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Last week’s Georgia Court of Appeals decision tossing a guilty plea because of ineffective assistance of counsel likely will reverberate far beyond the case that prompted the ruling. The ruling marked the first time in a noncapital case that a Georgia appellate court has found a defendant’s legal representation so lacking that prejudice to his defense was presumed, rather than having to be proven. The decision comes less than a month before a Georgia Supreme Court commission is scheduled to report on recommendations for reforming Georgia’s indigent defense system. The strongly worded Nov. 26 decision made it clear to lawyers and judges that slipshod and assembly-line lawyering won’t stand, even for less serious crimes. The Sixth Amendment right to effective assistance of counsel “was meant for all defendants, not just those facing capital punishment,” wrote Chief Judge G. Alan Blackburn, joined by six other judges. “Embodied in the right to counsel is the idea that each and every defendant has the right to a minimum level of representation in every case. If a defendant’s counsel gives less than this absolute minimum of assistance, thereby giving what is effectively no representation at all, that defendant should be entitled to a presumption of prejudice whether or not he is being tried for a capital crime.” Heath v. State, No. A02A1604 (Ga. Ct. App. Nov. 26, 2002). CONSTITUTED ‘NO REPRESENTATION’ Blackburn wrote that former Paulding County, Ga., contract defender Jason Shwiller’s representation of an indigent defendant was so bad that it amounted to no representation at all. “The record is replete with evidence of the total lack of any meaningful assistance provided … by Shwiller,” Blackburn found, adding that Shwiller’s client, Richard Anthony Heath, who pleaded guilty to causing serious injury by vehicle, should be allowed to withdraw his plea. Shwiller did not respond to a request for comment. Heath was charged in Paulding with drunk driving, reckless driving and serious injury by vehicle in connection with a head-on collision that badly injured three teen-agers. Shwiller filed an entry of an appearance on Heath’s behalf, then appeared in court July 5, 2001, to plead his client guilty. But he admitted doing virtually nothing between the time he signed on as defense counsel and the time his client entered the guilty plea, Blackburn wrote. Shwiller, who never tried any of the more than 300 indigent cases he handled in 4 1/2 years on the job, did no preparation or investigation of Heath’s case, never met with his client between the arraignment and the plea, and claimed he had no time to investigate the possibility that his client may not have been driving the vehicle at the time of the accident, according to the opinion. Heath’s niece testified at a Paulding hearing on Heath’s motion to withdraw his plea that she called Shwiller to tell him that her uncle’s co-worker may have been driving. The defense lawyer told her “that he had so many cases on his load, that if he looked into every nook and cranny that there was to this case, that he would never get anything done, and that my uncle was nothing but a drunk, … and that his only option … was to say that he was guilty,” according to her testimony cited in the opinion. Shwiller also testified that he did nothing to investigate that witness, the opinion said. Nor did he research whether the victims’ injuries fit the statutory definition of “serious,” Blackburn wrote. Instead, Shwiller testified that he decided a jury would not “hassle over the exact lettering of the words” of the serious injury by vehicle law. Heath was represented on appeal by Gary W. Jones of Powder Springs, Ga., who was also once a Paulding contract defender. Jones said he resigned because the caseload was too heavy. But he took on Heath’s motion to withdraw his guilty plea and took the matter to the local indigent defense committee, which subsequently refused to renew Shwiller’s contract. ‘THE WORST CASE’ OF ASSISTANCE He said he found Heath’s situation to be “the worst case of ineffective assistance” he had ever seen. Jones told the appellate judges in his brief that they could use this case to send a message to public defenders around Georgia: “if you do absolutely nothing to investigate your client’s case and are so thoroughly unfamiliar with his case and the law applicable to it, and then lead him to a plea which is an ambuscade for the both of you, then, you sir, are ineffective.” After reading the decision, Jones said “I believe the Court of Appeals has now sent that message.” He said the case also shows that despite efforts to ensure defendants know the rights they give up by entering a plea, if their lawyer has done an inept job, the plea cannot stand. Alexander T. Rundlet of the Southern Center for Human Rights, who filed an amicus curiae brief in the case, said the appellate ruling was “an excellent result.” Not only did the court find presumptive prejudice in a noncapital case, Rundlet pointed out, but “it’s presumptive prejudice in a guilty plea case.” That means that even when a defendant wants to plead guilty, his or her lawyer must investigate the case and determine that there is a basis for such a plea, Rundlet said. The alarming aspect of Heath’s case, Rundlet said, is that Shwiller had handled at least 300 other cases before this in a similar manner. “The fact that nobody said anything is very telling about our system,” he said. A finding that a defendant’s lawyer was so ineffective that the client is entitled to a presumption of prejudice is rare. In a 1990 death penalty decision, Ross v. Kemp, 260 Ga. 312 (1990), the Supreme Court reversed the rape and murder convictions and the death sentence of Eddie Lee Ross, finding that critical disagreements on strategy between retained counsel James R. Venable, who dozed frequently during the trial, and a court-appointed co-counsel made effective lawyering impossible. The problems in the defense were so pervasive, the justices found, “a particularized inquiry into prejudice would be ‘unguided speculation.’” The Supreme Court cited Ross two years later when it reversed the Fulton County murder conviction of Sanders Cochran, finding that his public defender’s representation was so deficient no specific inquiry into prejudice was needed. In that case, former public defender Harry L. Hutchinson didn’t file any pretrial motions or interview any witnesses face to face, and spent just 45 minutes with his client before the murder trial. Cochran v. State, 262 Ga. 106 (1992).

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