‘It’s a mess:’ Chief justice asks lawmakers to fix criminal court rules

The way convicted criminals must bring claims of incompetence against their lawyers is “a mess” created by decades of Georgia Supreme Court rulings, its top judge says in urging state lawmakers to fix the problem.

Chief Justice Nels Peterson said Tuesday that Georgia has made itself an outlier in the procedure for claiming a criminal defense attorney provided ineffective counsel.

Convictions can be, and often are, challenged on the grounds of attorney incompetence. Thousands of such claims are litigated in Georgia courts each year, Peterson said, adding that the federal government and most states have more efficient means of handling them.

He said Georgia’s “broken” system leads to lengthy case delays and wasted resources that can make retrial harder, if not impossible, or unfairly extend a defendant’s imprisonment.

His plea for change came as the state Supreme Court rejected, for purely procedural reasons, a convicted killer’s argument that two of his previous lawyers did a poor job.

“Georgia’s post-conviction litigation system is a mess,” Peterson wrote in an opinion supported by six of the court’s eight other judges. “It’s a mess in large part because of a series of well-meaning but shortsighted decisions this Court made over the course of several decades.”

Peterson said those rulings were meant to ensure that criminal defendants without the money for a lawyer can be represented by one when arguing their previous attorney was ineffective. But he said the court’s guidance has made things worse, not better.

Though the state Supreme Court can issue future decisions in certain circumstances to help, its intervention is somewhat meaningless without state law changes, Peterson said.

“In short, the system is broken,” he wrote. “We did a lot of the breaking. But it will require legislative action to fix it.”

In the case at hand, inmate Joshua Sanders sought a new trial after being convicted of murdering his girlfriend, Latorey Harden, and her mother, Pamela Harden, in Vidalia in 2022.

Sanders was found guilty in Toombs County in 2023 on 15 counts, including malice murder, and was sentenced to life in prison without the possibility of parole. His testimony about shooting the women out of concern for his safety conflicted with eyewitness testimony and video footage, records show.

Sanders argued that his trial lawyer, Lew Tippett, was ineffective in part for letting him testify in his defense about dealing crack cocaine and planning to start an escort service, which made him look bad in front of the jury.

Sanders also alleged that his subsequent lawyer, Rodrequez Burnett, was ineffective for failing to mention Tippett’s incompetence when arguing for a new trial.

That’s a problem for Sanders because the state Supreme Court has consistently held that an ineffective assistance claim against a trial lawyer must be made at the first opportunity when asking for a new trial. Such a claim cannot be recast as one against a subsequent lawyer.

The court’s unanimous opinion in Sanders’ case, authored by Justice Verda Colvin, says his ineffective assistance claim is procedurally barred.

Prosecutors had urged the court to uphold Sanders’ convictions.

Tippett declined to comment. Burnett did not immediately respond Tuesday to an inquiry about the case.

Sanders’ current lawyer, Joshua Smith, said he had hoped for the chance to argue anew for a retrial, adding that Burnett “absolutely failed” Sanders.

Though he lost the appeal, Smith said the state Supreme Court should be celebrated for urging lawmakers to fix the “procedural gamesmanship” at play.

“I think the chief justice, if you read between the lines, I think he felt bad,” Smith told The Atlanta Journal-Constitution.

The court said Sanders can now choose to separately argue that Burnett was ineffective, as part of a petition to be released from prison.

Peterson suggested that’s a better path for all claims of attorney incompetence in criminal cases, noting they have a low success rate. It would significantly unburden public defenders and prosecutors and speed up the criminal appeal process, he said.