GPDSC - Scott Key & Associates

Tag Archive for: GPDSC

Southern Center Files Suit in Cordele Circuit, Again, for State of Indigent Defense There

January 9, 2014/by J. Scott Key

The AJC reports that The Southern Center for Human Rights has filed suit against GPDSC, its director, the Circuit Public Defender, the District Attorney and others for the state of indigent defense in that circuit. The suit is brought on behalf of 8 indigent defendants, juvenile and adults individually and as representatives of a class of indigent criminal defendants. The suit alleges that adult defendants are forced to wait for months with no contact or minimal contact with a lawyer. In some instances, a non-lawyer investigator has relayed plea offers just before trial. Juveniles have found themselves at some hearings with a lawyers and at others without. The Circuit has no juvenile public defender, and (according to the complaint) when the lawyers are off in court someplace else in the circuit, juvenile court continues, with or without counsel.

In 2003, the Southern Center sued officials in the Cordele Circuit for what was then a contract public defender system. According to the press release that was issued when the recent suit was filed:

The public defenders are unable to spend more than a few minutes per case. Many poor people accused of crimes meet a public defender who knows nothing about them or their charges for the first time in court. After a hurried conversation, many enter guilty pleas and are sentenced. All but a few convictions are obtained through guilty pleas by people who do not receive the most basic elements of legal representation such as substantive attorney-client interviews, investigations, motions practice, and informed, professional advice about whether to plead guilty.

The well-written Complaint may be found here (pdf). The press release is also worth reading.

GPDSC’s First Executive Director Weighs In

February 17, 2012/by J. Scott Key

Aly Palmer, a reporter with the Fulton Daily Report, read the exchanges of the last few days and reported on it at the ATLaw Blog. Michael Mears, an Associate Professor at the John Marshall School of Law and the man who was GPDSC’s very first Executive Directer when it was created, wrote a very thoughtful comment. I’ll quote a passage from it here:

Scott Key is absolutely correct that the current executive branch decision of the governor’s public defender agency creates dual standards, one standard for those criminally charged individuals with money and the clients of the public defender office.

He goes on to note the number of ways that the executive branch’s decision runs afoul of ethical standards, not just the Georgia Rules of Professional Responsibility, but also ABA standards and standard for how Federal defenders should conduct themselves in conflict cases. And Professor Mears says that nothing less than the credibility of GPDSC is at stake in this question.

My Reply to the Circuit Public Defender

February 15, 2012/by J. Scott Key

To catch you up to speed, I recently blogged about GPDSC’s recent argument to the Supreme Court of Georgia that public defenders should have the right to represent clients in the same circuit public defender’s office even when there is a conflict in the representation. Mr. Samuel Merritt, a Circuit Public Defender disagreed. I posted his comment, quite a lengthy one, as a blog post yesterday. I commend both to your reading. I also am going to offer some observations below about Mr. Merritt’s argument.

The Ad Hominem Arguments

Mr. Merritt does a couple of rhetorical things in the post. They’re both worth examining as examples of a classic ad hominem attack. An ad hominem argument is an attempt to refute the truth of a claim by pointing out something negative about the person supporting it. Mr. Merritt shrouds the opening and closing of this argument with this rhetorical device. Note that paragraph one is an attack on me as either uninformed or misinformed. Of course, Mr. Merritt doesn’t know me at all and can’t possibly know how informed I am. He doesn’t know, for instance, that I am the chair of the amicus committee for the Georgia Association of Criminal Defense Lawyers and that our committee, in conjunction with our organization’s indigent defense committee chair provided amicus support for a similar proposed rule regarding conflicts in public defender’s offices. He wouldn’t know that I have read the briefs, watched the oral argument in its entirety and have been in conversation with our indigent defense chair, himself a man who represents indigent defendants, about this rule. But his post is not about me, it’s about the fact that he disagrees with me.

