Gideon’s Heroes

Honoring Those Who Do Justice To Gideon’s Promise

“The state of Georgia is not providing adequate funding to fulfill the constitutional mandate that all citizens have effective assistance of counsel available when charged with a crime. The state of Georgia lacks a statewide system of accountability and oversight to provide constitutionally adequate assistance of counsel for indigent defendants.”

– Report of the Georgia Chief Justice’s Commission on Indigent Defense

THE PROBLEM: Sixteen-year-old Denise Lockett was a) retarded, and b) pregnant. Her baby died when she delivered it in a toilet in her home in a South Georgia housing project. Although an autopsy found no indication that the baby’s death had been caused by any intentional act, the prosecutor charged Lockett with first-degree murder. Her appointed lawyer, Billy Grantham, had a contract to handle all the county’s criminal cases for a flat fee, about 300 cases in a year, on top of his private practice of paying clients. Grantham conducted no investigation of the facts, introduced no evidence of his client’s mental retardation or of the autopsy findings, and told her to plead guilty to manslaughter. The judge never asked Lockett if she understood her rights or the proceedings, and sentenced her to the maximum 20 years in prison.

Dodge County, Georgia, pays lawyers an average of $49.86 per case to defend poor people accused of crimes. In Richmond County, one part-time lawyer represented 1,200 indigent juvenile clients in a single year (national standards prohibit more than 200 cases for a full-time lawyer). In Atlanta, Tony Humphries was charged with jumping a subway turnstile to evade a $1.75 fare. He sat in jail for 54 days before a lawyer was appointed – far longer than the sentence he would have received if convicted – at a cost to the taxpayers of $2,430.

THE SOLUTION: Robert Benham, Chief Justice of the Georgia Supreme Court, was worried about the high rate of cases where indigent defendants appeared to have received inadequate legal representation, or none at all. He knew that the public was unaware of the problem. He saw that other states had made great progress toward improving indigent defense by setting up a high-level, bipartisan commission to research the problem and frame recommendations for action. The state bar had called for such a process.

In December 2000, Chief Justice Benham and the other Justices of the Supreme Court appointed the Georgia Commission on Indigent Defense. Benham saw five goals of the commission: 1) convincing the public that there was a problem; 2) exposing the weaknesses in the system; 3) attracting the support and buy-in of the state’s leaders; 4) reforming the system; and 5) institutionalizing reform.

A critical step to produce the desired leadership buy-in was the composition of the commission. Benham took some flak for appointing no public defenders, and none of the most vocal advocates for reform. The Commission’s 24 members were instead drawn from the judiciary, elected officials, the business community, and mainstream law firms, plus one district attorney and one legal services director. For Chairman, Benham picked Charles R. Morgan, a top executive with BellSouth Corporation. “Otherwise,” felt Benham, “the commission would not have had the profile it needed.”

Two years and ten public hearings later, the Commission issued its final report, with comprehensive findings and recommendations. Among the findings:

• Not enough money is allocated to indigent defense to fulfill the constitutional mandate of free counsel for indigent defendants (decreed unanimously by the U.S. Supreme Court 40 years ago today in Gideon v. Wainwright), including funding for expert witnesses, investigators and interpreters.
• The Supreme Court’s 2002 ruling expanding the right to counsel in Alabama v. Shelton will “greatly expand the burden on the already inadequate Georgia system.”
• Indigent defenders must be independent from control by politicians and judges.
• Quality public defense can save money, by reducing the “needless continued incarceration of non-violent defendants before trial and the unfair incarceration of those who had ‘served’ their maximum sentence before trial,” by avoiding reversals and retrials, and by helping clients with problems like mental illness get referred for appropriate care.
• The state will keep getting sued unless it implements reforms.

The Commission recommended top-to-bottom changes in the state’s indigent defense system, consistent with all national standards of NLADA and the American Bar Association. No longer should indigent defense be contracted to the lowest bidder. No longer should the counties run 159 different systems of wildly varying quality. No longer should the state pick up only 10 percent of the cost. Key recommendations:

• The state should take responsibility for the system, and should adequately fund it.
• Services should be delivered not by 159 counties, but by similar offices – preferably public defender agencies – in each of the 49 judicial circuits in the state.
• To ensure quality, uniformity and accountability, a statewide oversight board should set standards for running the entire system, and should be responsible for hiring and firing circuit public defenders, and conducting training programs.

The Commission’s report is the most significant single development in the movement toward indigent defense reform in a state that has long been regarded as presenting some of the most intractable indigent defense problems in the nation.

THE HERO: The Commission. All 24 members – but in particular, Chief Justice (now Justice) Benham. As a young lawyer, he served a brief stint as a legal aid lawyer, and then entered private practice. One day, a judge asked him to accept an appointment to a racially charged death penalty case. “The quality of lawyer a person has makes the difference between life and death,” Benham recalls the judge telling him, “and this person needs a good lawyer.” Early in his own career, the judge had a client sentenced to death, and he told Benham that he had always wondered if he could have done more. Benham poured his heart into the case, and got a life sentence.

In his spare time, Benham is a wood-worker – “suckin’ sawdust,” as he puts it. He builds “only toys – nothing useful,” like music boxes, doll cradles and trucks. His grandson helps paint them, and then he gives them away, to his Sunday School class, or to friends.

NO ACTUAL REFORM YET . . . . The Commission’s recommendations have been approved by the state Senate (with an amendment watering down the independence of the statewide oversight body, by giving the Governor appointment power over a majority of its members). But action is stalled in the House, where the Speaker, at the urging of local judges, is pushing a plan to have circuit public defenders selected not by the state oversight commission, but by popular election – a process employed by only two other states. He says his goal is to preserve “local control” over indigent defense. But critics charge that an excess of “local control” is what got Georgia into its indigent defense problems in the first place. They question the high cost of elections (candidates for the elected public defender position in San Francisco raised and spent more than $1 million in last year’s election), and the risk of compromised quality (in one district in Tennessee, police groups and a crime victim’s family recruited a local prosecutor to run against the sitting public defender, who had alienated them with his aggressive cross examinations). Election of public defenders in Georgia would be “a disastrous mistake,” Commission member and Emory University law school provost Howard Hunter told the Atlanta Journal-Constitution.

Denise Lockett is still in prison.

GIDEON'S PROMISE: Still unfulfilled.

Read about the January Gideon's Hero, Natasha Lapiner-Giresi.
Read about the February Gideon's Hero Rodney Ellis