Houston County District Attorney

By E. Wycliffe Or Sr.

If Agatha Christie had written the recent history of the Georgia Public Defender Standards Council, which oversees the state of Georgia's indigent criminal defense system, she probably would have titled it "Kidnapping and Murder at the Georgia Capitol."

For what is transpiring under the Gold Dome in Atlanta is nothing short of a homicide of hope—of the dreams and aspirations of supporters of the Georgia and federal constitutions that took decades to achieve but is taking only a couple of years to destroy and dismember, at great cost to the state. And nothing illustrates this murder-in-the-making better than Gov. Sonny Perdue's recently released proposed fiscal year 2010 Georgia budget, aided and abetted by the Legislature's continuing sabotage against the very system it created just six short years ago.

First the kidnapping. When created, under legislation that passed the Georgia General Assembly in 2003, the statewide public defender system was logically and constitutionally placed in the judicial branch of state government. That only made good sense. For it is in the courts that criminal cases are prosecuted, not in executive agencies or legislative committee meetings.

The new system quickly proved itself effective. The horror stories that had been laid bare for all to see in testimony taken by a Georgia Supreme Court Commission early this decade—including woeful tales of those unable to afford a lawyer being held for months before trial on minor charges—or guilty pleas being entered improvidently, with long sentences being imposed at great public expense, often attended by great havoc wreaked on young lives—were being unwritten by a talented and committed group of circuit public defenders and their youthful protégés across the state.

But these successes invited retaliation from those—including some prosecutors, judges and sheriffs, and their legislators—who had a vested political interest in the so-called "efficiency" and predictability of the old system. So how did this cabal carry out its kidnapping? In the 2007 legislative session, the public defender system was hijacked from the judicial branch and dropped off in the executive branch. No real justification or rationale was offered—arrogance rarely deems explanation necessary. But the real reason was obvious—a "kneecapped" public defender system rendered less able to do its job of providing an adequate defense, along with perceived political gain from the always-inviting demagoguery against the courts and public defenders.

Emboldened by the lack of protest from the public or elsewhere, the 2008 Legislature built upon its successful kidnapping, removing the defender system's director from the employ and control of the system's governing council, and making that director instead an employee of the governor, at whose pleasure he serves. This deprived the council of any effective control over its own director, who can—and does—now safely fail to carry out the directives and decisions of a council for whom that director no longer works. Any personnel director will denounce this as insane personnel administration policy.

Then the homicide—or attempted homicide. Not to be outdone by the Legislature, the new home of the system, the executive branch, is doing its part to systematically starve the system. Some home. Perdue's proposed budget unilaterally slashes the system's state budget (not including county support, which accounts for more than half the total budget) for the remainder of this fiscal year by another 5.7 percent (with previous cuts of 6 percent, for a total of 11.7 percent of the original 2009 state budget), and by a whopping almost 14 percent for the next fiscal year.

These cuts, on the heels of other cuts in recent years, will further eviscerate the already-weakened system. And the Legislature's constant subversive attacks upon the system offer no hope of relief from the governor's non-support. A euphemistically named "legislative oversight committee" disguises its murderous intentions by endlessly claiming to investigate the accuracy of the system's case counts and costs of outside conflict counsel. What is needed instead is some oversight over this legislative charade, including what the legislative expense accounts come to for this subterfuge. Better that this money be spent for indigent defense.

Never mind that the rationale for such reductions applicable to other state agencies and departments—reduced tax revenue in this recession—has nothing whatsoever to do with the public defender system, because that system gets zero money in state tax revenue, instead depending primarily on county support, along with increased court filing fees, fines and forfeitures. The recession, rather than justifying these reductions, is merely an excuse exploited by the state to further cripple the public defender system. That exploitation exposes the illusion of the state's claimed support of the public defender system. In truth, the state of Georgia puts not one thin dime of tax money into the system, but instead foists the costs off onto the counties, and on those filing civil suits and upon criminal defendants themselves, the state all the while claiming credit for the system.

Predictably, with these arbitrary and unnecessary, ruinous budget slashes, more furloughs, discharges and hiring freezes are promised, and careers of young, idealistic, public-spirited public defenders are being thwarted. In these recessionary days, when preserving government assets and maximizing effective programs are essential, a state asset of inestimable value is being casually destroyed. The heavy investment made by this state in training numerous young lawyers, many of whom in light of this treatment will now leave for more stable employment, is being cavalierly frittered away. Most importantly, justice in Georgia is suffering, at public expense, both in principle and purse. Everyone—victims, their families, defendants and the taxpaying public—loses through questionable convictions, lengthy and expensive incarcerations and appeals, and costly and delayed retrials. And all for a few pieces of political silver.

The victim of this pre-meditated "murder most foul"—the public defender system—has not yet quite expired. But ominous reports loom of legislative intent to abolish the system's governing council—and with it any direct county systemwide management input into the system—and throw indigent defense and its expense largely back to the individual counties and their local taxpayers, much like the failed system found so woefully lacking by the State Supreme Court Commission just seven years ago. Only a watchful citizenry can stop the finishing off of this victim in the current 2009 legislative session, by complaining to their legislators, judges and county commissioners. To borrow from the well-known admonition attributed to Thomas Jefferson, eternal vigilance is the price of freedom from such nonsensical, wasteful state government.

