Chasing Gideon

by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)

  It looked good on paper—and for a brief moment, the legal community around the country lauded Georgia’s reforms—but it had one major flaw. The state legislature failed to set aside money to implement the changes. Each county still had to pick up the tab for indigent defense—and many failed to provide adequate funds.

  Wycliffe Orr, a Gainesville, Georgia, attorney who served on that first Indigent Defense Council and went on to push for reforms over the next three decades both as a state legislator and as a council member, asserts that passage of the 1979 reforms changed little.

  “All the council could do is issue guidelines as to caseload limits and such and try to work with local lawyers to improve things,” he says when I talk to him in his Atlanta apartment in February 2012, in the midst of the Rodney Young trial. He explains that the council had a single part-time director of indigent defense for the entire state. Still, he says, “We went all over Georgia and said [to county commissioners] that you have to do this under the constitution, so step up to the plate.” Orr and the council argued that it was the right thing to do, the ethical thing, the fair thing, the constitutional thing. “It fell on deaf ears,” he says. Local elected officials simply refused to get behind the issue. The reality, Orr insists, is that “nobody is going to get elected campaigning with a stump speech about the poor receiving ineffective counsel.”

  So reformers switched tactics, to money. “We finally realized that we should go all over the state and talk with county commissioners, saying, ‘Tell your legislators, “how ’bout you pick up some of this tab for indigent defense?”’” Eventually, the Indigent Defense Council made some headway. County commissioners who were reluctant to get behind any change that would cost money, agreed they would be happy to spend state money to improve defense—and they told their state legislators as much.

  It took ten years of agitating, but in 1989, the state finally agreed to chip in $1 million annually toward indigent defense. It was a paltry sum, but it grew, incrementally, until it reached approximately $5 million in 2000. The money made a slight difference. It was progress, certainly. But the amount couldn’t begin to address the problems that plagued public defense in forty-eight separate circuits across the state. For example, private attorneys were winning lowbid contracts to represent all of a district’s poor for annual salaries in the $25,000 range, Orr says. On top of that, the lawyer necessarily juggled those duties with a private practice. Hundreds of defendants languished in local jails waiting for an attorney to be appointed or received slapdash defense by an overworked, underpaid defender whose caseloads skyrocketed.

  In 2000, as the crisis in public defense grew too large to ignore, the state supreme court established a Blue Ribbon Commission to study indigent defense. Comprised of judges, lawyers, legislators, and others, the commission heard horror stories from more than sixty witnesses in the criminal justice system over two years. As a result of that investigation, in 2003 the legislature passed the Georgia Public Defense Act, which established a new, uniform statewide public defense system in Georgia. For the first time, public defenders would work out of central offices—as district attorneys had long done—with staff investigators, paralegals, law libraries, and, significantly, colleagues who could mentor newcomers, share knowledge, offer tips, refer experts, advise on case law. The public defenders would be governed by the Georgia Public Defender Standards Council.

  What made reformers truly ecstatic, however, was the promise of dedicated state funds for public defense. Even for death penalty cases. “One of the last-minute tradeoffs done to get counties to support this was the promise that the counties would no longer be responsible for capital cases,” says Chris Adams, the public defender appointed to head up the resulting, newly created Georgia Capital Defenders office. Death penalty cases were time-consuming and expensive. “The counties signed on to this, in part, so they could get out of the burden of capital cases.”

  As the Rodney Young trial begins, Joseph Romond has nine open death penalty cases on his desk. This fact torments him. The stakes are so high, yet he knows Rodney’s case has faltered because of lack of resources. “If we had enough time and energy to adequately prepare, things would look very different,” he says.

