The Guiding Hand of Counsel: Effective Representation for Indigent Defendants in the Cordele Judicial Circuit
| Citation | Vol. 66 No. 3 |
| Publication year | 2015 |
The Guiding Hand of Counsel: Effective Representation for Indigent Defendants in the Cordele Judicial Circuit
Lesley Rowe
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The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.1
The right to be represented by an attorney at a criminal trial is a fundamental right guaranteed by the Georgia constitution.2 If a criminal defendant cannot afford to hire an attorney, the state must provide one.3 Unfortunately, upholding this constitutional mandate has been challenging in some parts of the state. In January 2014, the
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Southern Center for Human Rights sued a number of defendants on behalf of indigent plaintiffs in the Cordele Judicial Circuit for a second time, claiming that the quality of representation that indigent defendants in that circuit receive fails to meet the constitutional guarantee of assistance of counsel.4 This lawsuit highlights a critical gap in access to justice for some of the state's poorest citizens.
Gideon v. Wainwright5 is the seminal case in American jurisprudence holding that indigent criminal defendants are entitled to representation by counsel to ensure they receive a fair trial.6 Gideon was charged with a felony in Florida, and he requested an attorney when he appeared in court. He could not afford to hire counsel himself, and he informed the court that "[t]he United States Supreme Court says I am entitled to be represented by Counsel."7 However, Florida law only allowed the appointment of counsel when a criminal defendant was charged with a capital crime, so the trial court denied Gideon's request.8 Gideon defended himself "about as well as could be expected from a layman."9 Nonetheless, the jury found him guilty, and Gideon received a sentence of five years in state prison. He filed a petition for habeas corpus, claiming the refusal of the trial court to appoint counsel to represent him violated his constitutional rights under the Fourth, Fifth, and Fourteenth Amendments. The Florida Supreme Court denied relief.10 The United States Supreme Court granted certiorari to resolve "the problem of a defendant's federal constitutional right to counsel in a state court" by deciding whether Betts v. Brady11 should be overturned.12 The Supreme Court appointed counsel for Gideon for the appeal.13
The Court began its analysis by noting that the facts of Betts and Gideon are "strikingly" similar.14 At his arraignment, Betts had
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requested that the judge appoint an attorney for him because he could not afford one. The court did not comply with this request because, at the time, that county only appointed counsel for indigent defendants accused of murder or rape. Betts pled not guilty and defended himself at his bench trial. The judge found him guilty and sentenced him to eight years in prison.15 Betts filed a petition for habeas corpus, but he was denied relief by the Maryland Court of Appeals as well as the United States Supreme Court.16 The Supreme Court had held in Betts "that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment."17 Twenty-one years later in Gideon, the Supreme Court overruled Betts.18
In so doing, the Court began its analysis with the Sixth Amendment,19 which it has construed as giving criminal defendants in federal courts the right to appointed counsel if they cannot afford to engage an attorney for their defense.20 The Court had declined to extend this right to criminal defendants in state courts via the Fourteenth Amendment in Betts, basing its decision on "historical data" and concluding that "appointment of counsel is not a fundamental right, essential to a fair trial."21 In Gideon, the Court disagreed with this conclusion 22
The Court surveyed a number of prior decisions in which it had held that the right to counsel is, in fact, a fundamental right.23 In Powell v. Alabama,24 which was decided ten years prior to Betts, the Court had concluded that "the right to the the aid of counsel is of this fundamental character."25 While the Court in Powell had limited its holding to the facts of that case, in Gideon the Court noted that this check does not change the conclusion that the right to counsel is a fundamental one.26 Four years later, the Court reaffirmed this assessment in Grosjean v. American Press Co.27 when it observed that the Due Process Clause of
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the Fourteenth Amendment28 protected "the fundamental right of the accused to the aid of counsel in a criminal prosecution" against state action.29 Four years after Grosjean, the Court, in Johnson v. Zerbst,30 once again stated that having the assistance of counsel "is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty."31
Observing that the Court in Betts had broken with this long line of precedent when it held that the assistance of counsel was not a fundamental right protected by the Sixth and Fourteenth Amendments, the Court in Gideon overturned Betts to "restore constitutional principles established to achieve a fair system of justice."32 The Court noted the "obvious truth" that counsel must be provided for a person who cannot afford it to ensure a fair trial, observing that the government spends large sums of money to prosecute crimes, and defendants who are able to hire defense attorneys do as well.33 The "noble ideal" of the founding fathers that every defendant will stand equal before an impartial tribunal cannot be attained if the poorest defendants are not afforded the opportunity to be represented by counsel.34 Quoting Justice Sutherland, the Court closed by reflecting that every laymen needs "the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."35
Since Gideon, the Supreme Court has extended the Sixth Amendment right to counsel to include representation at many pretrial proceedings and on appeal, and, sometimes, a right to expert witnesses.36 In Georgia, the state constitution has included a right-to-counsel provision since 1868.37 This right had become "firmly entrenched" in state law by 1874.38 Georgia's constitution grants "[e]very person charged with
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an offense against the laws of this state . . . the privilege and benefit of counsel."39
The Georgia General Assembly began addressing the federal and state constitutional mandates in 1968 with the Georgia Criminal Justice Act,40 which burdened each of the state's 159 counties with establishing and funding local indigent defense programs.41 This county-by-county approach led to inconsistent development of indigent defense in Georgia.42 The next legislation addressing indigent defense was passed eleven years later.43 The Georgia Indigent Defense Act of 197944 created a judicial agency called the Georgia Indigent Defense Counsel (GIDC) to dispense taxpayer funds to county indigent defense programs and to make recommendations to the Georgia Supreme Court regarding guidelines for operating these programs.45 The GIDC was supposed to oversee the county systems at the state level, but it did not have sufficient authority over county systems to make changes or improvements.46
In December of 2000, the Georgia Supreme Court established the Chief Justice's Commission on Indigent Defense (the Commission) in an effort to improve the quality of indigent defense in Georgia47 The Commission worked with an independent research firm that specializes in indigent defense to conduct research, develop a plan for improving services in Georgia, and create a timetable for implementation of the Commission's recommendations.48 After working for two years on this project, the Commission delivered its report to the Georgia Supreme
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Court on December 12, 2002.49 At the time, county governments overwhelmingly funded indigent defense in Georgia; the state was only underwriting 11.6% of the total cost.50 In each county, the county government, the superior court, and the local bar association operated the indigent defense program.51 There were three different systems in place statewide.52 Seventy-three counties used a panel system in which an attorney would be appointed from a panel of defense attorneys.53 Fifty-nine counties used a contract system in which a defense attorney was paid a flat fee to represent some or all of the county's indigent defendants.54 Twenty counties used a public defender system with a full-time government employee acting as public defender.55
After evaluating their research, the Commission found that Georgia's system failed to fulfill the constitutional mandate to provide the assistance of counsel to criminal defendants.56 It gave two main reasons for this shortfall.57 First, Georgia was not adequately funding the indigent defense systems in place.58...
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