Category — Georgia

From the Atlanta Journal-Constitution:

The state’s public defender system once again appears headed toward a budget crisis.

At its Nov. 30 board meeting, the Georgia Public Defender Standards Council will be given two options to deal with an anticipated funding shortfall. One option is to stop paying private attorneys who are defending more than 9,000 criminal cases across the state at the end of this year.

This option risks shutting down a large part of the defender system and sparking litigation over funding issues. Funds are also running out for about 30 death-penalty cases.

The second option is to transfer $2.7 million already budgeted to pay the public defender workforce in June to cover the costs of defending those cases in the coming months. But if the General Assembly does not give the council a midyear cash infusion, the defender system will have to furlough its 398 state-salaried workforce next June. The council’s staff is recommending the board take this route.

The defender council’s funding predicament is laid out in internal documents obtained by The Atlanta Journal-Constitution through the Open Records Act.

“We’re taking it one day at a time,” the council’s director, Mack Crawford said Tuesday. “We do have problems and we’re doing all we can to work with the governor, the Legislature and the state’s judges to try and get through this.”

Henry County Superior Court Judge Arch McGarity said the state judiciary is aware of the problem.

“There are certain judges who are concerned about it,” said McGarity, who heads the Council of Superior Court Judges. “The primary concern is death-penalty cases.”

The statewide public defender system, now in its third year of operation, replaced a hodgepodge of uneven, underfunded and overwhelmed county-run programs providing legal representation for poor people accused of crimes. A state Supreme Court commission found that inadequate representation in the prior system heightened the chances of innocent people being convicted. But the new system has struggled due to budget cuts and a steady drain of legal fees and expenses — already more than $1.2 million — for the defense of accused courthouse killer Brian Nichols.

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From The Associated Press:

Lawyers for a man charged with murder in a rampage that started in a courtroom urged the state Supreme Court on Thursday to reject prosecutors’ efforts to replace them and the judge overseeing the case.

The trial of Brian Nichols, accused of killing the judge in his rape trial and three other people in 2005, has been put on hold by Superior Court Judge Hilton Fuller because the state public defender’s office says it has no more money for an effort that already has cost $1.8 million.

District Attorney Paul Howard has sued Fuller, asking the Supreme Court to order the judge to replace the outside attorneys appointed to represent Nichols with staff attorneys from the defender’s office. He also wants the high court to order that jury selection resume, and questioned whether Fuller should be removed from the case.

Nichols’ lawyers said in their filing that prosecutors and the court agreed to the four attorneys representing Nichols, and that there is no reason to remove them now. They added that removing them would “decimate the Sixth Amendment right to counsel,” for Nichols and for other indigent defendants.

The defense said Fuller has done nothing to warrant being removed from the case, and they noted most of his rulings have been in favor of prosecutors.

Nichols’ lawyers said Howard’s filing “is nothing more than a blatant effort to discharge a judge whose rulings and management of an ongoing criminal proceeding he dislikes, and to remove a defendant’s attorneys whose insistence on adequate funding for the defense function he cannot countenance.”

Howard filed a supplement to his lawsuit Thursday, saying there is no reason not to grant the relief he is requesting, because Fuller has stated he does not plan to file a response to the suit and the state attorney general has declined to represent Fuller, citing a conflict of interest.

The high court has yet to agree to hear the lawsuit or schedule any hearings.

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From the Atlanta Journal-Constitution:

The case of Brian Nichols, who is to be tried for escaping and killing four people, including a judge, may cost Georgia more than money.

The suggestion being made by legislators that the presiding judge should be impeached because of unpopular rulings is a serious threat to judicial independence and the rule of law.

The case is damaging the state’s new public defender system, which was given $4.5 million to provide lawyers to defend capital cases — a job that would cost over $12 million even without an extraordinary case like Nichols.

And with the case has come a return to old-time demagoguery in which legislators do not provide the public defender agency the money to do its job and then berate it for not being able to do it.

A committee of the Georgia House of Representatives is supposedly investigating spending for defending Nichols and considering recommending the impeachment of the presiding judge.

However, any responsible legislative investigation would not take place until after the trial and it would include the expenses of the prosecution as well as the defense. The district attorney is spending far more in prosecuting Nichols than his lawyers have spent defending him.