  Romond’s old boss, Chris Adams, tried very hard that first year of the Capital Defenders office’s existence to keep cases at four per lawyer. “Especially because I had a lot of new lawyers,” he says, explaining that more experienced lawyers may be able to take on five cases as they gain skills and get faster, but there are practical and emotional challenges to this work that are unique. “Even pleas,” he says, can be tough. “Getting emotionally to the point of being able to plead a case to life without parole feels like a terrible defeat. It’s weird to say, but it can feel like you’re giving up on your client.” Adams, who has been doing this work for twenty years, says it could be that he is jaded—and perhaps new lawyers struggle with this. But when there is, say, a videotape of your client shooting the police officer by the side of the road or a taped confession or other incontrovertible evidence, a plea can make sense. “You don’t have to litigate everything under the sun. Rather than being jaded, it might mean that with experience, you learn to trust your intuition.”

  But even with pleas, it takes some serious work to find out whether they make sense. And, because one never knows at the onset whether there will be a plea or a full-fledged trial, Adams was committed to capping caseloads for attorneys in the Georgia Capital Defenders office at four. Once, a few years earlier, while working for the Southern Center for Human Rights, he was doing a capital trial in Alabama. “I thought if I had to work on eight cases at a time, I would have lost my mind,” he says—and this after twenty years’ experience and twelve capital trials under his belt. “I had responsibility for three active, full-on cases and I was losing my mind anyway.”

  Lack of funding has continued to plague public defenders there, though in the beginning it seemed as if the legislature had developed some promising solutions. In 2000, the Georgia legislature deftly skirted the thorny issue of “my hard-earned tax dollars paying for criminal defense” by eschewing the use of tax for the venture. Instead, it created an Indigent Defense Fund, whose coffers were filled via court filing fees from civil cases. For example, if a Georgia resident filed a civil case, $15 was added to the processing fees. The fund quickly swelled to more than $40 million, and the state began to pick up more and more of the cost of indigent defense services.

  The new system became operational in 2005, and for the first two years, things went well. “But there were telltale signs early on that the state was not making a full-fledged commitment to it,” said Orr, explaining that several million a year started being diverted from public defense into the state’s general fund. “The effect on the system over time because of lack of funding was dire indeed. It created a situation where various cases, including capital cases, were essentially stopped due to lack of funding.”

  And then there was the Brian Nichols case. Nichols, who was on trial for rape, escaped from the Atlanta courtroom where he was being tried, killing a U.S. Customs agent, the judge, the court reporter, and a sheriff’s deputy. The Fulton County district attorney took this horrific but fairly straightforward murder case—there were plenty of eyewitnesses to the crime, so the guilt-innocence phase of the trial was not overly complicated—and charged Nichols with fifty-four counts, listing 478 potential witnesses—a daunting number to defend against. The Capital Defenders office was hard-pressed to respond in kind; to do so would cost almost $2 million. When the press and politicians got wind of that, and took to calling it the “Cadillac defense,” public support for indigent defense plummeted. At the same time, with the Capital Defenders office having used up almost half of its budget on a single massive case, the remaining seventy-five death penalty cases in the state ground to a near halt due to lack of funding.

  But it wasn’t just lack of money that plagued the system. After two years of operation, politics struck.
Fueled in part by legislative dissatisfaction with the progress of the Nichols case, the legislature began to chip away at the public defense system. Historically, since the 1700s, things to do with the courts had been handled, naturally, by the judicial branch. In 2007, the legislature moved oversight of the Public Defender Standards Council to the executive branch. While the council was under the judicial branch, the legislature had little control over its funding. It could reduce the judicial budget as a whole, but its ability to dictate how the judicial branch used those dollars was limited or nonexistent. But with the council under the executive branch, the legislature could chip away directly at the budget for indigent defense.

  And it did. Consequently, the budget crisis for indigent defense played out across the system with layoffs and cutbacks. Its impact was particularly dramatic in the Capital Defenders office, even though this new office held a lot of promise. In 2004, Chris Adams was appointed to take over a small Georgia legal organization called the Multi-county Defenders that would morph into the Capital Defenders office the following year. Adams needed to come up with an estimate regarding costs and staffing needs. In Georgia, the average cost of a capital murder trial was $360,000. Based on historical averages, he knew they would be carrying about a hundred cases at a time, with approximately forty new cases a year.

