Crisis worsens in Georgia's indigent-defense network

Peter Followill was one of the original lawyers hired by the state when the Metro Conflict Defender Office opened up for business in Atlanta in May 2006. He worked in what's known as the "noncomplex" division, handling low-level felony cases such as drug charges and property theft.

His position was part of a 2003 reform approved by the General Assembly, which led to the state taking over all indigent-defense cases in Georgia after a series of lawsuits had successfully challenged the quality of representation with the old county-by-county system.

It was a demanding job. Followill handled as many as 350 cases annually, and spent almost 90 percent of his time in the courtroom. "I enjoyed it," he says. "Sometimes, you'd get folks you knew were getting a raw deal, or they'd made one mistake and you were helping them out of a jam."

On June 6, Followill and the other 21 lawyers in his office were called into a meeting by Mack Crawford, the director of the state agency that oversees Georgia's indigent-defense system. He told them they would all be fired at the end of the month, that their jobs would be contracted out to save money.

"It came out of left field," Followill says. "We were busy doing our job, and then found out we weren't going to have a job."

The announcement brought instant outrage in the legal community. Doris Downs, the chief judge of Fulton County Superior Court, called it "irresponsible." Fulton County District Attorney Paul Howard called it a "disaster." And the Southern Center For Human Rights, which had filed legal challenges to the previous indigent-defense system, filed suit to stop the firings.

Under pressure, Crawford and the Georgia Public Defender Standards Council eventually agreed to allow some of the lawyers to stay. But all four of the attorneys in Followill's division were let go. His job is now contracted out to a lawyer who will make $50,000 for a full-time job that carries no benefits and includes no support staff, such as a secretary or investigator.

"They'll sign up the bottom-feeders of the legal profession," says Stephen Bright, president of the Southern Center. "The council is taking a giant step backward. This defeats the whole purpose for which the public defender system was created."

Crawford did not return phone calls seeking comment.

A financial crisis has become an annual rite for the state's once-heralded public defender system. As CL reported in March, the system was put in place in 2003 when Democrats controlled the General Assembly and the governor's office. New court fees were put in place to finance the system; instead, the General Assembly has routinely dipped into those funds and used a portion of them for other projects.

Last year, death penalty cases stalled all across Georgia when the system ran out of money and the defense lawyers stopped being paid, a situation that was exacerbated by the high cost of the Brian Nichols defense. The indigent-defense system became a punching bag for Republican leaders, who blamed the crisis on Nichols – as well as what they claim is an extravagant defense system.

"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," said state Sen. Preston Smith, who chairs the committee that oversees the public defender council.

The General Assembly eventually had to allocate more money to the program to keep it going. This year's budget is $42.1 million, a slight increase from last year.

The flash point now is the Atlanta office that handles felony cases. On Aug. 1, Fulton County Superior Court Judge Melvin Westmoreland refused the Southern Center's petition for a restraining order to keep the four staff lawyers in place. He said he wants to wait four months to see whether the new contract lawyers can do a sufficient job. Westmoreland did say he is concerned that "the four attorneys currently under contract may not be capable of providing effective representation given the limitations they will face."

Those limitations will be severe, according to Bright. "Most of the contract lawyers haven't yet realized what a bad deal has been cut with them," he says. "The council has constructed a house of cards that everyone expects to collapse."

The contract lawyers will have to pay for their own health insurance and business expenses; they also won't have taxes deducted from their $50,000 annual salary. Bright estimates that after those costs, each lawyer will take home about $30,000 annually, and that the lack of income will likely force them to spend as little time as possible on each case so they can generate outside income.

"The constitutions of Georgia and the United States require that people be represented in felony cases, not processed through like widgets," Bright wrote in a legal brief. "The state should be enjoined from treating the right to counsel like running a Wal-Mart store."

Meanwhile, defense advocates say the division that handles death penalty defense still hovers on the brink of crisis. "Efforts are being made to do those cases on the cheap," Bright says. "It may result in a different kind of crisis, one in the quality of representation."

The public defender council has hired lawyer Tom West to represent clients in four death penalty cases. Instead of an hourly rate, he's being paid a flat fee of about $350,000 for each one – which is near the national average for defense lawyers in death cases.

Still, it has stretched West thin to the point he may refuse to handle any more cases from the council. "This whole thing has put a pall on doing death penalty cases," he says. "You get the feeling you're not being backed up by those with the ability to pull the purse strings."

West says the old adage that it's better to let 100 guilty men go free than to punish one innocent person is at the heart of what he believes in as a lawyer, and that it's difficult to adhere to that standard under Georgia's system. "I won't be taking on too many more death penalty cases," he says. "I don't like to be put in the position of compromising my ability to defend my clients."