As Judge Hilton Fuller has observed in orders regarding funding for the defense, the cost of defending the case is influenced by what the prosecution spends on various experts, such as a doctor from Connecticut, the number of witnesses it plans to call (possibly as many as 400 in a case that could be proven with 10), and the scope of the investigation conducted by the FBI, the Georgia Bureau of Investigation and other law enforcement agencies.

It has been suggested by legislators and even one judge that the expenses for the defense of the case approved by Fuller are excessive. But their criticisms are uninformed. None of them know what expenses have been allowed and the legal reasons for allowing them.

The critics and the Fulton County District Attorney want to treat the Nichols case like any other case. However, it is an extraordinary case that requires lawyers with the time and ability to defend it and the payment of expenses necessary for it to be tried fairly.

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From OnlineAthens.com:

Former Georgia Chief Justice Norman Fletcher is right. As tempting as the Brian Nichols case has made it to consider scrapping a statewide network of public defenders created by the state a couple of years ago, it’s a temptation the state’s lawmakers should reject.

The Public Defenders Standards Council, funded with court fees earmarked specifically for indigent defense, is worth saving for the simple reason that it replaced a hodgepodge of indigent defense efforts funded at varying levels by county governments, a system that often meant poor defendants received inadequate legal representation.

The cost of defending Nichols, with a trial yet to begin, sits at almost $2 million. The money for this death-penalty case has gone to a number of lawyers preparing Nichols’ defense, one hired at $175 per hour and two others hired at $125 per hour. Other funds have gone to investigators and expert witnesses.

The defense being provided to Nichols is undeniably exorbitant, and is pushing the budget of the state Public Defender Standards Council beyond reasonable limits. Current estimates put the eventual cost of defending Nichols at $2.5 million.

Superior Court Senior Judge Hilton Fuller, who is presiding over the case, has take considerable flak in connection with his continued insistence that the Public Defender Standards Council fully cover the expenses for Nichols’ defense.

However, it’s only fair to note that the expenses thus far - and even the projected expenses of Nichols’ defense - aren’t necessarily out of line when considering the magnitude of the case that prosecutors are building against Nichols. Subpoenas have gone out to somewhere around 300 people.

Fuller, then, is being prudent - not fiscally speaking, of course, but judicially speaking - in terms of working to ensure that Nichols gets an adequate defense. In a death penalty case, both sides - not to mention the people of the state of Georgia, in whose name any eventual execution would be carried out - have a real stake in the question of whether the defendant gets a fair trial, even if ensuring that fairness comes with an admittedly staggering price tag.

As of now, it appears that the cost thus far of Nichols’ defense is about a half-million dollars shy of the estimated $2.5 million total cost. It also appears that Fuller, for completely understandable reasons - again, understandable from a judicial perspective, if not a fiscal perspective - isn’t going to back away from his insistence that an adequate defense be funded.

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From the Atlanta Journal-Constitution:

Lawyers for courthouse shooting suspect Brian Nichols withdrew their motion Wednesday to hold the state public defender council in contempt of court for failing to pay defense fees. The court filing apparently removes the need for a hearing Monday to determine whether the council should face sanctions.

Last month, the Georgia Public Defender Standards Council told Judge Hilton Fuller, who is presiding over the Nichols case, it could not comply with the judge’s order to continue funding Nichols’ defense. Nichols’ lawyers then asked Fuller to hold a hearing to determine whether the council should be found in contempt of court.

Fuller, who recently suspended jury selection because of insufficient funding, agreed. But the judge then recused himself from the contempt case, and Rockdale County Superior Court Judge Sidney Nation was appointed to consider the issue and set a hearing for Monday. But that hearing now appears unnecessary.

In the motion filed Wednesday, Nichols’ lawyers said they are satisfied that the council does not have the necessary funds to pay. The lawyers said they believe it is “unwise” to proceed forward against the council “because it is now manifestly clear that the council simply lacks available funds and is mired in a budgetary crisis due to reduced appropriations from the General Assembly.”

Nichols’ lawyers say in the motion there are other ways to address the “as-yet unresolved funding problem” and that those alternatives require further examination.

The motion added that the halting of jury selection remedied the immediate problem of proceeding with the case without sufficient funding.

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From The Associated Press:

Lawyers for a man accused of a deadly rampage that began at a courthouse urged a judge Monday to keep under seal parts of a filing from the state public defender’s office that they said could hurt Brian Nichols’ ability to get a fair trial.