  “If you do that math, forty new cases times $360,000, it comes to—” I can hear Chris Adams over the phone line checking his math on a calculator to double and triple check that he’s got it right even all these years later. “—$14.4 million a year. I had just come from a small nonprofit [the Southern Center for Human Rights] and I could not even say $14.4 million a year out loud in a request. Phenomenal. That was just a stunning number for me.” Because the Georgia Capital Defenders would be gradually accruing new clients as the system changed over and all of the state’s death penalty cases were sent its way, the office began with $7.2 million for the 2005–2006 fiscal year. “I thought it was a good starting point,” Adams said.

  And it was. Midyear expenses were running about a million under budget, Adams said. But then the director of the state’s larger indigent defense took that million out of the Capital Defenders’ budget midyear to funnel it to other public defenders in the state. “That would have been fine if it was just for the five remaining months of the year and we went back up for next year, but it didn’t [get restored],” Adams says. And most of the new cases were not yet at the trial phase, so costs were still low. But the budget was cut to $5.1 million the next year. Then it went down to $4.1 million. At that point, the Georgia Capital Defenders had approximately sixty-five death penalty cases. “At that point, we couldn’t survive on that money,” said Adams, insisting that approximately $9 million was needed to properly fund that number of cases.

  That year, 2006, the Brian Nichols case came along, and it was clear the coffers would be drained. The Capital Defenders were trying to handle sixty-five open cases on a budget of $4.1 million. “At this point, I’m looking at our budget and all our cases and saying, no way,” Adams recalled. “The only way it would work is to sacrifice our clients’ constitutional rights, and I can’t do that. I felt like it was at a crisis point.”

  “We had been told to ration resources,” Adams said. If a case really urgently needed some expenditure, it would get approved, they were told, but if it could wait a year, wait. “I’ve been doing capital work long enough to know that the only way to get good results is to jump on it early and work it hard,” Adams said. Wait, and evidence vanished or witnesses forgot or documents were tossed. “You can’t win if you wait.”

  Because efforts to procure adequate funding from the legislature had been repeatedly thwarted, Adams thought he should attempt to engage the judiciary. What would happen if he simply refused to take more cases? “I don’t know if the judge can order the state to pay more—or whether that would violate separation of powers—or whether the DA could push for fewer death penalties, don’t know if you can do that, but we’ve got a problem,” Adams said. He hoped to send a strong message through the judges. But Adams’s boss refused to let him take his funding issue to the courts.

  So, in September 2007, Adams resigned.

  “Was he good to you in the beginning?” assistant district attorney Melanie Bell asks Doris Jones, the victim’s mother.

  Doris, in her forties but looking much older, walks into the courtroom carrying the weight of her past relationship with Rodney Young as if it were a heavy burden that has physically worn her down. She climbs the step into the witness box after a lunch break and settles into the seat, smoothing her dress over her thighs and then plucking at the sleeves busily—lint? dog hair? a stray thread?—and manages to avoid eye contact with anyone for a few moments. The assistant DA repeats the question. Doris looks up. Her face is lined and her eyes overflow with tears. Between her cautious movement as she ascends the stand and the tight, matronly bun she wears, it is clear that the last few years have taken their toll. She looks nothing like the fun-loving party girl who met Rodney Young seven years ago at a bar in Bridgeton, New Jersey.

  Doris considers this question for a moment. Was he good to her? She glances at Rodney Young, who sits in front of her, just to the right. His head is down, never meeting her gaze as she speaks. He looks at the carpet. She looks at him—and then away.

  It is a hard question.

  Ultimately, Doris will tell the jury what she saw the night her son was murdered, about the threats that were scrawled on the walls of her home—“Wes will get you too” and “Wes know what you look like,” the semiliterate culprit had written, likely meaning “We’s” or “We”—about her sneaking suspicion in the days to come that her semiliterate ex-boyfriend up in New Jersey might be behind this, about the love letters this same ex had barraged her with begging her to come back, about her fear that this man might have come down to Georgia to try and scare her into returning to Jersey with him, about the terrible toll her son’s murder had taken on the family.