And Mr. Merritt’s argument also closes with an ad hominem attack, this one a bit more powerful for its subtlety. I’ll quote it verbatim to demonstrate its worthiness to be included in a philosophy 101 textbook as an example of the ad hominem fallacy: “But I do take issue when someone from outside the public defender world undertakes to criticize one of my colleagues …” This passage is from Mr. Merritt’s last sentence. We have two choices in how to interpret this passage. One, is that it’s merely a rhetorical device. Better to attack me as the person making the argument than to attack the argument itself (it’s the kind of thing, by the way, that prosecutors often do in closing argument.). At least, I hope that it’s merely a rhetorical device. The less charitable view of the argument is that it expresses an honest belief that nobody had better dare criticize GPDSC or its actions unless they are a person within that system. I am hesitant to indulge the latter too terribly much because of how offensive it potentially is. GPDSC, as Mr. Merritt points out, is a government agency. And it is troubling to think that there is any government official or agency that is beyond criticism from an ordinary citizen unless the citizen part of that “world.”

Think, for a moment, how the argument sounds if directed to criticism of another government agency. Don’t like the governor? Tough. You don’t work in his office. Don’t like what the legislature is doing? Unless you are a legislator yourself, I take issue with your right to even say things about the legislature. So, you’ll see, I hope that the closing comment was merely a rhetorical thing. If it expresses an honest heartfelt belief about my right to even criticize, then it is a perfect example of the iron law of bureaucracy I spoke about in my previous post. The First Amendment, of course, exists precisely so that ordinary people outside the “world” of government can criticize it. And Mr. Merritt’s colleague appeared at the Supreme Court as a government agent, in a public courtroom, where he articulated an official agency position. When he did that, I understand (not merely an understanding I developed in law school but an understanding that dates back to a high school civics class I took in the 9th grade) that citizens can criticize. If I’m wrong about that, either government has changed or I’m just fundamentally mistaken. Or maybe I’ve been teleported to Iran and was unaware until recently.

Another observation before I move on. I’m not sure what the membership requirements are to enter the “public defender world.” Apparently, the fact that I carry an indigent appellate caseload (albeit from a county that opted out of GPDSC and therefore funds experts and actually pays the lawyers without cutting their bill) and have for the past ten years, does not make me eligible for citizenship in the “public defender world.” And perhaps Mr. Merritt didn’t know these things about me before he penned his comment in which he criticizes me for being uninformed. And if you, as the reader, are a citizen of the State of Georgia, you are bona fide to criticize Mr. Merritt’s colleague, too. Why? Because he is part of a government agency that took a public position on that agency’s behalf in a public courtroom. Were the Justices who questioned Mr. Merritt’s colleague at the oral argument out of line, too? They, too, are not part of Mr. Merritt’s “public defender world.”

The Attorney General’s Role

Mr. Merritt calls the fact that the Circuit Public Defender and the Attorney General appeared as co-counsel at the argument a fairly normal thing – “[h]ardly a surprise, a secret, or a sign of skulduggery.” He is right about the fact that the Attorney General represents executive agencies. And, yes, GPDSC, is an executive agency. It was not always so, of course. At its creation, GPDSC was in the judicial branch of government. In 2008, Gov. Perdue and the Georgia General Assembly moved GPDSC into the executive branch, the same branch of government as the attorney general, the prosecutor who seeks to put defendants in jail, and the police officer who arrested the defendant. That move, itself, was criticized as creating an inherent conflict. A surprise? Hardly. A secret? Not at all. In fact, the public defender and the Assistant Attorney General shared the same table as co-counsel in a very deliberate and public way (which was part of the point of my original post). Sculduggery? At a systemic level, I’m not so sure.

The attorney general’s office represents the State at the appellate level in murder cases, in cases where the constitutionality of a criminal statute is at question, and on certain occasions to prosecute indigent defendants in trial courts. So, yes, it is interesting to note that the attorney general is also GPDSC’s lawyer. My original post was about one type of conflict. But I welcome the opportunity to speak of another.

