Defense Program May Lose Cobb, Gwinnett


	Print or Email This Page Defense Program May Lose Cobb, Gwinnett February 11, 2008 Daily Report By Greg Land County authorities want to opt out of state's Capital Defender program David Lipscomb, director of the Gwinnett County indigent defense program, denies critics' claim that the opt-out plan is illegal. Wary of stalled cases such as that involving Brian G. Nichols, authorities in Cobb and Gwinnett counties say they would like not to participate in the state's cash-strapped program that provides lawyers for indigent defendants accused of capital crimes. The lawyers who run the indigent defense programs in Cobb and Gwinnett have approached the Georgia Public Defender Standards Council with proposals that would allow them to “opt out” of its Capital Defender program. The moves would allow judges in those circuits to appoint the lead attorney in capital cases at county expense while the council provides or funds the second-chair lawyer and covers related expenses. The proposal would also provide supplemental funding for the second attorney, if he is not a salaried state public defender. Because the plan has not yet been approved by the council, Executive Director Mack Crawford and Deputy Director Sarah Haskins declined to comment. But Capital Defender Director Gerald P. “Jerry” Word applauded the idea, although he cautioned that he was just becoming familiar with it. “In a lot of circuits, especially where they have good death-penalty lawyers like Cobb and Gwinnett, I think it's good to have a local person who knows the judges, knows the jurors,” said Word. Since taking the helm of the Capital Defender office last year, Word said he has sought out experienced local lawyers whenever outside attorneys are appointed to a case. “It makes good sense to me,” said Word, who acknowledged that the plan would also relieve his agency of some financial burdens as well. “We certainly have no objections to that, either,” he said. But while the idea has apparently been embraced by the Cobb bench and district attorney, it faces opposition in Gwinnett, where the county prosecutor and a local high-profile attorney have vowed to fight it. Cobb and Gwinnett are already among the seven opt-out counties whose non-capital indigent defense systems are independent of the council, but must meet certain standards that it sets. They have chosen to accept some funding from the council but retain the systems they had prior to the council's statewide program, initiated at the beginning of 2005. But under the laws creating that system, all indigent defense of death-penalty cases in the state are supposed to be handled by the Capital Defender office, which either provides its own staff attorneys or, in the case of attorneys appointed because of a conflict or for any other reason, pay for those lawyers. The idea to opt out began with discussions between Cobb Circuit Defender Randall D. Harris and court officials there, said Cobb Superior Court Administrator Skip Chesshire, to whom Harris referred questions. “I'm obviously for it because we in Cobb would like to keep our cases moving and keep using our local attorneys,” said Chesshire. Although the move will cost the county more, said Chesshire, county officials are already on board, and a Memorandum of Understanding has been drafted and forwarded to the council. “We've got it in our budget, and hopefully the council will sign off on it immediately,” he said. Chief Judge S. Lark Ingram of the Cobb County Superior Court also backs the idea, she said in an e-mail to the Daily Report. In Gwinnett, the plan's genesis is more recent. “We started talking about it from observing what happens when you have something like the Brian Nichols case, and the budgetary problems that created for the council,” said David S. Lipscomb, director of Gwinnett's public defender program. The trial of Nichols, who faces capital murder charges stemming from a March 11, 2005, escape from the Fulton County Courthouse, has been stalled for nearly a year because money ran out to pay for defense attorneys and investigators, experts and other expenses. It has become the poster child for the tribulations facing the cash-strapped Capital Defender program. But Gwinnett has seen financial problems and fear of future shortfalls short-circuit a death-penalty case. Gwinnett Superior Court Judge William M. “Billy” Ray II has been struggling since late last year with the murder trial of Donald and Karla Sanders, charged with the 2004 robbery-murder of a Snellville woman. Karla Sanders' lawyers were excused from the case in December 2006 after they complained about across-the-board pay cuts to appointed attorneys initiated by the council. Donald Sanders' attorneys challenged the pay cuts and instructions from the council to limit expenses, and last year Ray ordered them off the case, a move being challenged by the former lead attorney, Walter M. “Walt” Britt. “Back in '06, when they were wringing their hands about not getting paid in the Sanders case, Judge Ray asked me if there was anything we could do,” recalled Lipscomb. Realizing that there was money in his budget appropriated to handle appeals and other expenses from death-penalty cases that were tried prior to 2005, when the Capital Defender took over, Lipscomb offered to make that money available to supplement the lawyers' fees. But Britt objected, saying that the law establishing the Capital Defender clearly mandated that the agency fund capital cases and that to allow the county to supplement the costs would be illegal and a violation of the Georgia Constitution's gratuities clause, which bars governments from giving away anything of value. The Buford lawyer is still opposed and says he is not likely to be the only one. “I don't think the county commission will go for it, because it's an illegal gratuity to the state,” said Britt. “Gwinnett County would be putting money in and not getting anything back. “Why would Gwinnett County do that anyway?” he asked. “You've got 150-plus counties that don't have to pay for capital defense, and we're going to? I don't understand it. Why is the Gwinnett Indigent Defense Committee trying to do this?” If Gwinnett does sign on to the plan, said Britt, “I'll sue 'em.” Britt has an unlikely comrade in his opposition: Gwinnett District Attorney Daniel J. “Danny” Porter. “I don't see any possible benefit to the people of Gwinnett County,” said Porter, who learned of the plan from a Daily Report inquiry. While the Sanders case has met some bumps, he said, Gwinnett County is not facing any massively expensive or long-delayed trials like the Nichols case. “I would not support that,” he said. “I would be more in favor of solving the problems at the state level; I don't think it's that difficult.” “If you're going to have a statewide Capital Defender office, you've just got to fund it, and the Legislature hasn't done that,” he said. Porter doesn't agree with Britt that the proposal violates Georgia's gratuity clause, but he does think it is in conflict with the legislation establishing the Capital Defender, and he also sees equal-protection problems. “Defendants in Cobb and Gwinnett will be getting different representation than those in other counties,” said Porter. “They may be creating more problems than they solve.” But his counterpart to the west, Cobb County District Attorney Patrick H. “Pat” Head, welcomed the plan. “I think, for Cobb, it's a good idea,” said Head, who was also previously unaware of the proposal. “We have some of the best death-penalty lawyers in the state,” he said, “probably more experienced than a lot of the Capital Defender lawyers.” Head doesn't see any equal-protection problems “as long as they're getting competent representation,” he said. But, like Porter, Head said that the laws establishing the Capital Defender would likely have to be changed to accommodate the new arrangement. Lipscomb disagrees. Referring to his presentation to the Gwinnett indigent defense committee last week, he noted that the statute governing the Capital Defender provides for a court's ability to appoint counsel if “for any reason the office is unable to defend any indigent person.” He adds that the law allows counties to provide “supplemental compensation” to appointed attorneys. “I think it's already legal,” he said. And as for Britt's threats to sue if the plan goes through? “Walt and I go way back,” he said. “He's threatened to sue us before. He hasn't done it yet.”
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