  Was he good to her?

  The attorney repeats. “Was he good to you in the beginning?”

  “Yes,” Doris says, but explains that they argued a lot.

  “Can you give an example of the things y’all argued about?”

  Doris says they argued about her smoking, which Rodney hated. They argued about money. They argued about friends.

  “Did you argue about infidelity?”

  “Yes,” Doris says.

  “Would you break up?”

  “Yes.”

  “For long?”

  “Couple months.”

  “Who was pursuing who?”

  “He was.”

  “Did he give you any gifts?”

  “Yes, and he would buy me groceries.”

  “So, he was trying to woo you back?”

  “Yes.”

  Rodney lived in the basement of his aunt’s house in Bridgeton, while his aunt’s family and Rodney’s daughter lived upstairs, Doris tells the jury. The prosecutor walks Doris through the history of her relationship with Rodney. Doris says she left him many times over the years, twice going as far as Georgia to live with her family there. Then Rodney would call and send letters, begging her to come back.

  “And after these phone calls and letters, y’all would reconcile again?” Bell asks.

  “Yes.”

  “That pattern existed throughout your relationship with Rodney?”

  “Yes.”

  “Would he get you back with those nice gestures?”

  “Yes.”

  “And then it would deteriorate again?”

  “Yes.”

  “Then, in November 2007, did the defendant come see you [in Georgia]?”

  “Yes.”

  “You aware he was coming?”

  “Yes.”

  “Did anything out of the ordinary happen during that November 2007 visit?”

  “Yes, he proposed to me. Everyone knew [he was going to do it] but me. We were all at my sister’s h
ouse. He came in and got on his knees and proposed to me.”

  “Did you think the relationship was going to improve when you married?”

  “Yes.”

  Doris agreed to move in with him after that. But she had to deal with her job. When she left New Jersey, Doris had taken a job in Georgia assisting mental health patients in supervised living apartments with grocery shopping and other chores. After Rodney proposed to her, she went back to New Jersey and was able to get her old job back. But Rodney did not seem happy to see her when she returned, and they fought immediately and repeatedly. In January 2008, she says, she left him for good, clearing out so quickly she came with only the clothes on her back and returned to Covington, Georgia, where she moved in with her son, Gary Jones.

  Rodney, she says, begged her to come back and sent her multiple letters. Beneath the bright fluorescent lights of the courtroom, the prosecutor places a handwritten letter—carefully printed but rife with errors—dated September 6, 2007, onto an overhead projector and reads it aloud.

  Dear Doris

  Doris I really miss you and I want to be with you for the rest of are’s lives I love you I miss you I love the way you walk I love the way you Dress for me I love to look at you naked I just love the total packet about you it can’t get no better than that Doris. So I hope you want me too. I don’t want to be with out you. I got my hope up high being with you so let that happen lets me, you and Aaliyah [Rodney’s daughter] be the family were proposed to be Okay. You said one thing wright to my mom that I’m the boss of AalihyaH and that all matter. . . . All I want from you is love and to treat AaliyaH like the mom she never had. And I believe that can happen. I Promise I will never hurt you and I will try to take care of me, you and Aaliyah the best way I can. I Just want Wive that love me and I love her I don’t need nobody Else. That my worD. I need you Honey Cause I love Doris M Jones. Your mother said something that made me mad But I got over it. So call me or write me back. . . . Remember what you told me about if your family dn’t like me Ownly matter that you love me. Remember that saying Cause I love you and I don’t Care what nobody Else say. Remember that. Doris this is my life and you are my life Okay. And I Care What happen between me add you. So you can tell anyone else or tell anyother Negro that Im not going to let you go. That not easy so don’t forget that you love me and I know you do.