Financial Incentive

I want to spend a little time with this argument: “a public defender’s office is NOT the same as a private law firm because public defenders do not have a financial interest in the outcome of their case …” (author’s all caps). As a lawyer in private practice, I actually don’t have a financial interest in a case’s outcome. If I took a criminal case on a contingency arrangement (“you don’t pay unless I get you acquitted or your conviction reversed on appeal”), I’d likely go out of business before the folks in Atlanta could disbar me. My clients pay me to represent them, but my fee arrangement is not results-based. I’d commend my fellow member of the bar to Rule 1.5 (d)(2) of the Georgia Rules of Professional Conduct.

The conflict rule does not exist to deal with a profit motive. The conflict rule exists so that a lawyer’s duty to one client does not conflict with a lawyer’s duty to provide zealous advocacy to another client. It’s not a matter of finances, it’s a matter of loyalty. I’d commend my fellow member of the bar to the Comments to Rule 1.7 of the Georgia Rules of Professional Conduct. Finances aren’t mentioned at all. Count the number of times you see the world “loyalty” or some similar word.

To be sure, I’m more likely to be hired if I’m a good lawyer than a bad lawyer. And I’m more likely to command a better fee if I can do a good job than if I’m mediocre. And while being a public defender is certainly different, I would hope that there are still incentives to be good at your job. And I would hope that those incentives are somewhat financial (if you can’t do the job well, you lose your paycheck). And I am sure that there must be performance standards in place for circuit public defenders as well. There’s a profit motive for all of us, even if we are employees in a law firm or a public defender’s office.

Again, why should a client who hires a private lawyer expect a different duty of loyalty than a client who must rely upon GPDSC? Why does the definition of what is ethical differ based upon the amount of money in a person’s bank account?

Profit motive fuels GPDSC’s argument. With a legislature that chooses not to adequately fund the system, the agency seeks to change the very definition of what ethical representation is. But they don’t seek to change the game for those with money. If economics weren’t an issue, would GPDSC ever undertake its present course of action? Would the agency seek to lower the bar on principle alone? One would hope not.

Enter the Star Chamber

Mr. Merritt refers to the meeting of the Formal Advisory Board as a “Star Chamber Proceeding … that the public was not able to attend.” And he refers to the “brand new idea that the imputed conflict rule applies to public defenders.”

My knowledge of 14th through 16th century English history is a bit rusty, but I thought that the Star Chamber was a secret court where people were prosecuted and were sometimes ordered to be beheaded. I was unaware that the Star Chamber promulgated rules for barristers.

I perceive no (to borrow a word) “skulduggery” in the fact that a State Bar meeting where proposed formal advisory rules are promulgated would be closed to the public. The State Bar of Georgia is not a governmental entity. It is set up as as self-regulating professional association for persons in Georgia who practice law. I would commend my fellow member of the bar to Rule 4-402, which sets out the membership and procedures of the Formal Advisory Rule Committee. There is a place on the Board for one member of the Georgia Association of Criminal Defense Lawyers and one member of the Georgia District Attorneys Association. Note, that the criminal defense lawyer representative could either be a public defender or a private lawyer. There also seats for five members of the Bar at large. And there is a place for a faculty member of each Georgia accredited law school (who could be an indigent defender, assuming that a faculty member who provides indigent defense services is a bona fide member of the “public defender world”) There is also a place for a member of the Investigative Panel (who could be a public defender) and a member of the Review Panel (who could be a public defender). If public defenders are not on that committee, it could be because either (1) there’s a vast conspiracy afoot to get them out of the room; or (2) because public defenders aren’t terribly active in the Bar. I don’t want to risk making another uninformed comment on this subject, so I won’t guess which.

Also, one more thing as to the “Star Chamber” piece. The Board operates by a transparent set of rules. They’re worth reading.

The Notion of “New Law”

The conflict rule isn’t new. I’ve been out of law school for around a decade, and I remember hearing about it in my Professional Responsibility class. I think it might have been on day one – right after the professor finished explaining the syllabus. Rule 1.7 predates GPDSC. Nor, by the way, is the concept of imputed disqualification anything new to the practice of law.