The defense motion opposes a filing last week by lawyers for several news organizations, which said the court should immediately release the public defender office’s written response to a request to hold it in contempt for cutting off funding to Nichols’ defense.

Nichols’ attorneys said courts have held that releasing defense funding information is inherently prejudicial to the trial process. They also said that intense public and legislative interest in the case is already putting the trial in jeopardy.

Lawmakers have criticized the high cost of Nichols’ defense, which the state public defender’s office has said totaled $1.8 million as of the end of June. Problems funding Nichols’ defense have repeatedly delayed the murder trial, which is on hold indefinitely.

Last week, Georgia House Speaker Glenn Richardson’s office said a committee would review how the presiding Superior Court judge, Hilton Fuller, has handled the case — particularly his orders on paying for Nichols’ defense. Richardson’s office suggested the committee could consider whether to recommend impeaching Fuller.

“The intensity of public interest and comment … is unprecedented, and poses a clear and present danger to the fair interest of Mr. Nichols,” the defense motion says. “Indeed, recent comments suggesting impeachment of the trial judge by public officials and others threatens the independence of the judicial function in this difficult case …”

Last week’s motion on behalf of The Associated Press and several other news organizations said that no one had given a legal reason for sealing the Georgia Public Defender Standards Council’s response.

The defense said in its motion that although it would not object to releasing a redacted version of the response, unsealing the entire document “would insert undue risk of constitutional error in an already challenging constitutional environment.”

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From the Atlanta Journal-Constitution:

He sentenced a couple of school vandals to nine years in the juvenile lockup. He ordered a drug addict to live with a coffin. He gave Heritage High School shooter T.J. Solomon 40 years in prison.

Although he later reduced some of the sentences, one thing remains clear: Rockdale County Superior Court Judge Sidney Nation is no stranger to high-profile cases. Nor is he afraid to be creative in the courtroom.

Nation, 65, now brings that unique blend of compassion and controversy to a case that already has plenty of both: the still-on-hold trial of accused Fulton County Courthouse gunman Brian Nichols.

Amid mounting pressure from state legislators about how slow the case is moving, Fulton County Superior Court Judge Hilton Fuller recused himself this week from deciding whether he can hold the Georgia Public Defender Standards Council in contempt for refusing to pay more of the attorneys’ fees for Nichols’ defense team.

Nation was appointed to hear the motion. A hearing date has not been set.

Nation’s no-nonsense attitude made him a likely choice to hear the motion in the Nichols case, said Rockdale County District Attorney Richard Read, who has tried cases in Nation’s courtroom for 15 years.

“He’s tough, but fair,” Read said.

Perhaps most notable in the Fulton case, Read said, is that Nation carefully considers trial expenses.

Nation often weighs, both publicly and privately, “not only whether his rulings will bring justice, but what the cost to taxpayers is to get that justice,” the prosecutor said.

Nation, who has an industrial management degree from Georgia Tech and a law degree from the University of Georgia, was elected chief magistrate in Rockdale in 1984. He was elected a Superior Court judge in 1992 and became its chief in 1999.

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From The Associated Press:

A court should immediately release the state public defender’s written response to a request to hold it in contempt for cutting off funding to accused courthouse shooter Brian Nichols’ legal team, a media lawyer argued Friday.

Attorney Thomas Clyde said in a motion on behalf of The Associated Press and other news organizations that no one has given any legal reason for sealing the Georgia Public Defender Standards Council’s response.

Clyde also cited “the compelling public interest in this matter” and the “strong presumption of public access to all court records” in arguing for the release of the council’s response.

There was no immediate ruling on the motion.

The public defender’s office cut off funding to Nichols’ defense on July 1, saying there wasn’t enough money for other capital cases because of the $1.8 million already spent on Nichols’ case.

The council voted Oct. 18 to defy Superior Court Judge Hilton Fuller’s order to continue to provide funding for Nichols’ legal fees and expenses. Its written response addressing the issue was subsequently sealed.

Nichols’ lawyers have asked the court to consider holding the council in contempt, and a hearing is set for Nov. 5. Fuller recused himself from that hearing, which will be presided over by Rockdale County Superior Court Judge Sidney Nation. Fuller will still preside over the murder trial, which is on hold indefinitely because of defense funding problems.

