals Division Director Jimmonique R. S. Rodgers.

The case was brought by the Southern Center for Human Rights and a host of private lawyers from Bondurant, Mixson & Elmore; Garland, Samuel & Loeb; Moraitakis, Kushel & Pearson; and Martin Brothers, plus attorney Steven R. Scarborough.

The suit says the council's appeals division has only two full-time and one part-time staff lawyers and relies on 10 private attorneys throughout the state to handle a reported caseload of 476 cases as of Nov. 23, 2009.

The suit quotes Rodgers' memos to the council in which she describes “an impossible caseload” that has “passed the crisis point.”

The suit accuses the defendants of violating the U.S. and Georgia constitutions, as well as the state's Indigent Defense Act of 2003, which created the council.

Council Director Crawford said Tuesday that he had not seen the complaint, but he said his agency was working to address the issues raised in the suit, and that the plaintiffs were likely not aware of the efforts under way.

“There's a lot that we have done that the plaintiffs aren't even aware of,” he said, declining to discuss the matter further.

A spokesman for Perdue said the suit would only cause the state to expend more badly needed resources defending it.

“If these lawyers were truly interested in helping the defendants, they would focus on getting them the services they need instead of chewing up state dollars on a lawsuit,” said spokesman Chris Schrimpf. “Unfortunately, the state will be forced to spend already limited dollars on unnecessary litigation instead of serving these defendants.

Southern Center attorney Lauren Sudeall Lucas said, “The reason we're pursuing it as a class action is because all these people are in the same boat. We want to ensure that they all have a lawyer, and to demonstrate the magnitude of what's going on.”

The appointment of an appeals attorney is vital to safeguard a defendant's right to raise questions of ineffective assistance of counsel or other issues in their initial post-conviction motion, said Lucas. That's why the original trial counsel will usually file a “placeholder” motion then withdraw from the case, upon which an appeals lawyer is supposed to take over, she said.

“Usually,” she added, “the lawyer will file a boilerplate motion for a new trial. The critical thing is that, in Georgia, issues that are not raised in the original motion may not be raised at all. All of these [cases] are on that the same placeholder status.”

The council, which has struggled to meet its budget since it began operations in January 2005, was rocked when the Georgia Supreme Court ruled in February 2008 that a criminal defendant's right to a lawyer without a conflict trumped the budgetary concerns of the cash-strapped council.

The council had said that when clients claim on appeal that their public defender at trial was ineffective, the Standards Council determines whether it's appropriate to name a new lawyer to the case. But the court's decision in Garland v. State, 283 Ga. 201, mandated a new lawyer for any indigent defendant who raises a claim of ineffective assistance of counsel.

Just after the decision was released, Donald F. Oliver, a Walker County attorney, called its result “a tsunami that's closer than we think” because it would rapidly increase the need for appellate attorneys.

During the eight months following the decision, the council's Appeals Division caseload jumped from 75 to 249, according to a Rodgers report quoted in the complaint.

Even so, it says, “the State of Georgia inexplicably slashed the Appellate Division's funding for [fiscal year] 2009 and cut the number of staff attorneys in half.”

The Garland case, said Bondurant Mixson associate Michael A. Caplan, may have spurred more calls for appeals lawyers, but it didn't create any new rights for defendants.

“Garland simply applied a long-held and well-founded rule of law that counsel must not have a conflict of interest,” said Caplan. “What Garland said was, because of the requirement that Georgia's motion for new trial rules, trial counsel cannot, in good faith, advise a defendant as to whether to raise ineffective assistance of counsel.”

The ruling simply reinforced the position he and his fellow lawyers took in filing the suit: that the state must meet its obligations, or the courts must ensure that it does, he said.

“I think that the relief that we're seeking is fairly clear,” he said, “and I would expect the court to issue an order requiring the state to provide counsel to these individuals.”

The suit, filed in Fulton County Superior Court and assigned to Judge Jerry W. Baxter, is Flournoy v. Georgia, No. 2009CV178947.

Staff Reporter Greg Land can be reached at gland@alm.com