The “new,” “dreamed up,” “incorrect and frankly insulting” rule states simply this: “[l]awyers employed in the same circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict in doing so.” If a public defender is insulted by this language then so should every lawyer in every office or firm where the concept of imputed disqualification applies. I suppose we could scrap Rule 1.10 altogether, reasoning that it hurts our feelings and that the Bar should just trust us all. By that rationale, perhaps we should scrap the Rules of Professional Conduct wholesale.

Conclusion

If the fact that I am not a member of the “public defender world” prohibits me from criticizing a particular government agency, then I suppose you’ll have to add another count to my indictment. And if I was misinformed in my previous post, I hope that I have been remediated through my links above. After reading Mr. Merritt’s observations, I am still among the ranks of “most lawyers” who disagree with his position, probably more so now.

If a member of the agency “takes issue” with my criticisms again, then I suppose that there is just no hope for me.

Even More Reasons to Run From GPDSC and a Modest Proposal

January 16, 2012/by J. Scott Key

A blog post I wrote a week ago about GPDSC’s alliance with the Attorney General’s Office to oppose the Georgia Bar’s formal advisory opinion regarding imputed conflicts for indigent defendants inspired a few comments over on my Facebook page. A friend of mine who is a former assistant public defender commented:

The absence of conflict-free counsel is hardly the most shocking failure of the current system. When I was an APD, I carried 50-70 cases on a trial calendar at once. I had no idea which case would be tried when. I was expected to announce “ready” in the vast majority of my cases.

Assistant public defenders often carry a much higher caseload than ABA Standards would allow. I point out the state of affairs in no way with the intent to bash individual public defenders. Indeed, for many, the role of public defender is a noble calling. And some of the most talented appellate and trial lawyers are know are public defenders. My critique is more systemic.

Rather, the lack of resources for public defenders, in terms of money and personnel, is at the level of crisis in Georgia. We have a system in place operating without a committment to run it properly.

Unfortunately, for a defendant who finds himself convicted in the midst of this crisis, appellate courts are not going to be receptive to an ineffective assistance of counsel claim. Rarely, likely less than 5% of the time, does an IAC claim work because the standard for effectiveness it the ultimate low bar.

And the greater problem, at least in Georgia at the state level (there are a few county systems in Georgia that are wonderful), is that the free market is a greater delivery system for criminal defense representation than is the government. Of course, the indigent cannot enter the free market. Meanwhile, the government is quite a deadly deliverer of prosecutions.

I wonder if it isn’t time for a “no defendant left behind” model, which would provide government vouchers for indigents to hire criminal defense counsel.

Rob Teilhet Resigns as Head of Georgia Public Defender Standards Council

December 10, 2010/by J. Scott Key

Rob Teilhet has tendered his resignation as head of GPDSC after only three months in office. Peach Pundit reports on the resignation in a blog post yesterday. I thought his days might be numbered when I met him last month. He came to a conference of the Georgia Association of Criminal Defense Lawyers and spoke to the group. If you don’t know the history, the fact that the new-appointed head of defending the poor was coming to speak to a group dedicated to defending the accused would not seem particularly controversial. And anywhere else but Georgia, such an appearance would probably be expected.

However, if you know something about the history of this organization, you’d know that Mr. Teilhet’s appearance before GACDL might have not been a wise political move.

GPDSC is a political organization — a really unpopular political organization.

GACDL is a non-profit organization whose mission is, in part “to promote constant improvement in the administration of criminal justice.” In Georgia, the head of GPDSC is not expected to advance the administration of justice.In some other state maybe. But not Georgia. We don’t coddle criminals here. Go to some liberal state like Alabama if you’re looking for that. The people ruling Georgia didn’t major in political science so that they could help the poor or better the court system. The fact that the poor might need lawyers doesn’t inspire the inner Atticus Finch of Georgia Republican. The fact that Georgians accused of crimes might need lawyers inspires the same feeling that I get when I need to rake the leaves in the front yard. I generally would rather just cut down the trees once and for all.

