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Indigent defense 'stiffed by state,' local attorneys say

POSTED: May 7, 2009 10:34 p.m.

A tightening of funding for lawyers appointed to represent some poor people in court has resulted in public defender offices in Georgia representing clients with the potential for conflicts of interest.

So-called "conflict cases" typically involve criminal cases in which there are two or more co-defendants charged with related offenses. In some, one defendant may seek to incriminate a co-defendant in the crime, requiring that they be represented by different lawyers looking out for their clients’ separate interests.

Conflicts can also arise when a defendant in one case is a witness or victim in another case.

The Hall County Public Defender’s Office, funded by local and state tax dollars, represents the bulk of indigent defendants who are entitled to a lawyer under the constitution. But in the past, when conflict cases arose, private attorneys were assigned to represent those defendants on a case-by-case basis. Paying lawyers to handle such cases is the state’s responsibility.

Now, since the legislature has tightened the budget for indigent defense, some attorneys who took on conflict cases in Hall County are not being paid, or are having their hourly rate payments reduced, according to Brad Morris, Circuit Public Defender for the Northeastern Judicial Circuit, which includes Hall and Dawson counties.

The result is that few attorneys want to take indigent cases if there is no guarantee they’ll be paid, said Wyc Orr, a Gainesville lawyer and member of the Georgia Public Defender Standards Council.

"Many of them are, frankly, just being stiffed by the state," Orr said. "Some lawyers have basically served notice that they don’t want any more of these cases, because they can’t work for free."

Several private attorneys known to handle conflict cases in Hall County did not return phone messages seeking comment Thursday.

In Hall County, fewer conflict cases are being farmed out to outside attorneys as a result of the funding shortfall, Morris said.

In fiscal year 2007, 400 conflict cases were assigned to lawyers outside the public defender’s office; last year, there were 201. This fiscal year, the office has assigned just 25 conflict cases to private attorneys.

Instead, the office is assigning different public defenders to handle the cases of co-defendants, keeping their cases separate but under the same roof using a so-called "Chinese wall" method, Morris said. The attorneys use different investigators and do not discuss their clients’ cases with the lawyers representing their clients’ co-defendants.

"There is concern about the propriety of this conduct," Morris said, noting he’s waiting for the State Bar of Georgia to weigh in on whether "Chinese walls" in conflict cases is ethical.

In a worst-case scenario, keeping conflict cases in the public defender’s office could result in reversals of convictions on appeal, Orr acknowledged.

Orr said the problem stems from a lack of commitment by the legislature to fully fund indigent defense. Last year, lawmakers removed the director of the statewide system from the council’s oversight and made him report to the governor.

Morris notes that while all state agencies have been mandated to cut their budgets in the current economic climate, indigent defense was meant to be funded by money collected from court filing fees and other surcharges.

"That fund hasn’t been negatively impacted by the economy," Morris said.

Orr said between $40 million and $50 million was collected last year for the fund, but some $5 million to $10 million never made it into the indigent defense budget because it was not constitutionally dedicated for that purpose.

Any fund not dedicated to a sole purpose in the state constitution is subject to the legislative budgeting process.

"If they’re not going to use (the fees) for what they’re created for, they ought to roll them back, because it just becomes a hidden tax for the public," Orr said.

Hall County is not facing as dire a problem as some other areas of the state. In the judicial circuit that includes Elbert, Franklin, Hart and Madison counties, "there are hundreds of unrepresented people charged with crimes whose interests conflict with the clients of the circuit public defender, and the number grows daily," according to a lawsuit filed last month in Elbert County Superior Court by the Southern Center for Human Rights.

"We have a stadium’s worth of folks in North Georgia with no attorneys to defend them," said Gerry Weber, a senior attorney for the center. "Many of these people sit in jail, presumed innocent, penniless and lawyerless."



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