New legislation proposed for struggling public defender system

"There must be clearly defined roles, responsibilities and accountabilities in order for our indigent defense system to run effectively and efficiently," said Golick, chairman of the House Judiciary Non-Civil Committee. "When governance has been addressed, then we will consider a mechanism to ensure funding adequacy for the future."

A key feature of the bill is that the director of the Georgia Public Defender Standards Council would be able to remove any of the public defenders who head the dozens of circuit offices across the state. A circuit public defender could then appeal his or her removal to the council's board of directors. Currently, only the council's board can vote to remove a circuit defender.

Local, three-member supervisory panels in each judicial circuit would also play a role in selecting their public defenders and, if they are unsatisfied with the defender's performance, recommending their removal, the legislation says. The director of the system would be both appointed and removed by the council's board, subject to the governor's approval.

The legislation, a year in the making, comes at a time when the state agency is scrambling in circuits across the state to find enough lawyers to provide representation to poor people accused of crimes.

The state public defender network began operating in 2005 and replaced an uneven system of programs run by each of Georgia's 159 counties. A Georgia Supreme Court commission found that many overwhelmed county programs failed to protect the rights of poor defendants, leading to unnecessary jail time and the possibility of innocent people being wrongly convicted.

Almost immediately, the new system faced the challenge of defending Fulton County courthouse killer Brian Nichols, who is serving life in prison without parole for murdering a judge, deputy, court reporter and federal agent in 2005. Lawmakers roundly criticized the defender agency for paying $2.3 million of Nichols' defense, sapping its ability to defend of other capital cases. At least two capital defendants, one in Gwinnett County and another in Pike County, have sat in jail more than five years awaiting trial because there has not been enough money to pay for their defense.

Members of the defender council's board have expressed frustration with the Legislature's decision not to give the agency all the funds from a collection system that was set up to fund the state program. Board members say the agency has has been shortchanged more than $35 million in the collections, which are generated from surcharges on criminal fines and bonds, and add-ons to civil court filings. Lawmakers have responded by saying a constitutional amendment is needed to dedicate the collections to the agency.

The state system continues to struggle providing representation for "conflict" cases -- those that involve multi-defendant indictments in which a state-salaried public defender can represent only one person because co-defendants often try to pin the blame on one another. In such cases, which number in the thousands statewide, a state-salaried public defender will represent one client and private attorneys will be paid to represent co-defendants.

Because the state system does not have enough money to pay the private attorneys, it has begun requiring public defenders in some circuits to represent conflict cases in neighboring circuits. H.B. 238 directs the defender council's director to consider such cross-circuit representation.

This practice is causing scheduling conflicts in courtrooms and piling more cases on already overburdened defenders, said Stephen Bright, senior counsel of the Southern Center for Human Rights in Atlanta, which has filed lawsuits against the agency.

"But as bad as it is, the system is better than when it was left up to 159 counties," Bright said. "If Georgia can provide the funding, the training and the independence the system needs, then we can provide poor people with competent representation."

Travis Sakrison, the defender council's new director, said cross-circuit representation is being used "to address crisis areas on a limited bases" around the state. "But my goal is to try and get the funding this program needs," he said. "We're working as hard as we can to come up with solutions in this really difficult economic time."