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Justices of the Georgia Supreme Court today will receive a special commission’s proposals on how to fix the state’s system of providing lawyers to poor defendants. The panel’s recommendations likely will require legislative approval, but an appeal from Paulding County, Ga., prosecutors may give the high court a more immediate chance to repair the state’s indigent defense program. The prosecutors have indicated they will ask the high court to review the Georgia Court of Appeals’ decision last month to toss a guilty plea because the defense lawyer’s performance amounted to no representation. The unanimous appellate decision established for the first time in a noncapital case that a defendant who received “less than an absolute minimum of representation” is entitled to a presumption of prejudice, meaning he could withdraw his guilty plea or receive a new trial. Paulding District Attorney James R. Osborne and Assistant District Attorney Aaron S. Henrickson notified the appeals court Dec. 5 that they will petition the high court for certiorari. Henrickson declined to explain prosecutors’ legal argument, saying, “I’ll let the petition speak for itself when it gets filed,” which should be early next week. Georgia Supreme Court Chief Justice Norman S. Fletcher, an outspoken supporter of reforming the state’s indigent defense system, told legislators in January that some counties have “woefully inadequate” programs. If the state high court grants certiorari, Fletcher would have the opportunity to put an exclamation point on the appeals court’s decision, which was widely praised by lawyers who support Fletcher’s cause. However, the Georgia Supreme Court’s ideological split on some criminal matters suggests the case might not be a slam dunk for the indigent-defense community. For example, the court voted 4-3 in 1999 that a death row inmate who couldn’t afford a lawyer for his habeas corpus appeal was not entitled to one provided by the state. It takes votes by four of the court’s seven justices to grant a petition for certiorari — potentially putting the focus on the court’s reputed swing vote, Justice Carol W. Hunstein. 15-YEAR PRISON SENTENCE The decision at issue involves Richard Anthony Heath, who was charged with driving under the influence and other crimes after a head-on collision badly injured three teen-agers. Heath last year pleaded guilty to three counts of causing a serious injury by vehicle, resulting in a 15-year prison sentence and 15 years probation. Heath appealed, claiming his public defender had done so little on his behalf that his Sixth Amendment right to counsel was violated. A seven-judge panel of the appeals court agreed in a decision written by Chief Judge G. Alan Blackburn. Heath’s public defender, Dallas lawyer Jason T. Shwiller, admitted doing virtually nothing between the time he signed on as defense counsel and the time his client entered the guilty plea 16 months later, Blackburn reported. The chief judge, who has also spoken in favor of indigent-defense reform, added that Shwiller never tried any of the more than 300 indigent cases he has handled in 4 1/2 years on the job. Blackburn said that Shwiller also did no preparation or investigation for 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. Shwiller could not be reached. Blackburn’s strongly worded decision made it clear to lawyers and judges that slipshod and assembly line lawyering won’t stand in criminal matters. “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,” Blackburn wrote. “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). Heath’s current lawyer, Gary W. Jones of Powder Springs, Ga., said he would be very surprised if the high court agreed to hear the prosecutors’ appeal, wondering aloud “why the district attorney’s office would want to churn this up even more.” However, Jones added, “I kind of see where they’re coming from. … The DA in Paulding is worried about having Mr. Shwiller’s other cases reversed.” Flint Circuit District Attorney Tommy K. Floyd, who chairs the Prosecuting Attorneys’ Council of Georgia, said, “To get a clear opinion from the state’s highest court wouldn’t be a bad idea.” Speaking from a mobile phone, Floyd noted that he did not have the Heath decision in front of him. But he speculated the appeals court decision may have established a precedent that would make it easier for defendants to prove their lawyers were ineffective. “You can’t have guilty pleas unraveling,” he said, emphasizing the court needs to establish a balance between effective representation and “finality of the case.” With the Paulding certiorari petition, the Georgia Supreme Court has an opportunity to put the Heath case to rest by refusing to take it. That’s the result Emmet J. Bondurant expects. A longtime advocate for indigent defense reform, Bondurant said he didn’t think the court would disturb the appeals court decision because “Judge Blackburn did an exceptionally good job.” COURT PATTERNS Jones, Heath’s lawyer, pointed out that while prisoners frequently claim their counsel was ineffective, “99 percent of the court’s decisions don’t find ineffective assistance.” However, when faced with lawyers who have failed to object to a botched jury charge or did not notice that a speedy-trial demand was not met, the justices have unanimously agreed representation was ineffective. But the court has split over some high-profile criminal matters — in cases cited by lawyers who suggest that Hunstein is the court’s swing vote when it comes to criminal law. In 1999, Hunstein provided the fourth vote to Justices P. Harris Hines, George H. Carley and Hugh P. Thompson in finding no legal error in the fact that Exzavious Lee Gibson, a condemned murderer with an IQ of 76, was forced to represent himself in claiming his first lawyer had been ineffective. They held that it was up to the General Assembly to change the law to provide lawyers for poor habeas petitioners. Joined by then-Chief Justice Robert Benham and Justice Leah Ward Sears, Fletcher authored an angry dissent, calling the majority reasoning “a weak excuse for this Court to evade its responsibility to ensure the guarantees of the constitution.” Gibson v. Turpin, 270 Ga. 855 (Ga. Feb. 22, 1999). In 2001, however, Hunstein joined Benham, Fletcher and Sears in finding Georgia’s electric chair violated the U.S. Constitution’s prohibition against cruel and unusual punishment. Dawson v. State, 274 Ga. 327 (2001). While the Heath case does not involve lawyer discipline, Hunstein’s rulings in that area could be instructive: She frequently argues for harsher punishments for wayward lawyers than her colleagues do.

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