State ordered to give attorneys to poor inmates

By Bill Rankin

The Atlanta Journal-Constitution

Calling the right to counsel "unqualified and unconditional," a Fulton judge on Tuesday ordered the state to provide attorneys to indigent inmates, some of whom have been waiting years for representation to file their appeals.

Superior Court Judge Jerry Baxter said these inmates must be supplied counsel within 30 days. The judge also granted class-action status to the lawsuit filed in December. Attorneys litigating the case estimate that as many as 400 inmates could need lawyers to file appeals by the end of the year.

"The court is mindful of the budgetary constraints faced by [the state defendants]," Baxter said. "However, the duty to provide a legal defense to those whose liberty is at stake and who cannot afford an attorney is unqualified and unconditional, and it does not give way in times of economic distress."

Bert Brantley, a spokesman for Gov. Sonny Perdue, said the governor disagreed with the ruling. An appeal is likely, he said.

The governor has been aware of the problem and has been working to address it, Brantley noted. Perdue's executive counsel, Nels Peterson, recently convened an extraordinary meeting with the city's top law firms, recruiting them to provide pro bono lawyers to indigent inmates without appellate counsel. Some firms have agreed to participate.

"We're working very hard at it," Brantley said. "We're trying to do everything we can to remedy the situation."

Gerry Weber, a lawyer for the inmates, said Baxter's order "gives us hope that the state will honor its duty to provide lawyers for criminal appeals."

Mike Caplan, another lawyer in the case, called the ruling "a victory for our criminal justice system and a strong statement that our public officials must meet their constitutional obligation to provide adequate indigent defense."

The lawsuit said some inmates, many convicted of murder, have been waiting more than three years to get a lawyer to file their appeals. The Georgia Public Defender Council has been unable to handle all the appeals because of budget constraints.

Mack Crawford, head of the agency, said Tuesday he did not know how much it would cost to provide counsel to the lawyer-less inmates if Baxter's ruling stands. "We shall see where this goes," he said. At a recent hearing, Crawford testified that 42 inmates were without lawyers and another 26, while assigned defenders, were not actively represented.

The state defender agency has seen its appellate case load rise because of a ruling by the Georgia Supreme Court in February 2008. The court said an inmate needs a new lawyer to file an appeal if the inmate claims his or her lawyer at trial was ineffective. There is an inherent conflict if the trial lawyer pursues such an appeal, the court ruled.

On Tuesday, Baxter said an indigent defendant should not be penalized for exercising the right to have a conflict-free lawyer file an appeal.

"Memories fade and witnesses may move away," the judge said. "An indigent defendant would be placed at a material disadvantage if he were forced to wait months or years before an appellate lawyer could begin investigating grounds for the indigent defendant's motion for new trial or appeal."