Georgia public defender system on trial

When Georgia instituted a statewide public defender system in 2005, human rights groups praised it as a milestone in ensuring that poor criminal defendants received their constitutional right to a fair trial.

Until then, counties determined how indigent people would be represented. In some counties, the courts operated like assembly lines, with defendants pleading guilty after talking with their appointed lawyers for a few minutes.

But some people accuse the Georgia Public Defender Standards Council, which runs the system, of spending too much time and money on indigent people. One defendant has provoked particular anger: Brian Nichols, the rape suspect accused of escaping from an Atlanta courthouse in 2005 and killing a judge, a court reporter, a sheriff’s deputy and a U.S. customs agent.

Nichols’ defense has cost $1.4 million, and the trial has not begun. Last week, Superior Court Judge Hilton Fuller postponed the trial until Sept. 10 because the public defender system had run out of money.

Almost all of the council’s 75 capital cases are on hold.

The Nichols case did not create the funding crisis. A technical glitch in state law left the council with a shortfall of about $10 million in the state budget.

But the Nichols case, as one of the most expensive death penalty trials in Georgia history, has exacerbated concerns about criminal defense spending.

Defense costs for the case are unpalatable to many Georgians, who point out that the evidence of Nichols’ guilt — which includes eyewitnesses and a videotaped confession — is overwhelming.

“A lot of people who opposed the new system are now saying, ‘I told you so — if you allow these people to have unbridled spending, the system will come to a halt,’ ” said Tom West, an Atlanta criminal defense lawyer.

The Georgia Legislature is debating whether to approve a request for $9.5 million to keep the public defender system operating until July, the start of the next fiscal year.

State Sen. Preston Smith, a Republican and chairman of the chamber’s Judiciary Committee, told council staff they could not spend money “like a drunken sailor on shore leave and then cry to the Legislature.”

Lawmakers have proposed a state House and Senate committee to evaluate the efficiency of the public defender system, and have introduced a flurry of bills that would overhaul funding and oversight.

Some Georgia legislators have suggested imposing limits on what determines an “adequate constitutional defense.” Just as “an adequate car to drive to work in” would not be a Lexus, BMW or Mercedes-Benz, Smith said, an adequate constitutional defense would not be “a high-end O.J. Simpson-style defense.”

It’s possible the system may be scrapped.

Smith said legislators would examine whether Georgia had imposed a statewide solution to a problem that had affected only some counties. He said the result might be that Georgia ended up with a centralized bureaucracy that spent more but offered less in many more counties.

Human rights activists say the Nichols case could not have happened at a worse time.

“The state promised it would do whatever needed to be done to fund indigent defense, but no one anticipated the one thing that would need to be done would be defending Brian Nichols,” said Stephen Bright, senior counsel for the Southern Center for Human Rights, which was instrumental in upgrading indigent representation in Georgia.

In 2003, the Legislature passed the Georgia Indigent Defense Act after a state Supreme Court commission condemned the county-run system as a hodgepodge.

Some counties did not meet the U.S. Supreme Court’s 1963 mandate that poor defendants in criminal cases are entitled to legal representation.

In 2005, the council introduced public defenders in the state’s 49 judicial circuits. The council, which works on about 80 death penalty trials a year, has a budget of about $5 million for capital cases, which are funded through court fees and fines. But an American Bar Assn. report said the capital cases did not receive sufficient funding.

Though many legislators fear the Nichols case could set a precedent for death penalty cases, legal experts say it’s a rarity.

Fuller, who has appointed four lawyers to the defense and approved more funding for a mental health expert, defends the spending as necessary to ensure a fair trial, noting that the state has charged Nichols with 54 felony counts and appointed five lawyers to the prosecution.

Some defense lawyers say legislators don’t complain about prosecution costs. In the Nichols case, experts estimate the prosecution will spend twice as much as the defense.

“No one is telling the district attorney he can only spend a certain amount on a death penalty case,” West said.

Others say the Nichols case wouldn’t cost so much if prosecutors had not sought the death penalty.

Paul Howard, Fulton County’s district attorney, rejected an offer from Nichols’ lawyers for a guilty plea in exchange for a life sentence.

“People who are very concerned about the cost of the defense still believe Nichols should get the death penalty,” Bright said. “They can’t have it both ways.”