Georgia public defender system still reeling from Nichols case

Associated PressMarch 14, 2010 

ATLANTA — Georgia’s public defender system is still trying to recover its financial footing five years after a courthouse gunman racked up a $3 million taxpayer-funded defense tab on the way to his conviction.

The state’s ailing system to defend the poor has struggled almost since its start in 2005, hamstrung not just by the costly Brian Nichols case but also because of the lukewarm support from legislators and a dismal economy.

The state now can’t afford to pay to defend the accused in several capital punishment cases, leaving them waiting in jail for years before their trials start. Some, such as Khan Dinh Phan, have appealed to the Georgia Supreme Court for help. They have asked that their cases be dismissed because the delays violated their right to a speedy trial.

Georgia has faced similar problems before. State legislators created the public defender system precisely because individual counties struggled to provide adequate legal defense for the poor. But prosecutors and defense attorneys say it may take drastic measures to recover from the Nichols’ case, one of the statewide system’s first high-profile tests.

Prosecutors said Nichols’ defense should have cost about $500,000. But expenses ballooned with expert witnesses and attorney fees. Nichols was spared death and sentenced to life in December 2008 for killing of a judge, a court reporter, a sheriff’s deputy and a federal agent during the rampage.

Phan’s attorneys on Tuesday asked the Georgia justices to demand that legislators devote more funding to the system, a $39.8 million program which is facing a $2.4 million cut this fiscal year. Attorney Chris Adams told the court that the lack of funding has turned him into a “potted plant” and a “lawyer in name only.”

“We can’t make informed decisions about legal strategy without funding,” Adams said of his client, who was charged in the execution-style shooting deaths of 37-year-old Hung Thai and his 2-year-old son in what Gwinnett County authorities say was a dispute about a gambling debt.

Prosecutors, meanwhile, are in a bind. Gwinnett County District Attorney Danny Porter has called the public defender system “fatally flawed,” and even suggested that the court strike it down as unconstitutional. But he said dismissing Phan’s case is not the solution.

“Where is the justice in that?” he said in court documents.

He also said taxpayers should not pay for the public defender council’s “transgressions and the lack of restraint” in deciding that Nichols’ defense outweighed the needs of thousands of other defendants.

The state and Fulton County paid more than $900,000 in expert witness fees and more than $1 million in attorney fees.

The system has faced a flurry of other legal challenges, including a lawsuit filed last year that claimed the state was refusing to provide attorneys for dozens of convicted criminals seeking appeals. A Fulton County judge ordered the state last month to pony up funding and provide attorneys for the 100 or so inmates.

Some frustrated legislators have even advocated a partial dismantling of the system. State Sen. Preston Smith, R-Rome, who chairs a legislative oversight panel, released a report last month that concluded part of the system should be transferred back to county control.

Death penalty cases present a particularly prickly problem. They often take months to go to trial even without a budget crisis, and prosecutors and civil rights groups worry that wait times that stretch for years due to funding problems could lead to costly constitutional challenges.

“You have to have a lawyer — this is not a negotiable thing,” said Richard Dieter of the Death Penalty Information Center. “These are fundamental constitutional issues, but satisfying them has a ticket, a price that some states can’t afford. They’re cutting police, schools and now they’re reluctant to raise funding for death penalty defense.”

Another flashpoint in the debate involves Jamie Ryan Weis, who faces the death penalty on charges that he killed a Pike County woman during a 2006 burglary. The state has struggled to pay for his defense, and he has had no attorneys to defend him for more than two years.

Weis’ appellate attorney, Stephen Bright, likened his client’s situation to an amateur baseball team taking on a professional one.

“You can’t have a death penalty case where one side has all the lawyers, experts and resources, and the other does not,” said Bright. “If you are not willing to pay, don’t pursue it as a capital case.”

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