I’m not saying that Mr. Teilhet’s appearance at GACDL was what cost him his job. GACDL probably doesn’t register enough on the Republican radar for that. Though an appearance of the head of GPDSC at a GACDL event is very rare (the goals of the two organizations being at odds with one another and all). Rather, it seemed that Mr. Teilhet was going to do a good job. And that may have been where things began to go wrong for him.

Or a simpler explanation is that the governor-elect has someone else in mind for the job as a “favor.” Which may be even less benign than what I’ve suggested above. Because if being the head of GPDSC is essentially a political position, then indigent defense will likely continue to suffer.

The criminally accused are not a very popular political constituency.

New Georgia Conflict Opinion: A Criminal Appeals Lawyer’s Dream

November 12, 2010/by J. Scott Key

The new advisory opinion (PDF Page 92) for the handling of conflict cases for the Georgia Public Defender Standards Council was the talk of the recent Fall Seminar (PDF) for the Georgia Association of Criminal Defense Lawyers. This issue has been divisive among the criminal defense bar. GACDL has not weighed in as amicus counsel in litigation involving the conflict rule. The conflict rule is a step in the right direction but does not go far enough. And the rule will be ripe for challenge under the Sixth Amendment in future appellate cases. First, a little background on the rule and a discussion of why it’s a step in the right direction. Finally, I’ll discuss why it will probably be an invitation for future Sixth Amendment Ineffective Assistance of Counsel claims because it doesn’t go far enough.

The Conflict Rule

The State Bar of Georgia issued a formal advisory opinion holding that a circuit public defender’s office is a “law firm” as defined by Georgia Rule of Professional Conduct 1.10(a). Under that rule, a conflict in representation that would prevent a lawyer from representing co-defendants in a single matter is imputed to other lawyers working in the same firm and is an ethical bar to any lawyer in the firm representing the co-defendant.

To use a legal term of art that can be traced back to the time of Sir William Blackston e: “duh.”

We were quickly developing into a State with two sets of conflict rules: one for rich people and another for the other 90% of the criminal calendar. Case law from the Supreme Court of Georgia was starting to go in the other direction. For instance, in Burns v. State, 638 S.E.2d 299 (2006), the Supreme Court of Georgia declined to adopt a per se rule that lawyers in a single public defender’s office cannot represent multiple defendants in the same matter. The Supreme Court of Georgia found that there was no conflict in the particular case and declined to make any rule. The decision also seemed politically expedient for 2006 when GPDSC was just beginning to financially melt down. The mess got worse. Conflicts were being ignored with impunity when the defendant happened to be poor.

Then, the State Bar of Georgia stepped in and issued the formal advisory opinion (PDF Page 92). The opinion was not well-received by Georgia’s Republic legislative regime. Senator John Wiles, R-Kennesaw supported a proposal to abolish the State Bar of Georgia. The former Bar President then sent an email to the Georgia Bar’s Board of Governors asking them to oppose his candidacy. He lost in the Republican Primary.

Quoting Blackstone again: bwa ha ha ha ha

So, Here’s the Sixth Amendment Problem

The State Bar has held that a public defender in one office can represent conflict clients in another circuit public defender’s office. And that is the route GPDSC has chosen. Think of the levels of Sixth Amendment problems and how, to quote Mr. Blackstone, “whacked out” this system is

GPDSC is a single statewide law firm governed by approximately 40 managing partners, directed by a council of senior partners, and a centralized chief partner. If it isn’t, then why can’t I open an office in another Georgia county and use that office to split co-defendants with the guy I allow to “run” that office? More profit for me, right?
How can assistant public defenders possibly manage a caseload that is already too high plus a load of conflict cases from neighboring counties?
What about direct appeals? A big cause of conflicts is a claim of ineffective assistance of counsel by a convicted defendant. So, under the new system, trial attorneys will likely mix busy trial practices and an appellate practice (handling most of every calendar in an assigned courtroom plus running an appellate practice). It’s an invitation to ineffective assistance of appellate counsel
The resource problem remains. In the Advisory Opinion, the Bar notes that part of why you should impute a conflict within a circuit defender’s officer is that a single supervisor might have an incentive to manipulate resources to move the cases. (“oh, your guy won’t claim the dope in the car. Well, let me show you your new office, back there by the copier.”) And there would be a tendency to compete for investigative resources. So, now imagine the conflict defender walking into a foreign office and trying to ask the local Public Defender to devote resources for this interloper or the APD’s own supervisor to allocate resources for the foreign office when he goes to another county to do a conflict case.

