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The Losing Battle Over Indigent Defendant Rights in Georgia

Provided by Garland, Samuel & Loeb

In 1963, the US Supreme Court held in the landmark case Gideon v Wainwright that the Sixth
Amendment of the US Constitution requires state courts to provide attorneys to any criminal defendant
who is unable to afford one. In the past 46 years, however, many states have been unable — sometimes
even unwilling — to meet this important obligation.

Right now Georgia is facing a crisis in the funding of its public defender program. The state has been unable to
pay attorneys representing indigent clients, simply because the funds are not there. Many are quick to point their
fingers at the Georgia Public Defender Standards Council, which is in charge of allocating the money set aside
by the state for appointed lawyers. Some argue the Council has made unwise funding decisions and poured too
much money into too few cases.

Proponents of this view point to the Brian Nichols case. In 2008, Nichols was sentenced to a life sentence
without the possibility of parole for murdering four people and brutally beating a guard at the Fulton County
Courthouse where he was on trial for rape. The capital murder case quickly ate up more than $1.5 million of the
annual $4.5 million dollar budget for indigent defense. It was later revealed that the judge appointed to the case,
Senior Judge Hilton Fuller, signed a secret order in 2007 that earmarked for the Nichols case the remainder of
the state's budget for defending death penalty cases — leaving the fund penniless for other defendants facing
death penalty charges for the remainder of the 2007-2008 fiscal year.

Others point to the overzealous state prosecutor in charge of bringing the case against Nichols for running up
the costs of his defense. The case was supposed to be a "slam-dunk" case, complete with a taped confession to
the murders by Nichols. But the Fulton County District Attorney assigned to the case, Paul Howard, brought
more than 50 charges against the defendant and had 400+ witnesses, all of which dramatically increased the
costs of the appointed defense team representing Nichols.

One thing is certain: the state has not allocated enough money to provide indigent people charged with crimes
the legal representation that they not only deserve, but are entitled to under the US Constitution. As a
fundamental right under the constitution, the right to council must be held above the vagaries of partisan politics
and held to a higher standard than other funding decisions such as deciding to spend more or less on road repair.

To date, the battle for acquiring the necessary funding has not been successful. In 2008, the Governor proposed
an additional $3.6 million for indigent defense. The state senate, however, eventually only approved a little over
$500,000. In fact, the amount of money allocated for indigent defense in Georgia has steadily decreased over
the last four years. In 2005, the state allocated $9 million for the fund. By 2007, this amount had been reduced
to $4.5 million.

And these numbers are expected to decline further as the tough economic conditions force the state to choose
where cuts must be made. Unfortunately, one of the areas where some legislators have been more than willing
to make these concessions is the indigent defense fund. One state senator in particular, Sen. Preston Smith (R-
Rome), has been a vocal advocate against indigent defense and has worked hard to ensure additional state
money is not allocated to this important cause.

The problems facing Georgia are not unique. States throughout the country are having difficulty providing
sufficient funding for public defenders. As a result, public defenders are being forced to take more cases than
they can handle at one time, meaning defendants may wait weeks before meeting with their attorneys, if they
meet with them at all. According to the Southern Center for Human Rights some criminal defendants in Georgia
have waited as long as 6 months before having an attorney assigned to their case. Currently, there are on-going
lawsuits in several states where the lawyers are claiming the state is violating indigent defendants' rights to an

Additionally, public defenders are asking the courts to be removed from cases because they are not being paid
and cannot afford to adequately prepare a defense for their clients for free. Private attorneys who once would
agree to take indigent clients are now refusing to do so because they know the state has no way to pay them.

As legislators fight over money, the constitutional rights of those who cannot afford their own legal
representation are completely forgotten in the struggle.

These rights are not dependent on whether the defendant is wealthy or poor, has the most expensive defense
attorney in town or a state appointed public defender. Georgia has a constitutional obligation, moreover a moral
obligation, to ensure that every single criminal defendant who is unable to afford an attorney will have one
provided to them.

ABOUT THE AUTHOR: Garland, Samuel & Loeb, P.C.

The lawyers of Garland, Samuel & Loeb are among the most accomplished, experienced criminal defense
attorneys in the Southeastern United States. The firm's founder, Reuben Garland, famously defended the man
accused of bombing The Temple in 1958. Don Samuel and Ed Garland successfully represented Ray Lewis,
linebacker for the Baltimore Ravens, who was indicted for a double homicide on Superbowl Sunday in Atlanta.
The firm also represented Jim Williams, the protagonist in the non-fiction book, Midnight in the Garden of
Good and Evil, who was acquitted of murder in his fourth trial.

The firm has always displayed a commitment to vigorously defending all accused of serious crimes. The firm's
founder, Reuben Garland traveled the back roads of Georgia, defending poor white and African-American
clients, often saving the latter from "mob justice." To this day, the lawyers of Garland, Samuel & Loeb strongly
adhere to their commitment to vigorously defending the accused.

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