published Sunday, February 8th, 2009

Georgia: Senate bill worries public defenders

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Don Oliver

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Mike McCarthy

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Preston Smith

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David Dunn

Some local attorneys say a bill in the state Senate could radically change the council that oversees public defenders across Georgia.

But its author, state Sen. Preston Smith, R-Rome, says the bill is the only way to save the Georgia Public Defenders Standards Council from itself.

“I think we have reached a point at the council level where the system has become dysfunctional,” Sen. Smith said. His bill would remake the council into an advisory agency and give the director sole decision-making authority.

One council member says the entire restructuring effort comes down to money.

“Just look at the history,” said Don Oliver, council member and Walker County attorney.

“Were any of those people, Sen. Smith or Sen. (John) Wiles, were they interested or doing anything with indigent defense before this system was set up?” Mr. Oliver said. “If that happened and there was no longer any incentive for them to get their hands on that money I seriously doubt you would ever hear a peep from any of these people about indigent defense.”

Mr. Oliver said the General Assembly has used the council’s fee-based funding system as a backdoor tax on counties by taking millions of dollars for other projects from the Indigent Defense Fund set up in 2004.

The fund collects nearly $45 million a year statewide, but not all of that money comes back to indigent defense.

Gov. Sonny Perdue’s proposed spending plan would cut $4.5 million from the system’s $40.4 million budget this fiscal year and another $5.5 million from the $42.1 million budget for the next fiscal year.

“The state is basically pulling a fraud on the taxpayers and taking that money,” Mr. Oliver said.

Sen. Smith said the General Assembly has a duty to take in the revenue of the state and appropriate funds where they are needed most.

But council members such as Mr. Oliver and Lookout Mountain Judicial Circuit Public Defender David Dunn argue that the council’s duties are constitutionally, mandated unlike other agencies, and should take precedence.

Sen. Smith said the council has failed to present budgets and the system has racked up large bills defending cases such as that of courthouse gunman Brian Nichols, whose defense lawyers logged a legal bill that could reach $2 million.

“They’re just running the ship into the ground,” Sen. Smith said. “We have to make structural changes.”

Those changes would place nearly complete authority with a director appointed by the governor. Lawmakers changed the position on the final day of session last year, a move that critics on the council say led to budget problems and stalemates within the council.

Conasauga Circuit Public Defender Mike McCarthy said funding problems will likely continue whether the council is run by a group or one person.

“The current funding is inadequate and the cuts being prepared will make it harder to do the job,” Mr. McCarthy said.

The Conasauga office has 10 attorneys covering two counties. In 2008 the office opened 3,800 new cases, which does not include cases that rolled over from previous years.

Pending lawsuits by unpaid defense attorneys contracted with the state are a warning sign of things to come, Mr. Dunn and Mr. Oliver said.

Money not paid out by the state is often paid for by the county systems, already stretched thin by declining statewide revenues, Mr. Oliver said.

“What you’re probably going to see in the future is the counties throw up their hands and say, ‘Okay, we’ve hit a wall,’” he said.

Until last year the council basically was appointed by members of the legislature, executive branch and judicial branch to oversee the Georgia public defender system, Mr. Oliver said.

“The new bill, Senate Bill 42, is basically going to get rid of the council and constitute a new council with no input from a board or anybody else,” Mr. Oliver said.

He fears that a strictly advisory council selected by the governor, lieutenant governor and speaker of the House, as the current law dictates, will lack diversity of background and be unable to “hold the political center.”

“When the legislature or governor comes in and says the budget should be reduced to this, they’re just going to roll over and go along,” Mr. Oliver said.

Sen. Smith sees changes to the council structure as the remedy for the ongoing budget troubles.

“I am very proud of the work the circuit public defenders have done,” he said. “I think they have done a very good job despite the council.”

But Mr. Oliver sees an uphill climb to save a system he thinks has been a target for revenue by some lawmakers since its creation.

An added disadvantage is that its main function — defending poor people accused of crimes — doesn’t command much public support, despite its constitutional mandate.

“The first time you get some mass murderer or child killer who turns around and walks because of ineffective counsel because of lack of money, the public is not going to be very happy,” he said.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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