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A Georgia State Bar committee’s decision to stick by a controversial proposal to reform indigent defense moves the politically charged issue before the Bar’s Board of Governors. Last week, the Bar’s Advisory Committee on Legislation rejected prosecutors and judges’ arguments that it should revoke a May vote endorsing 12 principles for reform, including an indigent defense system completely funded by the state. The intense debate at the committee meeting drew participation from the Georgia Supreme Court’s chief justice, the Court of Appeals’ chief justice and some of Georgia’s most eloquent attorneys. Criminal defense lawyers and indigent defense activists made impassioned appeals to the consciences of Bar members — two even threatened to turn in their Bar cards should the State Bar fail to take up their cause. Others, including three judges, argued that the activists should temper their expectations with political reality. Friday’s 9-5 vote means that the proposal probably will come before the State Bar of Georgia’s Board of Governors later this year, placing that body in the sticky position of voting on a plan opposed by the state’s superior court judges and the governor. Judges object to the plan because it would remove their authority to appoint attorneys for indigent defendants. Gov. Roy E. Barnes opposes a state-controlled system and instead advocates mandatory pro bono work by most attorneys. Friday’s three-hour-plus committee meeting indicates the debate in the Board of Governors is likely to be intense. Supporters of the Bar committee’s plan argued that drastic change — specifically, a system controlled and funded entirely by the state — is needed immediately. Their arguments left little room for compromise, and they spoke of choosing principle over political expediency. Should Georgia legislators decide constitutional guarantees of counsel are not important, so be it, said Emmet J. Bondurant. “But within the Bar,” he added, “we ought not to compromise with what is right … in order to appease a political reality.” Opponents countered that political reality dictates a slower approach. And they’d like to remove the Bar from the debate for now, shifting the issue to a blue-ribbon commission created last year by the state supreme court. Georgia Court of Appeals Judge Marion T. Pope Jr. said he agreed “with all the great principles,” but added that the plan has considerable opposition, particularly from judges, and stands no chance of success politically. “Wait to fight another day or you’ll fail,” he warned. BAR, COURT, GOVERNOR ON THE CASE Indigent defense has become a hot-button issue around the state. A Georgia Supreme Court-appointed commission is holding monthly hearings, and Barnes may have pre-empted support for a statewide system when he said in a June 7 interview that the problem should be addressed with volunteer work by lawyers. The State Bar last year called for the creation of the Chief Justice’s Commission of Indigent Defense — the blue-ribbon commission currently headed by Charles R. Morgan, BellSouth general counsel. At the same time, however, the Bar’s own indigent defense committee developed separate proposals for reform, presented to the ACL for consideration in May. Among the proposals: � All indigent defense costs to be paid by the state; � A single, statewide body that supervises, operates and administers a unified state public defender system; � Abolishment of the contract system, under which counties put out bids for indigent defense work; � Defenders independent from local governing and judicial authorities; and � Parity of resources between prosecutors and defenders. The ACL endorsed the principles in the 12-point proposal, but not the commentary that accompanied each point. That commentary aroused the ire of the state’s judicial leadership, with its assertion that judges are often more interested in cost efficiency and docket control than in providing competent lawyers for indigents. In a June 8, 2001, letter, Superior Court Judge Lawton E. Stephens, of the Western Judicial Circuit, summed up judges’ concerns about the Bar committee proposal. He said judges have sworn duties that include appointing counsel and providing adequate compensation for appointed defenders. The Bar proposal, Stephens wrote, “removes the judge from the process to the detriment of the indigent defendant and counsel.” Stephens argued that the needs of indigents could be met if every Bar member would devote part of his practice to that representation. He also said that more state funding to local communities would improve indigent defense, but removing the judiciary from the process would not. C. Wilson DuBose, who heads the Bar’s indigent defense committee, has apologized for the strident language in the commentary, which he said was not meant to offend or target individuals or the judiciary. He did so again at last week’s meeting. SEEKING A BETTER SCENARIO But DuBose urged committee members not to retract their endorsement of the principles, arguing that it would signal the Bar’s lack of commitment to the issue. DuBose, a partner at Winkler, DuBose & Davis, said he was not a criminal defense lawyer, a “rabblerouser or a liberal do-gooder.” But, he added, what he had learned about Georgia’s indigent defense system had opened his eyes “to a scenario that I cannot be proud of as a lawyer.” Savannah attorney James L. Pannell, who is on the ACL, introduced a resolution that would have replaced the 12-point plan. Pannell’s resolution simply called on the Georgia Legislature to increase indigent defense funding in 2002 and 2003, but gave no specific amount. The earlier proposal, Pannell said, was voted on without input and support from judges and prosecutors and should be rescinded. It was, he added, “not a position