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Last updated 12:48AM ET
March 3, 2021
Alabama
Alabama
Georgia Case Raises Questions about Adequate Defense
(2007-09-22)
(APR - Alabama Public Radio ) - The defense funding crisis that has repeatedly delayed the murder trial of accused courthouse gunman Brian Nichols has put the spotlight on the statewide program that pays for lawyers for Georgia's poor.

At issue is the effectiveness of public defenders who often must mount a case with limited state funds against prosecutors who can turn to other law enforcement agencies for help. The case also raises questions over how much the state is obligated to pay to provide an indigent person a defense.

Legal experts say and courts have required that defendants are entitled to an effective defense and a fair trial. But, experts say, to achieve that doesn't necessarily mean both sides have to be on equal footing when it comes to funding.

Nichols' lawyers are essentially testing that argument. His attorneys have so far billed more than $1.8 million for fees and expenses, and they are seeking more money to complete a trial that will feature a prosecution witness list of some 400 names and reams of evidence that includes hundreds of hours of the defendant's phone conversations while in jail.

"I don't think if the state theoretically spends $100,000, the defense needs to spend $100,000 to give the defendant an effective defense," said Alan Cook, director of the prosecutorial clinic at the University of Georgia School of Law.

Cook said the key question is whether the defense has enough resources to be prepared to meet the evidence presented by prosecutors, and often that is not easy to quantify.

There is no set amount of money that poor defendants are entitled to receive for their defense beyond the maximum hourly fees their lawyers can be paid, and because of funding limits, they can't get a blank check either, some observers have argued.

"This is a somewhat unique circumstance with the jailhouse conversations," Cook said. "Personally, I think the state has brought a lot of this on itself by using these jailhouse conversations or attempting to use them I guess in aggravation of punishment."

Steve Sadow, an Atlanta criminal defense attorney not involved in the Nichols case, said there's no rigid standard for what constitutes an adequate or effective defense in Georgia. But there are plenty of cases where the government outspends the defense by wide margins, he said.

"In a perfect world, no, it's not fair," Sadow said. "Is it reality and, therefore, deemed fairness in the judicial system? Yes."

Authorities say Nichols was being escorted to a courtroom in the Fulton County Courthouse in downtown Atlanta for the continuation of a retrial in a rape case when he beat a deputy and stole her gun on March 11, 2005.

He is accused of killing the judge presiding over the rape trial, a court reporter chronicling the proceeding, 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.

At last count, Nichols' defense has cost the Georgia Public Defender Standards Council more than $1.8 million, according to the council. The cost has previously been projected by the council to reach $2.4 million by the end of trial a figure that would be six times what the average death penalty case in Georgia costs through the initial appeal after a conviction.

Nichols' defense is being paid for by the state agency because he is indigent. The head of the agency, Mack Crawford, declined to speak about funding issues in the Nichols case, citing a request from the judge presiding over the murder trial.

District Attorney Paul Howard declined through a spokeswoman to say how much his office has spent on prosecuting Nichols. His office also denied an open records request from The Associated Press seeking the information.

Few people disagree that the Nichols case is extraordinary and, because of the seemingly overwhelming case prosecutors have, extra resources are needed for the defense. The question is how much is enough, and if the public defender's office can't afford to pay anymore, what does that mean for Nichols' defense?

State legislators have wrestled with that question as they have faced requests from the public defender's office for supplemental funding for the Nichols case and other death penalty cases across Georgia.

State Sen. Preston Smith, R-Rome, a lawyer who chairs the state Senate Judiciary Committee, said it is up to the judge and lawyers trying each case to determine what is adequate for a defense. But he said the Nichols case is setting a "dangerous precedent" that could imperil the judiciary system moving forward.

"One problem that we are considering is a structural one. People that are hired, whose sole duty is to advocate on behalf of their own client, under the structure they don't have to balance their own checkbooks," Smith said. "They just have to submit the bills afterward. We're being asked to go on blind faith that the system is working properly."

He said he is worried that some activists opposed to the death penalty are trying to make it impossible to seek capital punishment by boosting the costs to prohibitive levels.

"We are not the federal government," Smith said. "We can't print money. Money we spend on this has to be taken from somewhere else, education or Medicaid."

The bickering in the Legislature has made some wonder whether any remedy will be found to cure the funding problems at the state public defender's office. Smith, for one, said some lawmakers wonder if they are "being taken advantage of" for funding the system.

"Ultimately this case will probably be the poster boy for whether or not this experiment in good faith works or not," he said.

The murder trial is set to resume Oct. 1, after several postponements.

Nichols' lawyers have said they have been told by the state public defender's office that no guarantee can be made that they will receive any further compensation for themselves or funds to pay their expenses.

The lawyers have suggested that the funding issue could give Nichols, who plans to use a mental illness defense at trial, a chance to appeal based on ineffective counsel if he is convicted.

Prosecutors have balked at any suggestion of unfairness, citing the amount Nichols' lawyers have been given for the defense so far.

Sadow, the Atlanta lawyer, said he believes Nichols' defense team is raising the adequate defense issue to attempt to block prosecutors' effort to seek the death penalty against Nichols.

___

Associated Press Writer Shannon McCaffrey contributed to this report from Atlanta.


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