And the public defender council, along with Georgia's 159 counties, instead of cowering out of fear of the Legislature's killing the system, should scream bloody murder. For the one thing the state cannot do is repeal the federal constitution's Sixth Amendment, guaranteeing the right to effective assistance of counsel in criminal cases regardless of ability to hire a lawyer, a right that we should never forget is subject to federal court enforcement in the last resort. If the state's governor and Legislature abolish the system, or so weaken it as to return us to the horrors under the old system, they shall surely inherit the wind—a wind that will be cold indeed.

By Kelly R. Burke

In response to E. Wycliffe Orr Sr.'s essay on the crimes being committed against the public defender system [Kidnapping, murder at the Capitol, Jan. 21, 2009], let me say: First, thanks to the [Garza v. State] decision, it is now virtually impossible to commit the crime of kidnapping in Georgia. Second, murder would require a jury to find that the killing was not justified. Defense attorneys have been known to argue that it is a perfectly good defense that the victim needed killing.

However, the issue is not about a killing but about a bad economy. As a district attorney, I too wish that more money was dedicated to the cause of justice. While the Georgia Public Defender Standards Council bemoans their lack of money, except of course for defending high-profile cases, victims of crime continue to suffer due to the lack of funding for prosecutors. Two years ago when the Legislature inadvertently left prosecutors unfunded, the Standards Council didn't beat the drums for restoration of prosecutor pay, but now we are supposed to fight for more money to be spent on $175 per hour defense attorneys hired by the Standards Council? District attorneys earn less than $50 per hour, ADAs even less. Don't count on me to shed tears for the Standards Council.

When the Legislature cut agency funding by 6 percent in August, the district attorneys had no programs to cut because our only program is prosecuting killers, muggers and rapists. The district attorney state budget is 98 percent salary and 2 percent travel. Counties pay for our infrastructure, so with the mandated cuts we had to institute furloughs immediately. Despite the furloughs, we still brought justice upon thousands of criminals in the meantime. We privately worked for restoration of pay, but to no avail as the budget numbers continued to worsen. Times are tough all over.

When the Standards Council bemoans their structure, they had the chance to learn from what is essentially a dysfunctional prosecution formula. We urged them to assist us in a restructuring of both prosecution and defense systems, but we were met with silence. The state system funds prosecutors this way: every judicial circuit gets two prosecutors plus one for every judge, two secretaries and one investigator. Counties may supplement that staff. Can you imagine Fulton County DA Paul L. Howard Jr. trying to fight crime with 21 prosecutors? Fulton County adds about a hundred prosecutors to give justice a fighting chance in Atlanta. But in the Alapaha Circuit (find it on a map if you can) and many others, only the state-paid prosecutors are holding back the tsunami of crime. Furloughs can totally cut off prosecution efforts in circuits like Alapaha. Without prosecutors, there is no one to worry about defending.

A strange twist is Houston County, previously held up as a model system of public defense. Houston County opted out of the now-dysfunctional state system and funds the public defender at twice the rate that it funds prosecutors, yet no public defender is being furloughed while my five most senior prosecutors are. The Standards Council isn't all worked up about that.

When told we had to cut 6 percent in August, we did not consider waiting until June and then taking our 13 furlough days at once. That would put virtually every courthouse in the state out of work for about three weeks: Some criminals would go free while others stayed in jail, victims would have been denied justice, and police efforts would have been thwarted. We didn't write letters to the editor. We didn't threaten to sue anyone. But the public defenders constantly threaten to shut down the system, to sue the Legislature in state or federal courts and generally write snarly letters to the media.

The Standards Council acts as though they should be immune from any fiscal control. Instead of criticizing the Legislature for having to make tough decisions, prosecutors will continue to work with them as we know that times are tight. We are willing to do our share, if that means furloughs, so be it. Before prosecutors take 30 days of furlough, we believe the pain of this downturn should be shared fairly across the board, even for those high-priced defense attorneys.

Orr, a Democrat, suggests that the Republican majority is somehow out to get them, yet who championed the cause of a state-wide public defender system? The new Republican majority and the first Republican governor in modern history. Now they are suddenly antidefense? The Standards Council created a system designed to break the bank. It created a system designed to obstruct, instead of trying to work within the system for improvements all around. It challenges established law by sending attorneys to represent people who haven't even asked for an attorney and then calling that a "case" for case counting purposes. Yet Orr suggests that legislative expense accounts should be investigated? Maybe the Legislative crowd is tired of the innuendo and constant opposition, recognizing that they created a monster that needs to be put on a diet.

What is funny to me is that most of the defense lawyers who actually lobby for defense issues at the Capitol are pretty realistic folks. They seem to know when to fold the cards and play the next hand. Instead it is the bystanders with their advice that is stirring the pot of dissent and obstruction. But when one is called names constantly, it is hard to put that aside when making decisions about how to deal with that accuser. I know that from personal experience. Doing the right thing requires that prosecutors put personal differences aside and prosecute a case fairly. I think the Legislature does the same thing. I'd suggest that the Standards Council stop the bellyaching and work with the Legislature to come to a resolution of the issues at hand.