that the State Bar should take.” He urged the ACL to let the Morgan commission complete its inquiry without the State Bar “painting itself into a corner.” Bar members, he concluded, should work to build a consensus in the meantime, adding that “The State Bar’s credibility is at stake.” If the Bar doesn’t do so, he said, paraphrasing “The Tragedy of Macbeth,” it would be reduced to the player who “struts and frets on the stage, full of sound and fury, signifying nothing.” The time is simply not right, he concluded. Pope said he agreed, adding that the 12-point plan was premature. Any resolution, he said, “has got to be political” and must involve the superior court judges and the governor. But, he added, Barnes, as well as other legislators, is running for re-election next year. “You can’t expect a lot of money in this type of environment. It’s a political situation.” Rome Judicial Circuit Superior Court Judge Walter J. Matthews, the head of the Council of Superior Court Judges, said the Morgan commission was the appropriate forum for developing a plan for reform. Once its findings were released, Matthews said, then others, including the Bar, could offer comment. It made no sense, he added, for the Bar to “jump the gun” and issue its own plan. Matthews reminded ACL members that the judges opposed the 12-point plan. Judges, he argued, had played a critical role over the years in improving indigent defense funding at the local level by lobbying county commissions for more money. Augusta Circuit District Attorney Daniel J. Craig, who heads the Prosecuting Attorneys Council, said prosecutors support improving indigent defense, but had problems with the concept of funding parity between prosecutors and public defenders. That idea, Craig said, is based on misconceptions about the resources prosecutors have and the degree of state control over district attorneys. A plan for fixing the indigent defense system should be based on careful analysis of data, not anecdotes or “war stories, if you will,” Craig said. But E. Wycliffe Orr of Gainesville, Ga., who chaired the state’s Indigent Defense Council about 15 years ago, said the Bar would be regarded as vacillating and timid if it rescinded its May vote. Instead, Orr argued, “We have to really speak the truth” about the failures of Georgia’s indigent defense system. “It is a stain on all branches of government. It is a stain on this great Bar,” he said, adding that change is “long since due. One could well ask, ‘How long? How long?’ “ Bondurant said the right to counsel articulated by the U.S. Supreme Court in Gideon had been “honored in its breach” in Georgia. Indigent defense, he argued, was a public responsibility, not the responsibility of lawyers, as the governor has proposed. Georgia, he said, had 167,000 indigent felony cases last year, but has only 25,000 lawyers. “Do the math,” he said. “To send a civil insurance defense lawyer down to defend a felony criminal case is as much malpractice as sending no lawyer at all.” If the State Bar turns its back on Georgia’s poor, Bondurant said, he wasn’t sure he wanted to be a member. “Have to be,” Pope interjected. Why back a fractured plan destined to fail, given the judicial opposition, Pope said, when the Bar could develop “a reasonable, considered plan that has a chance?” With all due deference to Judge Pope’s crystal ball, said Atlanta lawyer Jeffrey O. Bramlett, “My mama raised me to try to do the right thing.” FIGHTING THE ‘UNWINNABLE’ FIGHT Atlanta criminal defense lawyer Edward T.M. Garland, who had been making notes throughout the discussion, rose to speak. Garland said the debate was really about “lawyers of this state standing up and fighting for the preservation of personal liberty.” Some attorneys might “hide from an unwinnable argument, judge,” Garland said, turning to Pope. But criminal defense lawyers must often argue the unwinnable case, he added. The fight for personal liberty, Garland said, isn’t comfortable or convenient. But, he added, “It’s not whether we can win it. It’s whether it’s right.” While most of those who spoke offered a strong opinion, one of the most important players in the continuing debate over indigent defense didn’t take sides at the meeting. Georgia Supreme Court Chief Justice Norman S. Fletcher has said that reforming indigent defense will be the priority for his tenure as chief justice, but he said he wouldn’t take sides at this point. Getting state funding won’t be an easy task, Fletcher continued, particularly in a legislative session preceding elections. But, he said, he believed that prosecutors and judges sincerely supported improving the system. To do so, he added, the Bar must “speak with one voice” and build consensus. “I’m concerned that if we build such walls … [that] we can’t reconcile them, then we’ll go another 10 years” without substantive change, Fletcher warned. With that, Fletcher left, adding that he thought it inappropriate to watch the vote. “I’m taking names,” quipped Pope. Georgia Court of Appeals Chief Judge G. Alan Blackburn was unequivocal in his stance, urging the Bar committee to stand by its 12-point proposal. He said he understood why judges had been upset with the “abrasive” commentary of that proposal, but added that the principles contained many good ideas. Rescinding the May vote would be seen as backing off the Bar’s desire for reform, Blackburn added. Then he recounted a story. In the late 1950s, Blackburn said, he had had many discussions with a black friend while the two served together in the Air Force. “He was wanting change in America, and I was advocating patience,” Blackburn said. The disagreement had nothing to do with ill feelings, the judge said. “It had to do with a lack of understanding of the problem. I sense some of that today.”

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