The Legislature has not authorized more funding for the defender’s office. On Thursday House Speaker Glenn Richardson said he is creating a committee to review Fuller’s decisions in the Nichols case, particularly on defense funding issues.

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From the Atlanta Journal-Constitution:

Angered by trial delays and spiraling costs, Georgia House Speaker Glenn Richardson set up a special committee Thursday to investigate whether the judge in the Brian Nichols murder case has abused his office and should be impeached.

Richardson tapped state House Majority Whip Barry Fleming (R-Harlem), a lawyer, to head the panel looking into the actions of Senior Superior Court Judge Hilton Fuller in the Nichols case.

Fleming said the Georgia Constitution gives the Legislature the authority to impeach judges. He said his committee would do a thorough investigation before making recommendations to Richardson, but added, “There are serious questions about the poor handling of public funds that needs to be addressed.

“Judge Fuller and others have charged the General Assembly for what they say is a lack of funding for indigent defense, and yet there is apparently no sufficient accounting for close to $2 million already spent,” Fleming said. “How many more millions will be spent giving Brian Nichols a defense that no one, including the taxpayers, could afford for themselves?”

The speaker and top senators, including Senate President Pro Tem Eric Johnson (R-Savannah) and Senate Judiciary Chairman Preston Smith (R-Rome), have been strongly critical of Fuller’s handling of the trial.

Prosecutors are pushing for the death penalty for Nichols, who is accused of killing a judge, a court reporter, a deputy and a federal agent in a shooting rampage that began at the Fulton County Courthouse on March 11, 2005.

Fuller chuckled Thursday after hearing about efforts to impeach him. His only response was, “What can I say to something like that?”

Even Smith, one of Fuller’s strongest critics, thought talk of impeachment might be a bit much.

“I think we’ve got to do something, but it’s not settled in my mind that the answer is impeaching a judge,” Smith said.

Smith said Fuller “has been grossly abusive in his management of this trial process,” but he was not sure how much information Fleming’s committee would be able to get on the case before it has been concluded.

Fuller has sealed records on things like defense attorney expenditures that the committee would likely want to examine.

The trial has been delayed at least three times over funding for Nichols’ defense, which already has cost more than $1.2 million, and defense attorneys want more.

The state’s public defender office has said it has no more money to put into the case. Fuller has threatened to hold the Georgia Public Defender Standards Council in contempt for refusing to pay more of the defense lawyer’s legal fees.

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New public defender blog posts since Friday morning:

a public defender
A Public Defender’s Life in Alaska
A Year in the Life
Audacity
blind insight
Capital Defense Weekly
Curia Advisari Vult
the Dream Antilles
Fifth Circuit Blog
Go West Young Tex
I Defend the Accused
Indefensible
Infinity Ranch
My Boring Life
Night Court
Ninth Circuit Blog
Petition for Review
Rabid Sanity
Scoplaw
Swan Lake Samba Girl
The Rural Bus Route
Woman in Black

From the Atlanta Journal-Constitution:

The state public defender council on Thursday said it cannot abide by a judge’s order to provide more money to defend accused courthouse killer Brian Nichols while also funding the defense of thousands of other indigent cases statewide.

The council, by unanimously passing a resolution stating its position, put itself on a collision course with a contempt of court hearing that had been scheduled for Monday.

But in another development Thursday, Judge Hilton Fuller said he will recuse himself from that hearing, which means it will be delayed until another judge is found. The recusal does not affect Fuller’s role in presiding over the Nichols trial.

Fuller did not cite a reason, but he could be called as a witness in the contempt hearing because of his discussions with Nichols lawyers and council officials over the funding issue.

It’s the latest snarl in the case of Nichols, charged in the 2005 murders of a judge, a court reporter and two other people when he escaped from custody at the Fulton County courthouse.

Fuller on Monday began jury selection, but disputes over further funding for the defense team immediately slowed the proceedings. On Wednesday Fuller halted jury selection after only a few potential panelists had been questioned.

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From the Associated Press:

The judge presiding over the murder trial of a man charged with fatally shooting four people in a 2005 rampage suspended jury selection indefinitely Wednesday because the defense hasn’t been adequately funded.

“I’m interested in getting this case tried … in a way the constitution requires,” Superior Court Judge Hilton Fuller said.

Jury selection had resumed Monday after several previous delays due to defense funding issues. Fuller indicated he would decide later whether to release the 1,100 prospective jurors in the current pool from duty and create a new one.

