Lawsuit Filed to Secure Lawyers for Poor People Seeking Appeals

15th December, 2009
Southern Center for Human Rights

ATLANTA, GEORGIA – Today, a team of lawyers have filed a lawsuit against the State of Georgia for its failure to provide counsel for nearly 200 convicted indigent defendants who do not have lawyers to represent them in their appeals.  Lawyers from Bondurant, Mixson and Elmore, P.C.; Garland, Samuel and Loeb, P.C.; Moraitakis, Kushel, and Pearson, LLP; Martin Brothers, P.C.; and the Southern Center for Human Rights (SCHR) filed Flournoy, et al v. State of Georgia, et al in the Superior Court of Fulton County and are suing the Chairman, Director, and staff members of the Georgia Public Defenders Standards Council (GPDSC) as well the Governor and the State Treasurer.

The Constitution and state law require that indigent defendants in Georgia be provided with counsel at every critical stage of a criminal prosecution, including the motion for new trial and direct appeal.  “Appeals are a critical safeguard to ensure that convictions are constitutional and the right to counsel is no less important on appeal than it is at trial.  It is inexcusable for some of our plaintiffs to have been incarcerated for years without counsel when the law could not be clearer,” said Lauren Sudeall Lucas, staff attorney at SCHR.  “The Constitution has to be a line item in the State’s budget.”

Although the State carries the final constitutional obligation, the Appellate Division of the GPDSC is delegated with providing conflict-free counsel to poor people with convictions who are seeking to pursue motions for new trial and their first direct appeal. As a result of severe budget cuts in the prior two years, the Appellate Division is now staffed by only 2 full-time and 1 part-time staff attorneys.  The funding available for contracted private appellate counsel has also been cut, from $336,000 in Fiscal Year 2009 to $160,000 for Fiscal Year 2010.  The Division currently has a caseload of over 475 cases.

In December of 2008, the Appellate Division had been assigned 249 cases, and was unable to assign 75 persons appellate lawyers.  The Appellate Division Director, Jimmonique Rodgers, raised an alarm with supervising officials, writing in a memo to her GPDSC superiors that the Appellate Division had an “impossible case load” and that as a result, it had “passed the crisis point.”  Its incapacity to handle its caseload has led to a critical mass of unrepresented people throughout Georgia. 

The individuals bringing forth this challenge are among nearly 200 people who have been convicted of offenses in Georgia carrying a term of incarceration who are without legal representation to assist with their appeals.  Two of the six  named plaintiffs have been incarcerated for more than three years and do not currently have counsel to represent them in their motion for new trial proceedings;  three others have been denied counsel for at least a year.  The sixth has been without appellate counsel for almost ten months and has been informed by GPDSC that he is number 105 on the Council’s backlog list; the GPDSC is unable to even estimate when he is likely to be appointed an attorney.  As of November 23, 2009, there were 187 people without representation, fifty-percent of whom have waited to be appointed appellate counsel for over a year since their convictions and sentencings.

“This case shows that at its current funding levels, the GPDSC is incapable of meeting its obligations to provide counsel to those accused and convicted of crimes.  If the State does not meet its obligation to fund indigent defense, then the courts will intervene and require it to do so, “ states Michael A Caplan, representing the Plaintiffs for Bondurant, Mixson & Elmore, LLP. “When our system of criminal justice does not itself comply with the rule of law, its integrity is fairly questioned.  That integrity is what is at issue in this case.”

The named defendants in Flournoy v. State  include: Governor Sonny Perdue, State Treasurer W. Daniel Ebersole, GPDSC Director Mack Crawford, GPDSC Chairman Michael L. Berg, GPDSC Director of Conflicts Jim Stokes and GPDSC Appellate Division Director Jimmonique Rodgers. 

This is SCHR’s fourth round of litigation in response to Georgia’s current indigent defense crisis. In June 2008, Director Crawford attempted to close the Metro Conflict Defender office; however, SCHR stopped the closure of the well-regarded office and enforced the constitutional rights of people facing criminal charges without an attorney.  In April 2009, SCHR filed a lawsuit in the Northern Judicial Circuit where over 300 people facing criminal charges had no lawyer because the state failed to provide enough lawyers to represent defendants in conflict cases. This case is ongoing. And on November 10, 2009, SCHR presented arguments to the Georgia Supreme Court on behalf of Jamie Weis, a mentally ill man who was denied funding for legal representation to represent him in his capital case for over two years.  Similar failures to fund representation for periods of two or three years have occurred in other cases in which people face the death penalty.

For more information, please contact Sara Totonchi at 404/688-1202 or [email protected]

Atlanta Journal Constitution: State inmates waiting years for lawyers to file their appeals
Associated Press : Ga. inmates say state fails to assign attorneys
Fulton County Daily Report: Indigent Inmates sue over backlog
Atlanta Unfiltered
: Lawyers sue state over gaps in indigent defense
Georgia Public Broadcasting: State slapped with lawsuit over indigent defense
Blog for Democracy: Georgia fails to hear Gideon's trumpet
Atlanta Progressive News
: Suit against Georgia cites lack of indigent defense