So, habeas counsel, get ready to start raising new IAC claims. And yes, conflict issues are in 6th Amendment territory. For more on that idea, check out Holloway v. Arkansas, 435 U.S. 475 (1978).

GPDSC is Getting a Lawyer to Investigate Itself

August 23, 2010/by J. Scott Key

R. Robin McDonald is on a roll. She reports in the Fulton Daily Report’s ATLAW Blog that The Georgia Public Defender Standards Council has retained the previous president of the State Bar of Georgia “to investigate whether an affair between former Griffin Superior Court Judge Paschal English and Kim Cornwell, a Griffin Circuit public defender, compromised any of Cornwell’s cases that were adjudicated by English.” Bill Rankin, of the Atlanta Journal Constitution reports, “there are as many as 450 cases in question.”

According to Mack Crawford, the outgoing Director of GPDSC and incoming replacement for one of the two defrocked Superior Court Judges, hired former president Cavan because “I felt like it needed to be someone who wasn’t associated with the circuit.” In other words, he wanted someone independent. Ms. McDonald does not report whether Cavan got his money up front. Other lawyers retained by GPDSC have found that the agency doesn’t always pay up or arbitrarily cuts the bill.

It is quite the development.

So, just to make sure I understand this, it might be a good idea to parse it out. GPDSC, an agency that lacks sufficient funding to provide lawyers to many Georgians, an agency that was just sued for letting indigent appellants languish in jail without a lawyer, and an agency that refuses to pay appointed death penalty defenders, has hired the former president of the Georgia Bar as its attorney. Its own attorney is now going to bill some hours to the agency to determine whether several years worth of cases that one of its own public defenders handled should be re-opened. If they are to be re-opened, GPDSC’s “independent” counsel will say so, and GPDSC will then be responsible for paying to represent these defendants again. Oh, and if GPDSC’s lawyer finds out that cases were compromised by its public defender, it will self-report and open itself to civil exposure in malpractice and maybe a civil rights suit — perhaps even a class action. And, as a coincidental aside, the director that hired Mr. Cavan is an incoming Superior Court Judge in the Judicial Circuit where the investigation will take place.

And this, Mr. Crawford, explains, is an independent investigation. So, if I hire a lawyer to perform a task, have I retained someone who is independent of me? I thought that I was the legal representative of my clients for all these years.

What is Mr. Cavan’s assignment as the agency’s new lawyer? It is “to look at the situation and report back to the chairman of the [Standards] council as to how or what if the council needs to take any action of any kind.”

I know that only the government can gamble legally in Georgia. But does anyone want to place a friendly wager about what the answer to that question will be?

Weekend Music About People who Need a Criminal Appellate Lawyer

August 13, 2010/by J. Scott Key

Music is replete with songs about people who had some bad stuff happen to them at their trial and who need an appellate lawyer. So, I am kicking off a weekly series featuring songs about people who need a good criminal appeals or habeas lawyer. To kick things off, let’s listen to Steve Earle from 1991, singing “Billy Austin.” Billy needed a good appellate lawyer, and now it’s a little late. As you listen, see what issues you can spot. There’s a pretty good ineffective assistance of counsel claim in here, and it also appears that some mitigation got left on the table. He called the police on himself — acceptance of responsibility. But maybe it just makes him sound more cold.

We find out pretty quickly that Billy wasn’t tried in Georgia. One, he got a “court appointed lawyer,” which we don’t really fund for death penalty defendants in Georgia. Also, his “trial was over quickly.” Defendants in death cases in Georgia don’t really get a speedy trial. They languish in the county jail.