The trial has been continuously bogged down in friction with the state public defender’s office over fees and expenses for attorneys representing the indigent Brian Nichols.

Nichols is charged with escaping from custody at a downtown Atlanta courthouse, where he was on trial for rape. He allegedly killed the judge presiding over the rape trial along with a court reporter, a sheriff’s deputy who chased him outside and a federal agent he encountered at a home a few miles away.

Prosecutors say he took a woman hostage the next day in her suburban Atlanta home, then surrendered. Prosecutors plan to seek the death penalty if Nichols is convicted.

In requesting suspension of jury selection, the defense said in court documents Wednesday that it can’t continue to subsidize costs with “no realistic end in sight.”

Fuller has ordered the Georgia Public Defender Standards Council to appear at a contempt hearing Monday to explain itself. The council is responsible for Nichols’ defense costs.

But Nichols’ lawyers said in their motion that jury selection needs to end now. They said they have not been able to prepare for the trial without funding.

The cash-strapped council has said that because of the amount of money already spent on Nichols’ defense — $1.8 million as of the end of June — there isn’t enough money for other cases. The Legislature has refused to step in, and Fulton County has resisted helping pay for Nichols’ defense costs.

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If you’re interested in the Georgia fight, ex-public defender Maggie has been following it at her blog Of Counsel and has great coverage.

My apologies for not having anything up yesterday. It was a busy day. Here are the new public defender blog posts since Wednesday morning:

A Blues Like Down Home
a public defender
A Public Defender’s Life in Alaska
Abolish the Death Penalty
Accident Prone
Arbitrary and Capricious
Audacity
the Bardd Before the Bar
Capital Defense Weekly
Curia Advisari Vult
the Dream Antilles
Fifth Circuit Blog
Gideon’s Guardians
Go West Young Tex
the imbroglio
Indefensible
Infinity Ranch
Ipse Dixit
Kansas Defenders
La Peine Forte et Dure
lawbabeak
Life A-D
Petition for Review
Rabid Sanity
Second Circuit Blog
Scoplaw
Swan Lake Samba Girl
The Rural Bus Route
The Saucy Vixen on Life
Woman in Black

From AccessNorthGa:

A Superior Court judge said Tuesday he will consider whether to hold the state public defender office in contempt for not complying with previous orders to provide funding for accused courthouse shooter Brian Nichols’ defense.

Judge Hilton Fuller said he will ask a representative of the Georgia Public Defender Standards Council to appear at a hearing Monday. He said jury selection in Nichols’ murder trial will continue this week, but his patience is wearing thin.

Fuller had said Monday he might order an indefinite delay in the trial if the council does not come up with the funding soon.

Mack Crawford, director of council, did not immediately return a call for comment Tuesday.

The contempt hearing was ordered after a defense motion Tuesday.

“The court system’s authority is being challenged here,” defense lawyer Robert McGlasson told Fuller. McGlasson said the court must act because the council is in violation of Fuller’s previous orders.

Fuller said he agrees a hearing on the issue is needed.

Attorneys have said the defense team hasn’t been paid since July 1. The council said the defense had cost it $1.8 million by the end of June. Fuller insisted Tuesday the figure is closer to $1.2 million. The council has publicly stood by its figure.

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From Access North GA:

As jury selection resumed Monday in the murder trial of accused courthouse shooter Brian Nichols, the presiding judge warned there is “no chance” a guilty verdict would survive appeal if the defendant doesn’t get enough money to put on his case.

Superior Court Judge Hilton Fuller allowed the process to go forward. The first panel of roughly 20 prospective jurors from a pool of about 1,100 was questioned by Fuller and lawyers in the case later Monday. Of those, two prospective jurors were questioned individually.

Some of the answers suggested it may be difficult for an impartial jury to be seated in the high-profile case.

But before the potential jurors even entered the courtroom, Fuller said time is short for the Georgia Public Defender Standards Council, which has been footing Nichols’ legal tab because he is indigent, to change its position and give Nichols’ lawyers the money they need to interview witnesses and bring experts to court.

“I’m not going to preside over a case that has major constitutional issues from the get-go,” Fuller said.

He indicated he could delay the trial indefinitely at some point in the future until Nichols’ defense funding comes through. That possibility is growing more likely by the day.

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