Indigent defendants, Bright said, have the same Sixth Amendment right to continuity of counsel once the attorney-client relationship is established as do those defendants with the means to hire lawyers. That right, he and his colleagues contend, was violated in the Weis case, when two appointed attorneys were removed because the state ran out of money to pay them. "I think we have the complete breakdown in this case," Bright said. "The legislature just didn't put enough money into the system and it ran out of gas."
The case is not about a breakdown in the system, countered Assistant District Attorney Robert Smith of Fayetteville, Ga. Weis is responsible for most of the delay, he said, and the Georgia Supreme Court in March correctly rejected his constitutional claims. "This case is about bringing Catherine King's killer to justice and giving the people of Pike County the opportunity to hear it," he said. "That's what this case is about."
Weis' petition for review comes at a time when an increasing number of legal challenges are being made to underfunded and overburdened state indigent defense systems. Several lawsuits are pending in Georgia, and courts in New York and Michigan recently have given the green light to class actions against those state systems for alleged failures to provide adequate legal representation.
Georgia's problems are long-standing. Twenty years ago, The National Law Journal, in a six-month investigation of the defense of capital murder defendants in six Southern states, including Georgia, found poorly trained and underpaid lawyers in a hodgepodge of standardless systems with actual disincentives to effective representation.
Georgia, however, seemed to turn a corner in 2003 when the governor signed into law the Georgia Indigent Defense Act. The law created a statewide network of public defender offices and an Office of Georgia Capital Defender to represent death penalty cases.
But state funding has never kept pace with the need, triggering the recent round of lawsuits. "All of the promise we had from this new public defender system is just evaporating," Bright said.
A PUBLIC DEFENSE
Weis entered the system in February 2006 when he was charged with the felony murder of King. He has been confined in a series of county jails since then.
His first lawyer was a local public defender who handled the arraignment but did little else on the case, Bright said. After the state announced its intent to seek the death penalty, the Georgia Public Defender Standards Council, which oversees the state system, asked Robert Citronberg and Thomas West, well-known Atlanta capital defense lawyers, to take Weis' case.
For the next six months, Citronberg and West worked the case, filing numerous motions and traveling to Weis' native West Virginia to gather background and interviews with people who knew him. "We started out at $125 per hour and when the [funding] crisis hit, it was cut to $95," West said. "At that point, I know some lawyers who got out of their cases. It was a rare situation where you had a total lack of payment and we were always told this would be remedied down the line. In that setting, I felt a duty to continue on my cases. My position is these cases would be going forward in some way by appointed local counsel, which would be a disaster."
RUNNING OUT OF MONEY
The two lawyers had budgeted roughly $300,000 for Weis' case, an amount subsequently approved by the state Public Defender Standards Council.
In mid-March 2007, the Council told the lawyers that it could not pay them after March 31. The lawyers filed a motion for a continuance in the case because they could not hire an investigator or a mitigation specialist.
In a November 2007 hearing, the Council director informed the trial judge that the state didn't have money for Weis' representation and might not have funds until 2009. West told the judge he and Citronberg can proceed with the case but, without adequate funds, Weis later may have a claim of ineffective assistance of counsel. Fayette County District Attorney Scott Ballard suggested replacing the lawyers and named three public defenders as substitutes, according to hearing transcript. Judge Johnnie Caldwell agreed.
"This court is going to do something it has never done, which I believe it has the inherent authority to do under the Constitution of this State, as well as under the rules of the Uniformed Rules of the Superior Court, and that is in this instance I am going to remove defense counsel from this case," said Caldwell, who resigned last month amid an investigation into allegations he sexually harassed a female divorce lawyer.
In December 2007, the two public defenders picked by the court began filing motions to withdraw, saying they had been told they would receive no state funds for investigators or experts. One said she was not certified to handle capital cases and was already lead counsel in 222 cases, 103 of which were felonies. The other public defender had 91 felonies and was heading a four-county public defender office with 12 full-time lawyers.
With the promise of a special appropriation to fund capital cases, the parties and the court agreed in April 2008 to reinstate West and Citronberg, and the Council approved $255,000 in funding. But the money was never made available.
West and Citronberg were not reinstated by the court until February 2009 -- 15 months after being dismissed.
In June 2009, the trial judge set a trial date for Aug. 3. Weis, still without funds, moved to dismiss the indictment, alleging right-to-counsel and speedy-trial violations. In July, the state Council agreed to provide $75,000 for defense counsel and $40,000 for investigative costs. The judge rejected Weis' motion to dismiss, and appeals began.
In March, the Georgia Supreme Court ruled, 4-3, that delay was primarily attributable to Weis, not the state. Weis, the majority said, did not have a right to his choice of counsel and had refused to cooperate with his public defenders.
In the U.S. Supreme Court, Bright argues this is not a counsel-of-choice issue but an issue of continuity of counsel. Only Georgia, Louisiana and two federal circuits -- the 2nd and 6th -- refuse to recognize that, once the attorney-client bond of trust and confidence has been established, counsel cannot be removed absent some extreme circumstances. "There's a whole string of [lower court] cases saying, unless the lawyer is just disabled or engages in contemptuous behavior, you can't sever the relationship," Bright said. "This wasn't about Weis' seeking preference of counsel but opposing counsel moving to remove counsel. I think the Court will be offended by that."
Criminal law scholar Joshua Dressler of Ohio State University Michael E. Moritz College of Law and ethics scholar Monroe Freedman of Hofstra University School of Law said Bright's distinction is an important and valid one. Freedman is more emphatic, saying, "It is so clear this was a violation of fundamental rights that it should be the easiest of cases and should never have occurred in the first place."
Harder to convince the justices will be Bright's argument that there was a systemic breakdown of the state public defender system. In that analysis, the justices weigh a series of factors set out in their 1973 decisionBarker v. Wingo. Just last term, in Vermont v. Brillon, they rejected the argument in a speedy-trial case where the defendant went through six lawyers, firing one and threatening to kill another.
But the Weis case is not the Brillon case, said Dressler and Freedman. And the Court's possible reluctance to take on the Weis issue probably would have more to do with the consequences of finding a breakdown. "I can imagine this Court taking the view that, with county and state budget crises, they don't want to jump in," Dressler said. "To me that would be shameful if it's the reason for not taking it on."
Freedman agreed, adding, "The fact this could open doors to fundamental defects in the entire system of indigent defense is not a reason to ignore that this is going on."
Smith, the prosecutor who argued the Weis case in the state supreme court, said he did not know whether his office or the state attorney general would be responding to Bright's petition, but he insisted Weis' counsel were responsible for the delay in the case.
Smith said Weis' lawyers filed nine motions for continuances, motions to recuse the trial judge and sued the judge directly. "I agree the defendant played a role in the delay," he said, "and the Georgia Supreme Court apportioned the nature of the delay correctly."