Brian Nichols and Georgia's indigent defense crisis

Stalled death-penalty cases across the state await infusion of money

Three times last year Atlanta death-penalty lawyer Tom West faced judges with the exact same complaint: The state had stopped paying his fees to represent an indigent client and had failed to provide money for the experts he needed to provide a defense.

In all three cases, West asked for a delay until the state's capital-defense fund gained financial footing. In one, the judge promised to make sure West was paid. In another, the judge ordered the state to pay for his experts but didn't address the issue of West's fees. And in the third, the judge replaced West with two public defenders.

Those cases are now at a legal standstill. "The first thing you do is to file a motion to bring to the attention of the court that there's a problem," West says. "That's almost all you can do. The funds just aren't there."

The state is in a growing crisis over the lack of money to pay for indigent defense in death-penalty cases. The example everyone points to is the much-delayed Brian Nichols case – which has notoriously sucked $1.5 million out of the state's meager $4.5 million fund for capital cases. But there are stalled death-penalty cases all over Georgia.

"The system has collapsed," says Stephen Bright, president of the Southern Center for Human Rights, a nonprofit whose lawsuits challenging the state's previous indigent-defense system forced reforms in 2003. "It collapsed last summer and something has to be done."

The consequences go beyond murder cases that are being delayed. Even tough-on-crime politicians worry that the financial crisis will cause future convictions to be overturned on appeal.

Gov. Sonny Perdue has proposed a $3.6 million infusion this fiscal year for indigent defense, with about $1 million for capital cases. The bill was approved in the House last week. When it reached the Senate, however, Perdue's proposal ran into a roadblock. Sen. Preston Smith, R-Rome, a lawyer and harsh critic of the indigent-defense system, convinced the Appropriations Committee to knock the total emergency appropriation down to $513,125.

The bill will now go to a conference committee. But even if the full appropriation is eventually granted, it won't rescue the death-penalty cases across Georgia that have come to a halt already. That's because Senior Judge Hilton Fuller – who presided over the Nichols case until he resigned in late January – signed a secret court order in 2007 that earmarks all remaining state funding for death-penalty cases to the Nichols defense team.

Mack Crawford, executive director of the Georgia Public Defender Standards Council, which administers the death-penalty funds, let the cat out of the bag about that secret order when he testified in a court hearing in November that no money would be available for other trials until the end of June.

"There is a sealed order that I cannot discuss," Crawford testified, according to a transcript. "If Judge Fuller's order stands, all of the money I have available for the balance of this fiscal year would technically be embargoed or committed to that one case."

Crawford declined to comment to CL, and Fuller's order is so little-known that even Wilson Dubose, a Madison lawyer who chairs the council, expressed surprise when told of Crawford's testimony.

But Bright says Fuller isn't the only judge who has issued an order that demands money from the council. "The council has been ignoring them and you can't do that. They've been saying they can't pay Nichols because of the other cases. Then they say they can't fund other cases because of Nichols. But there's no question they don't have enough money."

The Nichols case has come to dominate the discussion of indigent-defense funding. Jury selection stopped in October when the defense team ran out of money. While most of the criticism has been directed at Fuller and the indigent-defense system, many in the legal community say the blame lies more with Fulton County District Attorney Paul Howard.

They argue that he's taken a slam-dunk case and made it complicated by charging Nichols with 54 counts and planning to call 478 witnesses. So the defense has to prepare accordingly.

"That is a pretty simple murder case," J. Tom Morgan, a former DeKalb County prosecutor, says. "It's not a whodunit. The prosecution doesn't need 400 witnesses. They should be able to try the guilt/innocence phase in a couple of days. But the real problem is the capital-defense system was not adequately funded in the first place."

A January report by the Legislative Oversight Committee that oversees the public-defender system and is chaired by Smith sharply criticized Fuller for his "gross mismanagement" of the Nichols case. At the same time, the report all but acknowledged that the issue of funding the indigent-defense system boils down to politics.

"There is an enormous ideological policy gap between some of the criminal defense advocates who designed the system and many of the current legislators," the report said. "If 'adequate defense' means the best defense money can buy ... taxpayers must be prepared to fund dream team defenses at the expense of other state priorities."

In 2005, the first year of the fund for indigent death-penalty cases, the Legislature budgeted $9 million. By last year, it was down to $4.5 million. When you add the expense of a Nichols case to that pool, it's going to dry up quickly.

"A capital case is one area you just can't scrimp," Bright says. "People's lives are at stake. North Carolina has about the same number of capital cases as Georgia, and it spends $13 million a year. A lot of legislators, like Preston Smith, they're lawyers and they know better. They're taking cheap shots."

Bright and Morgan agree that some of the death cases now on hold because of the crisis could eventually be overturned on appeal, especially in cases where the lawyer was removed for financial reasons. "I think so," Morgan says. "I don't think you can fire the attorney."

Charles Clay, the former Republican lawmaker from Cobb County who sponsored the legislation in 2003 that created Georgia's current indigent-defense system, says Smith and other critics need to back off and provide proper funding. "Real damage can be done in the name of being tough on Brian Nichols," he says. "There's still a constitutional requirement to provide an adequate defense. Sometimes rhetoric and lip service can get in the way of reality and necessity."