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Georgia Gov. Roy E. Barnes’ pitch for pro bono work to cure the state’s ailing indigent defense system got a lukewarm reception Wednesday at the state supreme court’s Indigent Defense Commission. Presiding Justice Norman S. Fletcher, visiting the meeting, said the message the governor delivered last weekend at a State Bar of Georgia meeting was inspiring. But retooling civil lawyers to handle criminal cases isn’t easy, Fletcher added. “Most of us today do not have the time to do this. You have an obligation to your family and community to do other things than free legal work,” said Fletcher. Fletcher, who will be sworn in as chief justice next week, said he didn’t know what type of system Georgia should adopt for indigent defense. But he insisted that ensuring defendants’ right to counsel is an obligation of the state. “We are hiding our head in the sand, trying to say, ‘It’s OK, the counties represent the state,’ ” he said. “ There’s enough blame to go around. It’s time to step up to the plate and do what the constitution requires.” The commission is charged with investigating the state’s indigent defense system and recommending reforms. Wednesday, members listened to the presentations of four prosecutors, a defense lawyer and a community activist. “It’s to our advantage as prosecutors to have a skilled, competent defense lawyer on the other side,” said Peter J. Skandalakis, district attorney for the Coweta Judicial Circuit. Richard A. Malone, a former district attorney who now is executive director of the Prosecuting Attorneys Council, said that while prosecutors should not make the decision about how to fund or structure indigent defense, it was clear to him that “indigent defense should be as good as Georgia can make it.” HOWARD: IT’S A RIGHTS ISSUE Fulton County DA Paul L. Howard Jr. said the failings of the indigent defense system are a civil rights issue. Howard urged the commission to add a civil rights activist to its ranks and to get out into Georgia’s courtrooms and “see what goes on.” Howard offered specific suggestions. He said standards should be set for public defenders, including caseloads and time spent on a case in client interviews and investigations, and their work should be documented. He also said judges should not be appointing attorneys because that practice gives the appearance that defense lawyers work for the judge. He added that the desire for future appointments sometimes makes lawyers less zealous than they should be. Barnes’ proposal for mandatory pro bono came up early in the discussion. Judge Stanley F. Birch Jr. of the 11th U.S. Circuit Court of Appeals asked the prosecutors how well a mergers and acquisitions lawyer can handle a criminal case. A good mergers and acquisitions lawyer concerned about his reputation will work hard at a criminal case, Malone said. But, he added, “The problem is you have to spend so much more time getting to the fundamentals.” Even the process of negotiating a plea bargain, he said, requires a knowledge of the local players in the court system. “There’s something to be said for experience, regardless of the knowledge you have.” ‘GLADIATORIAL’ FORCE URGED Cobb County State Court Chief Judge A. Harris Adams said he didn’t like to disagree with the governor, but suggested that other lawyers might not have the skills and experience of Barnes. “A defense bar needs to be a professional mercenary, gladiatorial” force, Adams said. Birch said volunteer efforts might make lawyers feel good about themselves, but real help comes from opening the checkbook. Perhaps the Bar should require lawyers to contribute 10 billable hours a year to support a professional indigent defense bar, he said. “That’s the way I think a private bar can support it. But they can only do so much,” Birch said. “This is a systemic problem.” Presentations by Stephen B. Bright, director of the Southern Center for Human Rights, and John Cole Vodicka, director of the Prison and Jail Project, provided examples of how indigents are treated in Georgia’s courts. Vodicka, whose group is based in Americus and monitors prison and jail conditions and southwest Georgia’s court system, said he had seen a brain-damaged man, charged with disorderly conduct in Americus City Court, refused an attorney unless the case was bound over. The confused defendant, believing he could avoid jail if he pleaded guilty, did so, only to be sentenced to six months in jail. Vodicka said by the time his group intervened and secured a hearing for the man, he had spent four or five months in jail. The case was then dismissed. Most defendants he saw, Vodicka said, were poor and African-American. They seldom saw a lawyer before court. He urged the commission to find a way to monitor and hold accountable the lawyers, judges and prosecutors who allow such injustices to continue. HORROR TALES Bright said he has seen things in courtrooms across Georgia that are “patently illegal.” The problems are “not just in the boonies, but in Fulton County,” he added. During the first four months of this year in one county, Bright said, the defendants in more than half of the felony cases disposed of didn’t have lawyers. One contract defender handled 137 cases, he said, while defendants in 273 cases had no lawyer at all. Only three cases went to trial. Bright offered many examples that demonstrated the urgency of the situation, although he didn’t always name the county, lawyers or judges involved: � Defendants spend five to six months in jail without seeing a lawyer or getting a bond hearing. � In one county, the sheriff appointed lawyers for indigents (a reference to former Putnam County Sheriff Eugene Resseau). � In one area, two indigent defenders together were handling 700 active cases. � In Fulton County, a defense lawyer was parking his car during direct examination of a witness, then went on to conduct the cross-examination. � In College Park, East Point and Hapeville, judges hold preliminary hearings for defendants who have no lawyers. After the police testify, the judge then asks defendants for their explanation. Bright called Georgia’s indigent defense system “meet ‘em and plead ‘em” justice. “It’s not representation,” he said. “It’s processing.” Defendants are “processed like a hamburger at a fast food restaurant. You don’t need a bar card to do that.” For years, Bright said, prosecutors and judges fought funding of indigent defense. “We’ve been on the wrong side of history. Our judiciary has been on the wrong side of history so many times, with slavery and Jim Crow. We really ought to try to get on the right side of history,” he said. He added that the commission must acknowledge that Georgia’s indigent defense system has real problems. Birch said he’d like to hear from some of the judges who presided over the courts Bright described. “They may be doing the best they can under terrible conditions,” Birch said. But, he added, “We’re going to have to be critical. We’re going to have to step on toes” to get anything done.

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