Previous Litigation
This suit is the second in the last decade challenging the inadequate representation provided to poor people accused of crime in this circuit.
In 2003, the National Association for the Advancement of Colored People and numerous men and women facing prosecution in the circuit’s four counties, filed Hampton v. Forrester, No. 2003-V-118 (Crisp Cnty. Super. Ct. 2003), a suit alleging that two part-time contract lawyers who were responsible for representing all poor people accused of crime routinely failed to provide adequate legal representation. Indeed, the contractors had little time to provide more than cursory representation. In addition to his duties as contract defender for hundreds of poor people accused of crime, one of the contract attorneys also served as a city-court judge in several municipalities, represented a local school board, and ran a real-estate-law practice. The other contract attorney also ran a private practice and accepted appointments in capital-murder cases in addition to representing hundreds of poor people in the circuit. Unsurprisingly, these attorneys had little to no time to provide even the most basic elements of legal representation to the hundreds of poor people who relied on them. Their clients regularly languished in jail for months without any contact with one of the contract lawyers. Meetings with clients almost always occurred in the courtroom, and often involved nothing more than conveying the prosecution’s plea offer.
Soon after Hampton was filed, the Georgia Assembly passed the Indigent Defense Act of 2003, a piece of groundbreaking legislation that brought public-defender offices to 85 percent of Georgia’s counties—including those in the Cordele Circuit. The public defenders who staffed the offices would be full-time, thus doing away with the state’s reliance on part-time lawyers. The Indigent Defense Act further required that each circuit public-defender office establish a dedicated juvenile division that specializes in defending children accused of delinquent acts. The Hampton plaintiffs dismissed the suit in August 2004 once the defendants agreed to replace the two contract attorneys with a full-time public-defender office. See Notice of Dismissal, Hampton v. Forrester, No. 03V-118 (Crisp Cnty. Super. Ct. Aug. 12, 2004).
With its sweeping reforms, the Indigent Defense Act should have rectified many of the problems that plagued the delivery of indigent-defense services in the Cordele Circuit. In the absence of adequate funding, however, the promises of the Indigent Defense Act were short-lived.
Funding Shortfalls Undermine Cordele Circuit Public Defender
Until mid-2009, the Cordele Circuit Public Defender Office received both state and county funding for assistant public defenders. Both state and local funds were necessary to keep the office afloat. Without county funding, the circuit’s chief public defender warned that his office “could not adequate[ly] represent juvenile defendants.” Timothy Eidson, Justification Statement for Present County Paid Assistant Public Defender (Mar. 19, 2009). Moreover, “[t]he public defender’s office would not be able to handle indigent defense any better than the contract attorneys were able to do prior to the opening of the state offices in 2005 [and] would be subject to the same constitutional infirmities as were alleged in regard to the old contract system.”
Notwithstanding these warnings, the circuit’s county governments stripped the Public Defender’s Office of all funds to hire assistant public defenders, leaving the office with only three full-time attorneys to handle cases in the circuit’s four superior courts and four juvenile courts in a circuit spanning over 1,300 square miles. By comparison, the District Attorney’s Office has six attorneys, with at least one dedicated to the circuit’s juvenile courts.
Unlike many other public-defender offices in Georgia, the Cordele Circuit Public Defender’s Office does not receive any funds from the counties it serves for attorney positions.
Children Go Unrepresented in Public Defender’s Absence
Because of understaffing and underfunding, the Cordele Circuit Public Defender’s Office simply cannot be in all of its required courts, leaving clients unrepresented at court proceedings. Children often appear in a juvenile court without counsel because all of the public defenders are attending proceedings in one of the superior courts in the circuit. The circuit public defender has too few lawyers and no dedicated juvenile division as mandated by the Indigent Defense Act. Consequently, some children are abandoned by the public defender previously assigned to their cases, or are forced to come back to court later because no one is available to represent them. The public defender assigned to A.P., a 15-year-old girl who was called to appear in the Dooly County Juvenile Court, missed two out of the three hearings. The juvenile court went forward with A.P.’s case and adjudicated her delinquent without a lawyer.
Other children experience delays in their cases when the public defender misses court. Thirteen-year-old A.J. appeared at one hearing and saw a public defender, and thought that a public defender would be at her upcoming trial. After walking almost a mile to get to court, A.J. learned that no public defender was available; the entire public-defender office was in superior court. A.J. returned to court at a later date, where a public defender happened to be present. She was then adjudicated delinquent, and sent to detention for 14 days, missing Christmas in the process.
Other youth, such as 17-year-old plaintiff W.M., are given the choice of either waiving their right to counsel when the public defender is absent, and immediately resolving their case, or coming back to court at an unspecified later date if they want to contact the public defender’s office. When confronted with this choice, many children agree to go forward without a lawyer because of the time and cost of having to come back to court, and because of the uncertainty of whether a lawyer will be available in the future.
Poor Adults Are Denied Adequate Representation
Poor adults facing prosecution in the circuit’s superior courts don’t fare much better. Notwithstanding the U.S. Supreme Court’s decisions in Lafler v. Cooper, 132 S.Ct. 1376 (2012) and Missouri v. Frye, 132 S.Ct. 1399 (2012), extending the right to effective counsel to plea negotiations, the circuit’s public defenders, like the contract attorneys who preceded them, play a nominal role during plea negotiations in superior court. The circuit’s public defenders are unable to spend more than a few minutes per case. Many poor people accused of crimes meet a public defender who knows nothing about them or their charges for the first time in court. After a hurried conversation, many enter guilty pleas and are sentenced. All but a few convictions are obtained through guilty pleas by people who do not receive the most basic elements of legal representation such as substantive attorney-client interviews, investigations, motions practice, and informed, professional advice about whether to plead guilty.
The lawsuit seeks an end to the Cordele Circuit’s “assembly-line” system of representation. The suit further demands sufficient funds and meaningful oversight at both the state and local levels to ensure poor children and adults facing prosecution in the Cordele Circuit have the benefit of an engaged attorney who will advocate for their best interests.
The plaintiffs are represented by attorneys from the Southern Center for Human Rights (SCHR) and Arnold & Porter, LLC. Lawyers from Arnold & Porter represented Clarence Earl Gideon in Gideon v. Wainwright. Lawyers at SCHR have long been involved in efforts to make the right to counsel a reality in Georgia.
The named defendants in the lawsuit are Governor Nathan Deal, the Georgia Public Defender Standards Council, the County Commissioners of the counties Ben Hill, Crisp, Dooly, and Wilcox Counties (the four counties comprising the Cordele Judicial Circuit), Cordele Circuit Juvenile Court Judge, Cordele Circuit superior court judges and district attorneys, and others.
Keywords: civil rights litigation, public defender, indigent defense, juvenile, funding, georgia, caseloads/workloads, Gideon, pretrial representation labor
Atteeyah Hollie is an attorney with the Southern Center for Human Rights in Atlanta, Georgia, and was involved in litigation described in this article.