Indigent defense is a complicated issue. Criminal defendants have an absolute constitutional right to be represented by competent counsel and the government has to provide counsel for defendants who cannot afford a lawyer. It doesn’t stop there, however. There is more to indigent defense than simply paying the lawyer. A lawyer without resources for investigators and even expert witnesses is like a captain without a ship. As far back as 1957 the U.S. Court of Appeals for the Second Circuit explained:

Furnishing … a lawyer is not enough: the best lawyer in the world cannot competently defend an accused person if the lawyer cannot obtain existing evidence crucial to the defense, e.g., if the defendant cannot pay the fee of an investigator to find a pivotal missing witness or a necessary document, or that of an expert accountant or a mining engineer or chemist. It might indeed be argued that for the government to defray such expenses which the indigent accused cannot meet, is essential to that assistance of counsel which the Sixth Amendment guarantees …. In such circumstances, if the government does not supply the funds, justice is denied the poor—and represents but a upper-bracket privilege.

Most counties in Georgia have a public defender’s office. The Georgia Public Defender Council (GPDC) was created in 2003 and is funded by taxpayers to handle the majority of indigent defense in Georgia. Some indigent defense happens outside this system however. The Grinstead murder trial is one such instance.

Ryan Alexander Duke is scheduled to stand trial in Irwin County, Georgia for the murder of high school teacher and beauty queen Tara Grinstead. Duke was arrested with great fanfare in February 2017 for the 2005 alleged murder of Grinstead. He was represented for the next year and a half or so by the public defender’s office for the Tifton Judicial Circuit. He later elected to accept the volunteer services of three Atlanta-area lawyers. His defense is a complicated one and the evidence in the case appears to be extremely voluminous, hyper-technical in some ways, and convoluted. Among other things, the defense is alleging his incriminating statements to investigators qualifies as a “false confession.” For these reasons, the Duke defense team has asked the court to provide funds to pay for defense resources such as investigators and expert witnesses – the sort of resources that any lawyer, prosecutor or defense attorney, needs to properly prepare for and conduct a trial of this magnitude. So far, this funding has been denied.

Mr. Duke is of course presumed to be innocent and he is clearly indigent. His election to accept pro bono services of three private attorneys has not changed his indigency. Ironically for Duke, because he accepted the services of volunteer lawyers of his own choosing, he may have to defend himself without the resources he would have had if stayed with the public defender’s office. This illustrates a broader problem with indigent defense in Georgia: How does an indigent defendant level the playing field when represented by private counsel?

The Georgia Public Defender Council as an independent state agency and by law is "responsible for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons…" In 1986, The Georgia Supreme Court held that an indigent defendant has a right to state funds to pay for expert witnesses as related to "critical evidence" that might be open to interpretation among experts. Specifically, the Georgia Supreme Court said that a trial court shall order payment of these funds from public coffers. Every year the legislature funds the GPDC so the GPDC can do its work and pay experts and investigators as needed. The legislature has not made the same provision to fund indigent defense when it occurs outside the framework of the GPDC. So, if the GPDC doesn't agree to pay these costs, who does? There can be only one answer: the county where the case is pending. But what if the county simply can't afford it? What if there is a case so big and so complicated that any given county just doesn't have the money? What if due process and the right to effective counsel demand monies to be paid yet a county – or a court – refuses?

Prior to the creation of the GPDC the procedure for obtaining public funds for experts was fairly simple. It was outlined by the Georgia Supreme Court in 1988. Defense counsel – usually court appointed – files a sealed motion with the court explaining what was needed and why. These requests were / are routinely approved so long as the price tag was reasonable. The creation of the GPDC did not abolish this procedure and it is still the norm in many counties in Georgia where indigent defendants are represented by counsel outside of the public defender system.

Now back to the earlier question - What if due process and the right to effective counsel demand monies to be paid yet a county – or a court – refuses? Well, in the event of a conviction an appellate reversal may occur. If a trial was expensive the first time around it will be extra costly the second time around. It’s more important to get it right the first time. Judges are obligated to ensure that due process happens in our courts so if the state won’t provide the necessary resources counties are just going to have to step up – and pay up.

Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author.