The Georgia Supreme Court on Feb. 25 held that a criminal defendant’s right to a lawyer without a conflict trumped the budgetary concerns of the cash-strapped Georgia Public Defender Standards Council.
The court ruled unanimously that an indigent man convicted of armed robbery in Gilmer County was entitled to get a new lawyer to press his argument that his appointed trial counsel was ineffective.Gerard B. Kleinrock, a lawyer in the DeKalb County Public Defender’s office who filed an amicus brief supporting the defendant, called the decision “huge,” saying it would affect cases all over the state. Indigent defendants are entitled to competent counsel, he said. “I don’t think I should be deciding if my co-worker made a mistake,” said Kleinrock.Jimmonique Rodgers of the standards council, the state agency that oversees indigent defense, said the potential cost of the decision was “astronomical.”"We can’t provide astronomical dollars,” she said. “So we need to sit down and discuss this and make a plan.”The Gilmer County case over conflicts with appointed counsel concerned brothers Mack and Larry Garland, who were tried together in 2005. They received appointed trial counsel — before the new state public defender system had been fully implemented. David I. Clark of Clark & Clark in Ellijay, Ga., was appointed to represent Mack Garland in December 2003, and William W. Bond Jr. of Blue Ridge, Ga., was tapped to represent Larry Garland in June 2004.After they were convicted, each asked for a new lawyer in order to raise the claim that his trial counsel was ineffective. Superior Court Judge Roger E. Bradley said no, based on his understanding that it was standards council policy not to appoint new counsel for appeal, according to the Supreme Court’s written opinion.The Court of Appeals affirmed Bradley’s ruling, but Clark pressed on, obtaining the state Supreme Court’s agreement to look at the case. He was opposed by District Attorney Joe W. Hendricks Jr. at oral argument, and both the standards council and Atlanta’s Metro Conflict Defender office filed amicus briefs backing the prosecutor’s position. But Clark got help from Kleinrock, who submitted a brief on behalf of his office and teamed up with Clark at oral argument.In its brief, the standards council clarified that it doesn’t have a blanket policy not to provide new counsel after trial — saying the court “might assume” the policy is trial counsel will continue unless there’s a viable claim of ineffective assistance or other conflict. Rodgers explained that currently, when clients raise ineffective assistance or another conflict, circuit public defender offices forward their request to lawyers at the standards council, who determine whether it’s appropriate to name a new lawyer to the case. When the council determines a new lawyer is warranted, it takes up that representation with its staff or finds a new lawyer from private practice or a conflict defender office, she said.Kleinrock said he understood that prior to the Feb. 25 ruling he was supposed to tell the standards council only when he found there was a valid ineffective assistance issue.James C. Bonner Jr. of the standards council told the Supreme Court in the amicus brief that it would be fiscally irresponsible for the council to casually assign a new lawyer before first assessing the viability of the defendant’s ineffectiveness claim, noting that in the last legislative cycle the council’s conflicts allocation experienced cuts. And he wrote that a practice of casually assigning new lawyers whenever the defendant claims his lawyer was ineffective would be bad for defendants because it would undermine the quality of assistance at trial.”No one who knows how the criminal law operates and considers it for a minute would want to be defended by a lawyer who is confident that, upon the first whisper — even his own whisper — of ‘ineffective assistance,’” wrote Bonner, “he will have no responsibility for an appeal, who indeed may not know nor need ever learn how to try a case beyond the jury and for the appellate record.”But Presiding Justice Carol W. Hunstein, writing for the unanimous court, rejected those arguments. Trial counsel cannot reasonably be expected to argue his own ineffectiveness on appeal, she wrote, and a defendant represented by counsel has no right to simultaneously raise a pro se claim of ineffective assistance.The court also rejected the prosecution’s argument that trial courts don’t have to appoint new counsel unless there’s some showing of merit to the ineffective assistance claim.”[I]t is readily apparent that no such threshold showing of potential merit is required of defendants represented by retained counsel,” wrote Hunstein. “Imposition of this threshold requirement is based solely on the financial status of the defendant and creates an invidious distinction between rich and poor.”Clark, who said the win came in his first case before the state Supreme Court, said he was very proud. He said that if the court had ruled otherwise his client would have been denied the opportunity to raise his ineffective assistance claim until the habeas corpus stage — when he would have no right to a lawyer at all. “It’s tough for a pro se defendant to effectively examine all of the issues of trial, to look to see whether or not anything stands out,” said Clark.Kleinrock praised Clark for pressing the issue. “I just gotta say ‘good for him,’” said Kleinrock. “That is representing your client to the fullest.”The state Supreme Court recently began a new practice of posting on its Web site a list of cases in which opinions are likely to be issued the following Monday. As a result, said Kleinrock, “I couldn’t sleep all weekend,” adding that the question in the case had long been a pet issue of his. He said he felt strongly about the issue both because of its implications for defendants’ rights and because of what he called inefficiencies in the current system. While Kleinrock acknowledged that the ruling may cost the standards council more, he said the process will be more streamlined and the total cost of indigent defense (of which counties pay some share) will be the same or marginally less.But Rodgers, a lawyer with the appellate division of the standards council, said that not only would the standards council have to take up all cases where indigent defendants want to raise ineffective assistance, the universe of cases where defendants make that request will grow in light of the ruling. And, she added, it still will be the new lawyer’s call whether to claim ineffectiveness of assistance. “The defendant is going to end up claiming IAC on the appellate attorney, too.”According to Rodgers, the standards council considers the appropriate case law — and talks to the client — in evaluating whether to appoint a new lawyer. She said while the standards council agrees with the Supreme Court that a client needs conflict-free counsel, it doesn’t agree that an indigent defendant’s claim of ineffective assistance automatically creates a conflict. “It’s like me saying ‘I have on a blue coat,’ but it’s not blue,” Rodgers said.The Supreme Court’s decision sends the case back to Superior Court so the trial judge can consider Garland’s claim of ineffective assistance after he’s given a new lawyer. Hendricks, the prosecutor charged with defending Bradley’s decision not to give Garland a new lawyer, said that he didn’t think the ruling would ultimately make a difference in the outcome of Garland’s case.The case was Garland v. State, No. S07G0940.