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A Middle Georgia man convicted of molesting an 11-year-old girl has won a new trial because he wasn’t assigned a lawyer at arraignment. In fact, he didn’t get one for more than two years after he asked. In an opinion written by Judge Gary B. Andrews, a Georgia Court of Appeals panel set aside Darren Edward Carswell’s conviction after finding he had been denied a lawyer before arraignment, which Andrews called a “critical stage” of the proceedings. Carswell v. State of Georgia, No. A00A0555 (Ct. App. Ga. May 12, 2000). Andrews, joined by Judges John H. Ruffin Jr. and John Ellington, wrote that Carswell, who lives in Wilkinson County, Ga., should have been provided a court-appointed lawyer within 72 hours of his Dec. 13, 1995, arrest. Instead, Carswell �- who posted bond about a month after his arrest — wasn’t given counsel until January 1998. Carswell was not represented by counsel when he was indicted on Oct. 13, 1997, or when he was arraigned Nov. 14 of that year, according to court records. Rule 30.2 of the Uniform Superior Court Rules provides that judges should appoint lawyers prior to arraignment of defendants who are indigent. On appeal, Carswell argued that he was denied effective assistance of counsel by being without counsel for so long. Typically, to prove ineffective assistance of counsel, a defendant must show not only ineffectiveness but harm to his case. But proving harm wasn’t necessary here, the appellate panel concluded. Andrews cited U.S. v. Cronic, 466 U.S. 648, where the U.S. Supreme Court held that some circumstances are so clearly prejudicial, proving harm is unnecessary. “Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial,” the court held. ARRAIGNMENT ‘CRITICAL’ Andrews wrote that arraignment is a critical stage of the criminal proceedings and Carswell was without counsel at that time. When Carswell appeared — without counsel — for trial Jan. 12, 1998, Twiggs Superior Court Chief Judge William M. Towson Sr. appointed Twiggs Public Defender Laurens C. Lee to represent Carswell and continued the case. In an interview, Towson says he has no memory of the Carswell case. “It has been my practice in 23 1/2 years to ask anyone who shows up at an arraignment if they need a lawyer appointed to represent them. I do not know what happened here in this case,” Towson says. Lee says he thinks the delay may have been caused by Carswell being out on bond for more than two years and the state taking a long time to seek an indictment. CASE IGNORED? James C. Bonner Jr. of the Georgia Indigent Defense Council, who filed an amicus curiae brief supporting Carswell’s appeal, agrees with Lee that the case probably fell through the cracks because the defendant was free on bond. “If he had been in jail bellyaching to the sheriff every day, they would have got him a lawyer,” Bonner says. Dublin Judicial Circuit District Attorney Ralph M. Walke blamed Carswell for failing to fill out paperwork at his initial court appearance. Carswell, Walke argued in his appellate brief, didn’t fill out an application and affidavit for appointed counsel until his case came up for trial. Carswell’s appellate attorney, Elizabeth R. Francisco of Macon, Ga.’s Sinnreich & Francisco, thinks Walke’s blaming her client for not filling out paperwork is unfair. “He asked for an attorney the first chance he had to do so. He is not an attorney. He is not a jailhouse lawyer. He does not have a felony criminal record. He does not know the ropes like a veteran would know them,” Francisco says. The Court of Appeals panel agreed, citing the Georgia Indigent Defense Council’s guidelines which say eligible defendants in custody should receive a lawyer within 72 hours of arrest or detention. “Here, although Carswell did request counsel at the earliest opportunity available to him,” Andrews wrote, “he was not only not appointed counsel at that juncture, but was thereafter indicted and arraigned without counsel.” ‘SOUNDING OF A BELL’ The GIDC’s Bonner says this case “is the sounding of a bell that bureaucratic slowness is not going to be tolerated.” Lee agrees that the ruling is a “wake-up call,” adding, “We are going to have to be a lot more careful than we have in the past down there.” Walke says he intends to file a motion for reconsideration with the court. “Beyond that I am not prepared to comment. I have not had time to study the opinion,” he says. Walke is not the only person unhappy with the decision. Francisco, hired by Carswell’s family to handle his appeal, says she feels the court did not go far enough and is considering filing a motion for reconsideration. “This is horrible. Thank God I got a reversal. But what they should have done is reverse the case period, and not allow him to be tried again,” she says. “There is no other remedy at this point to make up for their failure to get him an attorney when it really would have done any good.” CRIME SITE QUESTIONED At trial, the defense argued that the case should have been tried in Wilkinson County. The town of Danville, where the alleged crimes occurred, is divided between Twiggs and Wilkinson counties. Even though the crimes allegedly took place near the spot where the two counties join, no one with the Georgia Bureau of Investigation ever took the victim to the location to determine exactly where events occurred, Francisco says. Francisco says she’s upset the panel rejected defense arguments that the state failed to prove the crimes occurred in Twiggs County, adding that one of them clearly took place in Wilkinson County. The Court of Appeals rejected this argument, citing O.C.G.A. � 17-2-2 (b) “if a crime is committed on, or immediately adjacent to the boundary line between two counties, the crime shall be considered as having been committed in either county.” “What the court said here is, ‘Venue is like playing horseshoes, close is good enough,’” Bonner says. “This statute was intended to cover cases where you can never know for certain what county a crime took place in. It was never intended to be, ‘Hey, Mr. DA, you can be as sloppy as you want to be.’” Carswell was convicted of kidnapping, terroristic threats, child molestation, criminal attempt to commit rape and assault with a deadly weapon. According to the appellate opinion, he allegedly grabbed the 11-year-old girl while she was walking to her grandmother’s house Dec. 12, 1995, pushed her into a ditch and fondled her. The girl allegedly managed to kick her assailant in the groin and free herself. As she fled, Carswell told her he would kill her and burn her house if she told anyone what had happened, according to the opinion. The next day, Carswell allegedly passed by the girl’s mother’s house, saw the child on the front porch, and threw an iron pipe at her, hitting her in the ankle. He allegedly told her, ” ‘See, I told you I would get you,’” the opinion says. Carswell was arrested that night without a warrant and was questioned about the case, according to the defense brief. He then was taken before Twiggs County Magistrate Robert Hughes Dec. 18, 1995, where records indicate he asked for a court-appointed lawyer. Carswell eventually was convicted last Jan. 21 on all five charges and sentenced to 20 years in prison. Dennis Williams is a free-lance writer based in Macon, Ga.

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