In December a Georgia Supreme Court commission took the state seriously to task for not meeting its constitutional obligations in providing for indigent criminal defense, and the group’s final report had Emory fingerprints all over it.

Interim Provost Woody Hunter served on the commission that he, in fact, helped get off the ground, with the aid of former first lady Rosalynn Carter. Nearly three years ago Hunter and other members of a State Bar Committee on Indigent Defense determined that the best way to effect change would be through a nonpartisan statewide commission appointed by the Supreme Court. Hunter enlisted the help of Carter, whose interest sprang from the fact that inadequate public defense often affects juveniles and the mentally ill, and then-Chief Justice Robert Benham was open to their plea.

“Some of the unfairness and incompetence of the judicial system that conerns me most has to do with children, mental illness, race and the lack of competent counsel,” Carter said. “They are all interconnected, because these areas include some of the most vulnerable populations among us. They are the ones who most need competent legal assistance and often don’t get it.”

Created in late 2000, the Supreme Court Commission on Indigent Defense comprises some 26 legal professionals, from judges and prosecutors to public defenders, law school deans and corporate general counsels, as well as a few state lawmakers. Though Hunter, former dean of the law school, is the only member currently employed at the University, the commission is rife with Emory connections; five other members are Emory alumni, and commission chair Charles Morgan (general counsel for BellSouth) is on the Law School Council.

“A lot of us who’d been involved with the issue for a long time knew the indigent defense system was a mess,” Hunter said, adding that perhaps 80 percent of individuals in the criminal justice system qualify as indigent.

The commission began by reviewing indigent defense as it is currently practiced in Georgia. State counties—which must come up with almost nine out of every $10 spent on public defense, Hunter said—handle the matter in one of three ways: (1) a public defender’s office that works in much the same way as a district attorney’s office; (2) a panel system of court-appointed, prequalified private defense attorneys; or (3) a contract system that awards public defense contracts to the low bidder.

Larger counties, such as Fulton and DeKalb, use the first system with usually adequate results. Some counties, such as Cobb, have had good results with a panel system. But rural counties often don’t have enough revenue to support public defenders, and Hunter said some have contracted for as little as $14,000 with a private firm—sometimes not even located in the same county—to handle indigent defense for an entire year.

“There’s simply no way to do it effectively for that amount of money,” Hunter said.
The result is what the commission calls a shirking of Georgia’s constitutional duties. When an individual is held for days without an arraignment because his lawyer, who works two counties away, cannot find time to visit the jail, this violates the individual’s right to basic due process, Hunter said. In its report the commission outlined a range of shortcomings in Georgia’s county-based indigent defense system including inadequate funding; unqualified attorneys serving as defenders; lack of a statewide structure to monitor the system; and lack of an effective system to identify mentally ill defendants or to provide counsel for juvenile defendants.

The commission also studied the systems of other states, such as Tennessee, North Carolina and Texas, in coming up with its recommendations. Under the commission’s plan, Georgia’s 49 judicial circuits would set up their own public defenders’ offices (mirroring the county district attorneys’ offices); individual counties could opt out as long as their own system was approved by a statewide board.

Perhaps most importantly, the proposed system would transfer funding responsibility to the state. Though politicians may shiver at the thought of another $50 million added to the state budget, the resulting benefits—less overcrowding in county jails, shorter waits for trial, fewer appeals due to inadequate counsel—could assuage their concerns.

“This would probably save money in the long run,” Hunter said.

State Sen. Chuck Clay (R-Marietta), a member of the commission, has introduced a bill that would bring the commission’s recommendations into reality.

Clay’s bill passed the Senate unanimously, but there may be obstacles in the House where a bill has been introduced to elect public defenders.

“The election of public defenders would be a terrible idea,” said Hunter. “The lawyer’s individual responsibility to a client cannot be made subject to the whims of electoral politics.”