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Last fall, a state legislator told Southern Center for Human Rights director Stephen B. Bright that politicians would not tackle the problem of indigent defense “until ordered by the courts.” Since then, Bright has been searching for a way to make that happen. Tuesday, Senior Judge Marvin H. Shoob of the Northern District of Georgia ordered Fulton County, Ga., to take immediate steps to improve its defense of indigent detainees. The judge issued those directives within the context of a 2-year-old settlement agreement on health care for HIV-positive inmates at the Fulton County Jail. Foster v. Fulton County, No. 1:99-cv-900 (N.D. Ga. April 16, 2002). By piggybacking issues regarding the county’s treatment of indigent jail inmates onto the medical care settlement, Bright has secured the attention of a federal judge without being forced to litigate a new and separate suit. That settlement agreement — in which Fulton County promised two years ago to improve medical care for HIV-positive inmates — “became a vehicle,” Bright acknowledged, for the Southern Center for Human Rights’ highly public, 18-month battle to secure adequate legal representation for the state’s indigent detainees. “Our basic approach was to look everywhere we could to try to solve this problem.” The Southern Center sued the county and Sheriff Jacquelyn H. Barrett in 1999 on behalf of the jail’s HIV-positive inmates. The county settled the suit in January 2000, and since then Southern Center attorneys have monitored the jail for compliance with the settlement agreement. On Wednesday, Bright said that, in response to Shoob’s order, Fulton State Chief Judge Albert L. Thompson today will hold the county’s first all-purpose hearings for inmates detained for misdemeanors. Those hearings originally had been scheduled to begin May 15, Bright said. “I would say this is just remarkable in terms of how quickly Judge Thompson has responded.” Barrett praised Shoob’s effort to solve the jail’s chronic medical problems by addressing broader systemic issues of overcrowding and indigent defense. “Given what he clearly is asking for — which is a comprehensive plan for dealing with the numbers we have — I am prepared to do what I need to do,” she said. SHERIFF: ORDER DIVERGES But the sheriff also suggested that the judge’s most recent order has little relation to the initial complaint. “While we have noticed the progression and the expansion of areas of concern to the court, we have also chosen not to fight them for the sake of doing the right thing,” she said. “We’ve taken the position we would rather do what we needed to do for all classes of inmates than to fight it.” But Shoob’s latest foray into indigent defense has left the sheriff uncertain over whether county commissioners and the county attorney will continue to go along. “I’m a little surprised it grew quite as broad as it did,” Barrett said of the progression of federal orders that have required improvements in medical care for all inmates, not just those who are HIV-positive. The orders have demanded the end of overcrowding at the jail and now seek to expand the number of county staff and amount of money earmarked for indigent defense. “All of it is helpful to us as a system. But I’m concerned that we’re in a whole different arena than when we started,” she said. County Attorney Overtis Hicks “O.V.” Brantley briefed the Fulton County Commission during an executive session Wednesday, said Michael Harris, an aide to Fulton Commission Chairman Mike Kenn. Neither Brantley nor Kenn returned phone calls. Bright insisted that Shoob’s order is “very consistent” with the judge’s earlier orders. Shortly after determining in March 2000 that the county was not complying with the settlement agreement and was continuing to provide substandard medical care, Shoob expanded his concerns beyond the HIV-positive inmates who were the plaintiffs. Last year, Shoob began addressing overcrowding as a root cause of the jail’s chronic medical problems and staffing shortages. BRIGHT: SYSTEM COLLAPSING “The whole system is collapsing under overcrowding — the medical system, the security system,” Bright said. “The most critical aspect of this lawsuit is the overcrowding at the jail.” In Tuesday’s order, Shoob directed Fulton to provide counsel within 72 hours to all county jail detainees accused of minor offenses who could not post bail. He also ordered the county to expand the authority of pretrial services to supervise people arrested for misdemeanor offenses and ensure that all people charged with misdemeanors are offered what the judge termed a reasonable bond. In addition, the county must raise the pay for court-appointed counsel in misdemeanor cases from $50 a case “to a reasonable amount,” and must impose a reasonable restriction on the length of time a person may remain in jail without being accused, indicted or tried. He also ordered creation of an “all-purpose” hearing calendar so that misdemeanor detainees could appear before a judge within 72 hours of arrest. Fulton’s current practice is to appoint an attorney for an indigent inmate only after the case is scheduled for a hearing. In addition, the inmate cannot post bail until the county’s solicitor general has filed a formal accusation. As a result, more than 100 inmates have spent more than a month in jail without an attorney, according to Shoob’s order. “Not only does the current treatment of individuals charged with minor offenses contribute to the serious overcrowding problem at the jail, it also constitutes a clear denial of these individuals’ constitutional right to counsel,” Shoob wrote. “The Constitution requires more than this.” INTERVENTION CALLED CRITICAL Shoob’s intervention was critical, Bright said. “I have noticed that the county commission is much more responsive when there’s a federal judge as well as their own local state court judges telling them what to do,” he said. “They want to spend as little as they possibly can. Until there is some pressure to do what the U.S. Constitution requires, I think the government generally spends as little on courts and indigent defense, in particular, as it possibly can.” Georgia Senate Majority Leader Larry Walker confirmed that last year when he told Bright, “We just don’t do anything until we are ordered by the courts. We didn’t integrate the schools. We didn’t have special education. It’s as natural as day follows night.” DEFENDER’S OFFICE EXPANDED The county already has begun addressing its shortcomings regarding indigent defense. Paul Kehir, the head of Fulton’s Conflict Defender Office, announced Monday that the county had signed a 90-day contract to expand his office, which now handles felonies only, to provide representation to misdemeanor defendants in state court. He said he has begun hiring staff and will assign five lawyers, one forensic social worker, two paralegals and one part-time investigator to the state court work.

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