Nine of 10 criminal cases in Floyd County require a public defender

by Amanda Petersen

ROME, Ga. – Impoverished neighborhoods face high unemployment, high crime and a dearth of public services, producing an entirely different lived reality than those that wealthy neighborhoods enjoy.

Not surprisingly, a relatively high number from these impoverished neighborhoods find themselves caught up in the justice system, which can only offer them over-worked, underpaid public defenders carrying case loads of between 200 and 300 per year, according to Lee Henley, chief public defender for Floyd County.

“We do the best with what we’ve got, but because of funding, it limits the number of attorneys we can hire,” Henley said.

This case load is a sort of double whammy, taxing the public defenders’ time in court and because of that time, leaving precious little for anything else.

“When you’re in court so much, it’s hard to see clients in jail before their trial,” Henley said. Public defenders generally meet clients at their arraignment hearing for the first time.

Billy Moore, Georgia death row survivor

“The public defender system – it doesn’t work,” said former Georgia death row inmate Billy Moore, a resident of Rome. “They aren’t paid a lot for what they do, and they’re totally out gunned” by the prosecution.

Henley’s team

Henley oversees eight attorneys, two investigators and two administrative assistants. His office’s caseload is staggering, closing nearly 4,000 cases in 2014, he said.

Henley’s team handles everything from robberies and drugs to murder, but in the event of a death penalty case, the defendant is referred to the Georgia Public Defender Standards Council.

Attorneys trained in criminal law and who have handled death penalty cases sit on this council to ensure that those facing capital charges receive adequate representation, Henley said.

Tami Colston, Floyd County Superior Court judge

“You need money to buy the best because there are different degrees of lawyers,” said Tami Colston, Floyd County Superior Court judge. “And you could have a wonderful public defender, it just depends on the individual and if they go to the ‘n^th’ degree.”

The very different quality and kind of legal representation available to the under-resourced can have grave consequences, from initial plea to conviction rates to the kinds of sentences meted out. There are startling correlations between socio-economic class, race and lengths and kinds of sentences nationally, in Georgia and right here in Floyd County.

“Often there’s not much more I can do for a person than what they could do themselves,” Henley said. An eye-popping 97% of criminal convictions end in plea bargains, according to Bureau of Justice Statistics.

Death row survivor Rev. Billy Moore discusses the public defender system in Georgia Producer: Elizabeth Blount

Presumption of guilt

At stake certainly are the fortunes and futures of the under-resourced who find themselves caught up in a system unable to provide adequate attention and representation. But as an aggregate the numbers are an indictment of American ideals.

With 54,000 Georgians incarcerated as of 2013, the criminal justice system should be of concern to every citizen, especially since prison rates in Georgia have nearly tripled in the last 30 years, according to the non-profit Prison Policy Initiative, a research and advocacy group. This high number can be traced to mandatory sentencing laws and a strict approach to handling drug offenses, the group reports.

Todd Carroll, retired criminal attorney

“As soon as we start saying that somebody accused of a crime isn’t going to get correct representation, we’ve taken that first step away from being a free society,” said Todd Carroll, a retired criminal attorney living in Rome. “The public defender’s position is not the highest paying job, so you don’t attract the best attorneys. But even if you do, their enormous caseload makes even the best attorneys ineffective.”

Though it is never popular to call for more spending on lawyers to help people accused of crimes get out of jail, “the truth is that the presumption and adequate defense of innocence is a cornerstone to a free and democratic society,” Carroll said.

Improvements?

While problematic, the public defense system in Georgia does represent progress of a sort.

Norman Fletcher, retired Georgia Supreme Court Chief Justice

“I have to remember that what we have now is so vastly superior to what we have ever had,” said retired Chief Justice of the State Supreme Court, Norman Fletcher. “There are dedicated people in public defenders’ offices who are underpaid but believe they are doing something good. They are making a difference in the state of Georgia.”

Fletcher was instrumental in re-vamping Georgia’s public defender program in 2005 after the previous system for indigent care proved to be so ineffective that it spurred several lawsuits.

Today, the Georgia Public Defenders Standards Council in Atlanta oversees 49 public defender offices serving the state’s 159 counties.

Before 2005, a contract system was used. Every attorney who had been a bar member for less than 15 years was required to represent a certain number of indigent cases per year. Courts and judges were responsible for appointing such cases, and some attorneys contracted with specific courts to do more than the required minimum number of cases.

A problem with this system was the fact that many of the contracted attorneys did not have any experience with criminal law or defense work. Fletcher said he remembers seeing inexperienced real estate attorneys appointed to capital punishment cases.

Is the new system better?

Opinions vary on the state’s latest attempt at providing the indigent with adequate legal representation.

“Public defenders do the best they can, but most times they just give recommendations of plea deals,” said Walter Matthews, a Floyd County superior court judge. “The system before was good, but now it’s a bureaucracy.”

Most agree that a better system would blend approaches. Almost everyone agrees that more funding is needed.

Fletcher has worked for years to build support for additional funding from the state for public defenders’ offices.

Colston said combining the current public defender system with a contract system could directly address the high caseloads. And Carroll advocated more education for the general public on why all this matters

“What this is leading to, in many cases, is a disparity of treatment: disparity of citizens of the county in terms of their paying for representation,” he said. Carroll said the public needs education on why legal representation is vital to the success of everyone and to the vitality and credibility of democracy.

The death penalty

The stakes are high, with some paying even the ultimate price – their lives.

Real results of inadequate indigent representation include incarceration and even the death penalty for many who were innocent.

Sara Totonchi, executive director of the Southern Center for Human Rights

“We stand alone as a democracy in our commitment to executions,” said Sara Totonchi, executive director at the Southern Center for Human Rights. “At the SHRC, we are fighting to end the death penalty because it’s a broken, racist system that disproportionately affects people who are poor.”

Fletcher said he agrees.

“The poor are executed, and the well-to-do generally are not,” he said.

And the poor are disproportionately black. Blacks are incarcerated in the United States at a rate six times that of whites. Though marijuana use rates are the same for blacks and whites, blacks are four times more likely to be arrested for possession.

Wealth and race are inextricably tied, and nowhere more so than in the U.S. justice system.

Fletcher said he changed his mind away from supporting the death penalty after sitting on the Georgia Supreme Court.

When modern forensics techniques are applied to even decades-old cases, it is not uncommon for men on death row to be found innocent, according to Death Penalty Information Center.

In April this year in fact, Anthony Hinton was released from an Alabama prison after serving 30 years on death row. The Associated Press reported that Hinton’s defense lawyer erroneously believed that he had only $1,000 to hire a ballistics expert and hired the only man willing to take the job at that price, even though there were concerns about the expert’s credentials.

Totonchi said she believes she will see the end of the death penalty in Georgia in her lifetime.

“I don’t believe that anyone is so beyond redemption that they should be terminated from humanity based on the worst mistake of their life,” she said, “especially if we are unsure of innocence potentially at the fault of the legal representation and the system that is supposed to protect them.”