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Justice on the Cheap | The Nation

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Justice on the Cheap

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One of the few people in Greene County who told me they were innocent was Julian Daniels, 21, a smallish man who works on a quail plantation hanging birds by their legs on a conveyer belt so they can be shocked and have their heads sawed off. He said he had physical proof that the drugs found in the back of his friend's car weren't his, but after calling Surrency three times and receiving no calls back, he resigned himself to paying a $925 fine during the two years he's on probation. "I don't got no choice," he said.

About the Author

Amy Bach
Amy Bach is the author of Ordinary Injustice: How America Holds Court.

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Indigent defense is again making the front pages, after George W. Bush's death penalty record in Texas became an issue in his presidential campaign. Studies proved inmates had been put to death in Texas despite representation by disbarred, suspended or incompetent attorneys. Still, Bush said he had no misgivings about the 145 people executed under his watch. This, together with new DNA technology that has freed eighty-seven inmates on death row, has raised widespread alarm. "I have yet to see a death case, among the dozens coming to the Supreme Court on eve of execution petitions, in which the defendant was well represented at trial," Supreme Court Justice Ruth Bader Ginsburg said when she spoke at the University of the District of Columbia on April 9.

As a result of such scrutiny, Texas, with its former governor now ensconced in the Oval Office and its reputation for toughness secure, has lately conceded some ground. On April 10 the Texas State Senate passed the Texas Fair Defense Act, a bill that for the first time would provide state financing to hire lawyers for poor defendants and set standards for those lawyers. However, according to Bright, "there probably won't be a statewide public defender [system] in Texas in 2050." Experts say it's unlikely that Texas judges will give up control of their courtrooms. Now, each judge can maintain a fiefdom through the power to appoint lawyers. In a recent survey by the Texas State Bar, 30 percent of judges said they knew colleagues who assigned counsel because they contributed to their judicial election campaigns. Others confessed to picking lawyers they knew would move dockets along and not give vigorous representation. In 1999 a coalition of judges pressured Governor Bush into vetoing another indigent defense bill, already passed by both houses. Says Bright: "I wish I could say that there is a political movement to change things. But what happens is that things get so bad in some places, like Texas, where so much attention was focused on lawyers sleeping during capital trials, etc., that it becomes enough of an embarrassment to the bar and the judges that they must do something."

Indeed, the outlook nationally is not encouraging. This April Bush announced he would nominate Richard Nedelkoff for director of the Bureau of Justice Assistance, an arm of the Justice Department that worked on indigent defense issues under Attorney General Janet Reno. Nedelkoff is currently executive director of the Texas governor's Criminal Justice Division, an agency that disburses more than $140 million annually in state and federal funds for criminal justice services. Under Nedelkoff, none of that money has gone to indigent defense. In addition, the American Council of Chief Defenders has sent word to Attorney General John Ashcroft that it would like to continue the periodic meetings it had with Reno, but it has heard nothing in return.

In Georgia, as elsewhere, entrenched interests resist any effort to raise or enforce minimum standards for legal assistance. Although in November the Georgia Supreme Court created a blue ribbon commission to study indigent defense, its investigations have been halfhearted, and it has yet to make a proposal to the legislature. In 1979 the state instituted the Georgia Indigent Defense Council, which recommends guidelines for counties receiving state funds. However, implementing the standards has been difficult. "When we try and suggest that the guidelines are real we get politicians saying they'll undo us," says Michael Shapiro, executive director of the council. Shapiro says that the $6.5 million the state provides to enforce guidelines is too meager to have any effect on counties already spending $40.6 million on counsel for the poor. By comparison, Indiana has reformed about half of its ninety-two counties by reimbursing them for 40 percent of costs for felony cases (and 50 percent in death penalty cases) as long as counties provide trained lawyers with adequate resources to mount a proper defense.

In some towns, defendants seem to have given up on the idea that a lawyer could help. Under Coweta County's contract system in Newnan, Georgia, 218 people--over one-third of indigent defendants--represented themselves from January 1999 to May 2000, according to statistics from the Southern Center for Human Rights. Nationally, only 1 percent of felony defendants represented themselves in the nation's seventy-five largest counties in 1992.

In Georgia counties that employ court-appointed lawyers, things are sometimes not much better. At criminal court in East Point, a working-class suburb of Atlanta, judges can appoint lawyers, but they almost never do. During one recent afternoon of preliminary hearings--which are supposed to determine whether there is probable cause to keep a defendant in jail before indictment--a harried judge speed-read defendants their rights (including their right to an attorney): "eachofyouhavearightagainstselfincriminationtoconfrontawitnesstoberepresented- byanattorneyandtherearesomeoffensesyoucangetafreeattorney." One by one, African-American men and women, wearing orange prison garb for traffic violations, bad checks, assault, drug possession, robbery, driving under the influence and capital murder, agreed to proceed without a lawyer, thus waiving their Sixth Amendment rights. "You would have to be the most self-assured, savvy person on the planet to understand that after the judge reads that jumble of rights so quickly you need to say, 'Hey, I want a lawyer,'" said Marion Chartoff, a lawyer with the Southern Center for Human Rights. "Nobody knows that they have to do that."

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