“This is not a great time to be finding low-cost lawyers,” he said. “This is a crisis statewide.”
The Georgia Public Defender Council’s fee schedule is under review, GPDC spokesman Thomas O’Connor said, and the council expects to release a revised version with higher payments later this year.
The problem has arisen in cases with multiple defendants who cannot afford their own lawyers. In 1963, in the case of Gideon v. Wainwright, the U.S. Supreme Court ruled the state must provide lawyers to indigent defendants because having counsel is a fundamental right and essential to a fair trial.
In multi-defendant cases, the local public defender office will represent one defendant but no other co-defendant due to a conflict of interest. Some circuits have separate offices for conflict lawyers to represent a second defendant.
This leaves it up to the GPDC to appoint private attorneys to represent the rest of the co-defendants. These conflict – or “C-3″ – attorneys must sign contracts agreeing to accept the fees offered by the state office.
The GPDC’s executive director, Omotayo Alli, said in an Aug. 25 letter to Superior Court judges in Atlanta and Augusta that her office has created a “specialized third-tier program” with lawyers to take on unrepresented defendants statewide. She also cited a number of reasons why there has been a significant increase in the number of defendants needing conflict lawyers. Among them:
- Large increases in the number of racketeering and gang-related indictments with dozens of indigent defendants.
- Ongoing disruptions in the labor market that hinder attorney-recruiting efforts.
- Increases in the numbers of cases where indigent clients have been charged but not formally indicted.
- Growing numbers of arrested or detained defendants who have yet to apply for public defender services.
Alli did not cite the low level of pay for lawyers taking conflict cases as a reason for the increased numbers of unrepresented clients.
“The agency continues to refine and adjust its processes to ensure our capacity is commensurate with the demand for services,” Alli wrote. “Our responsibility to our clients is paramount, the guiding star that informs all our efforts.”
The Southern Center for Human Rights, relying on information gleaned from Open Records Act requests, estimates there are at least 620 people charged with crimes in Georgia without lawyers. Many of the defendants have been sitting in jails for months awaiting bond and arraignment hearings because they don’t have lawyers to represent them.
As it now stands, GPDC is failing to meet its most basic obligation: providing effective counsel to people who cannot afford a lawyer, Southern Center lawyer Vanessa Carroll said.
“It is unacceptable that in 2022 ... there are hundreds of people languishing in Georgia jails away from their families, homes and jobs — for months or years at a time — without a lawyer,” Carroll said. “When your liberty is on the line, your access to a lawyer should not be reduced to a game of chance.”
She added, “We are calling on GPDC to take immediate action to recruit and adequately compensate qualified lawyers to end this constitutional crisis.”
Last month, Carroll and colleague Christina Wilson Remlin sent a letter to Alli, urging her to take action. They noted there were dozens named in a massive Richmond County racketeering indictment still waiting to be assigned lawyers more than a year after their arrests in July 2021.
The Southern Center lawyers referred to a number of successful lawsuits that have been filed in past years against the state to ensure people charged with crimes are given adequate legal representation. And they asked Alli to let them know when she was available for a meeting “to discuss a resolution.”
Alli never responded, Carroll said. When asked by The Atlanta Journal-Constitution in an email why Alli wouldn’t meet with the Southern Center lawyers, O’Connor did not give a reply.
GPDC has increased payments to lawyers it hires on a monthly basis, O’Connor said. The Georgia Legislature over the past two years has increased funding for the system’s lawyers, and funding for attorneys is a regular part of the agency’s budget requests, he said.
Hiring lawyers on a contract basis can lead to disincentives for them to do good work, said Marietta attorney Ashleigh Merchant, a former public defender.
“You have a motivation to do more work for your client when you’re paid hourly because you know you’re being compensated for the time you put in,” she said. “But you’re less motivated to put the time in when you’re paid a flat fee. The less you do the more money you get paid an hour.”
There are some child molestation cases that are “incredibly intense and extremely time-consuming,” said Simms, the chief judge from Macon. “There’s nobody in their right mind who’d do that for $1,850.”
With the state defender council unable to provide conflict lawyers, Fulton County is about to take matters into its own hands, Brasher said. The court’s administrative office will soon begin hiring its own conflict lawyers using some of the America Rescue Plan Act funds the county received to recover from the impact of the COVID-19 pandemic.
The county will pay these conflict attorneys on an hourly basis, Brasher said. He noted that to attract private attorneys, the county is paying higher hourly rates than other metro counties that pay their appointed lawyers hourly fees.
“This is a difficult time and we’re trying to make this work,” Brasher said. “Will this completely address the problem? No. But it’s a start.”
Inadequate funding of the state defender system “is now contributing to a public defense crisis of constitutional proportion in Georgia leaving the agency unable to offer reasonable contract rates, and even salaries, to qualified defense attorneys,” said Decatur attorney Jason Sheffield, president of the Georgia Association of Criminal Defense Lawyers.
Sheffield added, “GPDC’s extremely lean funding, coupled with the incredible volume of cases that have stacked up during the coronavirus pandemic, leaves scores of people — who are overwhelmingly minorities and people of color — languishing in Georgia’s jails without lawyers, further exacerbating that court case backlog.”