Bob Barr

Defense Fund Held Hostage

State Must Cut the Cord on Unlimited Fees
The Atlanta Journal-Constitution
March 28, 2007

Sooner or later, in every major, high-profile criminal prosecution, someone raises the red herring of the cost of prosecuting the case. While efforts to highlight the cost are often titillating to the readers or viewers of a news story, the fact is, they are almost always wrong and always irrelevant.

The recently suspended slaying trial of accused courthouse killer Brian Nichols is no exception. Prompted by controversy surrounding the exceptionally expensive cost to Georgia's taxpayers, news stories are now making the rounds with estimates of how expensive is the prosecution of Nichols.

This latest effort to quantify with great precision the "cost" of a particular prosecution suffers from the fundamental defect accompanying any such exercise. The judge, state prosecutors, investigators, court personnel and others associated with the trial of the case are all "fixed costs" of the criminal justice system. Sure, there are specific, extraordinary costs associated with any particularly dangerous defendant, but trying to assign a dollar "cost" to every facet of the trial as if the entire county justice system were constructed and operating solely for and because of this particular trial, borders on irresponsible.

And in this particular case, such an effort tends to obscure the real problem, which is how the Nichols' defense is being funded, and the manner in which that payment system has become the tail wagging the defense dog.

The basic problem stems from the effort by the General Assembly in 2003 to revamp the entire mechanism whereby indigent defense is funded and carried out in Georgia. Unfortunately—but perhaps predictably—the Rube Goldberg system that the Legislature established via the "Georgia Indigent Defense Act of 2003" is already creaking to a halt.

This is the result to some extent of a process lacking in uniformity (a valid criticism also of the predecessor system), but more important, because the system established four short years ago allows for completely open-ended funding for many cases. Add to this equation a judge who lavishes taxpayer monies on the defense team far in excess of what most in the legal profession would deem adequate to meet constitutional and ethical standards for representation, and you have a recipe for problems, if not disaster.

Four years ago when this matter was debated in the Legislature, rather than go with a straightforward system of paid indigent defense lawyers supplemented by lists of county-level attorneys to handle overflow, it was decided that a complex hybrid system would be enacted.

Now, the uncertainties inherent in such a system have come back to bite the Legislature. As a result of Judge Hilton Fuller's unilateral decisions to employ taxpayer dollars to fund a defense team far in excess of what is essential to provide Nichols with a constitutionally adequate defense, the state now faces a budget shortfall that threatens not only the Nichols case but the entire indigent defense system.

The U.S. Constitution does not require—and has not been interpreted to require—that an indigent defendant, even in a capital case, is entitled to as "expensive" a defense as the "cost" of the prosecution. Yet, Fuller appears to have adopted as his own such an expansive reading of that venerable document.

So long as our state's system of providing indigent defense services is fraught with complexities and uncertainties such as allowing judges to essentially override the Legislature, local governmental authorities and the Constitution, and dictate that taxpayers must provide an indigent defendant a Cadillac defense team when a Crown Vic would do just fine, we can expect the system itself to operate—at best—by fits and starts.

Unlike privately hired defense counsel in criminal cases, who are almost always retained for a flat fee up front and who are then required to remain on the case even if they grossly underestimated the fee they should have charged, the Nichols' defense team is being allowed to operate on an open-ended, the-sky-is-the-limit basis.

In this scenario, it is in the best interests of both Nichols and his attorneys to ensure the proceedings continue as long as possible. Rest assured, once the current delay ordered by Fuller expires the Nichols defense team will almost certainly use that delay as a basis for either further delays, or as grounds on which to demand a new start to the proceedings.

House Speaker Glenn Richardson (R-Hiram) owes a duty to the system of checks and balances in our state, and to the taxpayers who are footing the bill for this exercise, to follow through on his promise to fix the system of indigent defense in Georgia.


Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.