redtape.JPGBefore today, I had never seen an Order styled “Court’s Analysis of Indigent Defense System.” Judge J. David Roper of Richmond County, Georgia entered this document into the record on the same day that he entered a consent order involving a suit between the Southern Center for Human Rights and the Georgia Public Defender Standards Council. By order, conflict defenders can only carry a caseload of 125 felony cases or 300 misdemeanors at a time, and requires the local Public Defender to notify the central office within 24 hours of realizing that there is a conflict.

The interesting thing about the case is the apparently gratuitous memorandum filed contemporaneously with the Order. The Judge entered findings of fact that the problems with indigent defense in Georgia are systemic and are much bigger than budgetary. For instance, the director of the standards council has no supervisory authority over Circuit Public Defenders. When the director was asked who was responsible for circuit public defenders, the director said “Judge, I really don’t know.”

The Council is in the executive branch, the same branch as the police and the prosecutor. The council’s director is appointed by and serves at the pleaseure of the Governor. The Director lacks the ability to remove the Circuit Public Defender, but the Circuit Defender may be removed with or without cause. 

For conflict cases, the Circuit Public Defender must set in place a procedure for dealing with conflicts (cases where a single lawyer cannot represent multiple parties because they have an incentive to blame each other). However, when the Circuit Public Defender declares a conflict, the Standards Council pays for the representation — essentially a financial incentive to find conflicts.

Taking these facts and others into account, the judge found that “the present system is fraught with a lack of accountability, especially at the circuit level.” He also wrote that the system is broken and describes it as “a mega-bureacracy adrift with no rudder.” 

It is good to see that calls for reform in the system are coming from the ground up. The Supreme Court has punted at nearly every opportunity to weigh in. Perhaps the local judges on the front lines are more aware of how it is falling apart and appear to be the most willing to do something about it. It’s enough to make a person cynical about the appellate process.