ATLANTA (WALB) - The Supreme Court of Georgia has reversed an Irwin County court’s ruling that the Georgia Indigent Defense Act provides no means for pro bono counsel representing Ryan Alexander Duke to obtain state funds for defense experts and an investigator.
“Contrary to the trial court’s conclusion, the Indigent Defense Act allows an indigent defendant to obtain such ancillary defense services through a contract between pro bono counsel and either the Georgia Public Defender Council or the appropriate circuit public defender,” Chief Justice Harold Melton writes for the majority in Monday’s 8-1 decision.
The court said at issue in this pre-trial appeal related to the 2005 death of Tara Grinstead, is whether Georgia’s Indigent Defense Act of 2003 authorizes public funding to pay for defense experts and investigators when a defendant is represented by private attorneys who are providing legal services at no charge, according to the state’s highest court.
The Tara Grinstead Case:
Grinstead, a high school teacher in Ocilla, was first reported missing in October 2005. The investigation into her disappearance spanned more than a decade and ended with Duke’s arrest. In April 2017, Duke was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with Grinstead’s death.
Court background on the case:
Although Duke initially was represented by the Tifton Judicial Circuit Public Defender, in August 2018, private attorneys – Ashleigh Merchant, John Merchant, III, and John Gibbs, III – took over his case “pro bono.” Pro bono means without charging for their services.
Prior to Duke’s trial, they filed a number of motions.
One was a motion for state funding to pay for an investigator and defense experts. The trial court denied the motion, ruling that the Indigent Defense Act no longer required local governments to provide funding for such requests, and while Duke “has a constitutional right to be represented by private, pro bono counsel if he so chooses, he is not simultaneously constitutionally entitled to experts and investigators funded by the State,” according to the Georgia Supreme Court.
Duke’s attorneys then attempted to appeal the order to the Georgia Supreme Court under the procedures mandated for an interlocutory, or pre-trial, appeal. The trial court, however, did not grant Duke’s “certificate of immediate review,” one of the required steps before filing an interlocutory appeal. Duke’s attorneys nevertheless applied to the state Supreme Court for an interlocutory appeal, relying on the Court’s 2000 decision in Waldrip v. Head, which stated the Georgia Supreme Court could bypass the statutory requirement in cases that involve “an issue of great concern, gravity, and importance to the public.”
In June 2019, the high court dismissed Duke’s application to appeal the pre-trial decision by the Irwin County court, stating that it lacked jurisdiction and did not have the authority to review Duke’s case because he had failed to first obtain a certificate of immediate review as required by Georgia Code §5-6-34 (b).
The Supreme Court also overruled its Waldrip decision as a “blatant judicial usurpation of the legislative function.” After the case was remanded to the Irwin County court, Duke’s attorneys filed a renewed motion for state funding for defense experts and investigator.
In the motion, they asked that the trial court again find Duke indigent. They also requested that the trial court grant state funding for experts and an investigator, or declare the Indigent Defense Act unconstitutional.
In January 2020, the trial court denied the motion, finding that the Indigent Defense Act “does not contemplate a method whereby an indigent criminal defendant represented by private or pro bono counsel could obtain state funds for ancillary defense services. Thus, an indigent defendant is entitled to state-funded ancillary services only if represented by a public defender.”
The trial court also concluded that the Indigent Defense Act didn’t violate Duke’s constitutional rights to counsel and to due process, according to the court.
However, the Georgia Supreme Court said the trial court granted a certificate of immediate review.
Duke again filed an application for interlocutory appeal, and the Georgia Supreme Court granted it to answer this question: “Did the trial court err in holding that an indigent defendant in a criminal case who is represented by private, pro bono counsel does not have a constitutional right or a statutory right under the Indigent Defense Act…to state-funded experts and investigators?”
Here’s what the Georgia Supreme Court decided on Monday:
In Monday’s majority opinion, “we conclude that the trial court’s ruling that pro bono counsel have no means by which to access state-funded ancillary services under the Indigent Defense Act is erroneous.”
The Georgia Supreme Court said the act “(indicates) that the Georgia Public Defender Council and its director will support attorneys who represent indigent defendants but are not in a circuit public defender office.”
“The Indigent Defense Act also allows the Georgia Public Defender Council and circuit public defenders to contract with outside counsel and then provide ancillary service funding to indigent defendants represented by such attorneys,” the opinion continues.
“We note that although Duke’s pro bono counsel applied for funding from the Georgia Public Defender Council, the record does not indicate that his counsel has tried to contract for ancillary services with either the Georgia Public Defender Council or the Tifton Judicial Circuit Public Defender, as is authorized under the Indigent Defense Act. Because the contractual mechanism is available to Duke, there is no need at this point to address the difficult constitutional questions that would arise if Duke is unable to obtain needed ancillary services in this case. Because the trial court also did not have to decide those questions, we vacate that portion of the trial court’s order. And we remand the case to allow Duke to seek a contract with the Georgia Public Defender Council or the circuit public defender that would provide him access to state-funded ancillary services.”
In a dissent, Justice Charles Bethel wrote: “Where, as here, an indigent defendant has elected to be represented by private counsel, the State may – but is not required to – pursue a contractual relationship with the defendant’s chosen counsel to provide public resources to aid the defense. And Georgia law allows circuit public defenders and the Georgia Public Defender Council to pursue such arrangements with outside attorneys and other professionals not employed by their agencies, including attorneys who otherwise engage in private law practice. However, other than the avoidance of a legal conflict of interest, neither constitutional constraints nor state law compels those agencies to do so. Where a defendant has eschewed legal representation by the circuit public defender or the Georgia Public Defender Council, those agencies do not have any constitutional or statutory obligation to provide funding for ancillary defense services to the defendant, even when he is indigent.”
In cases where an indigent defendant chooses private counsel, to use public resources for the defense, “such counsel must contract in some way with the relevant indigent defense agency on terms agreeable to the agency,” the dissent says. “Once subject to such a contract, the private counsel is essentially converted to a public defender for the purposes of the case covered by the contract. Absent such arrangement, public funds are simply not available to an indigent defendant in Georgia who is represented by private counsel of his choice.”
In conclusion, Bethel writes that he sees “no constitutional requirement compelling those agencies to agree to a contract with Duke’s private counsel. And absent such contract, the agencies are not compelled to provide Duke with any funding for ancillary services so long as he continues to be represented by private counsel unaffiliated with a state indigent defense agency. For these reasons, I would affirm the judgment of the trial court. Thus I respectfully dissent.”
In a concurrence, Justice Nels Peterson writes that he agrees with the majority opinion but writes separately “to make explicit something the majority leaves implicit: The Georgia Public Defender Council would be most unwise to decline to contract with Duke’s four counsel on remand.”
Peterson writes this is because “Duke may very well have a constitutional right to state-funded experts.”
“Thankfully, we need not answer definitely today the question of whether Duke’s pro bono representation means he is not constitutionally entitled to publicly funded expert defense services,” the concurrence says. “But it may well be that Duke is correct that the nature of his relationship with his counsel does not preclude his access to such services. Now that the Georgia Public Defender Council understands that it has the authority to contract with Duke’s counsel and thereby provide funding for experts necessary to Duke’s case, the Georgia Public Defender Council would do well to do so, lest the already-considerable delays in bringing this case to trial grow even longer.”