Georgia Today: Why South Georgia may be the worst place to be poor and charged with a federal crime

Georgia’s Southern Judicial District has been called the worst place in America to be poor and charged with a federal crime. The district lacks a full-time federal public defender's office, which advocates say leads to inadequate representation for indigent criminal defenders. 

RELATED: Is This the Worst Place to Be Poor and Charged with a Federal Crime?

TRANSCRIPT

Steve Fennessy: I'm Steve Fennessy. This is Georgia Today. This week on the podcast: Why the Southern District of Georgia — a vast part of the state that covers 43 counties and is roughly the size of West Virginia — could be the worst place in America to be poor and charged with a federal crime. My guest is Charles Bethea, a staff writer at The New Yorker. His recent investigation into the Southern District goes to the heart of the privilege we're taught is enshrined in the Constitution: the right to an attorney.

[News tape] CBS News: Something Americans now take for granted: the right to be represented by an attorney when accused of a crime, even when you can't afford to pay for a lawyer.

Steve Fennessy: Welcome, Charles.

Charles Bethea: Thanks for having me, Steve.

Steve Fennessy: To lay the groundwork here, remind us what exactly is a public defender and what does he or she do?

Charles Bethea: The right to public defense goes all the way back to the Sixth Amendment, which was ratified in 1791. But it wasn't until the second half of the 20th century that its promise of an attorney to anyone charged with a crime began to be realized. For more than a century before that, this right was basically interpreted to mean that if you had money, you could hire an attorney to defend you. The exception was death penalty cases, when lawyers were typically appointed by the courts. In the late 1930s, the Supreme Court ruled that the government had to provide a lawyer to needy defendants in all federal criminal trials. Still, it took another three decades for the funding of this guarantee to be actually realized on the federal level, when the Criminal Justice Act was passed in 1964 and then six years later in 1970, the federal defender system, which is the focus of my story, was finally created.

Steve Fennessy: When we talk about public defending of defendants who are charged with a federal crime, that's completely different from those who are charged here in Fulton County?

Charles Bethea: There's some overlap there, but as a rule, federal laws supersede state laws. The country is divided into 94 judicial districts by population, each of which has a U.S. attorney appointed by the president, approved by the Senate. Each one also has its own judges who are appointed to lifetime terms. Georgia has three of these districts, by the way: the Southern, the Middle and the Northern. Federal defense is, almost everywhere, modeled on a hybrid system. So half of that system is a Criminal Justice Act panel made up of private attorneys from various legal backgrounds who are appointed by the district's judges to represent indigent defendants in criminal cases. They do this in their spare time, and they're paid with vouchers. The really important other half of that system is the federal defender organization, which is made up of full-time, well-resourced and compensated attorneys who specialize in criminal defense.

Steve Fennessy: So in your reporting, you found that the — the Georgia Southern District works a bit differently than than most other districts, virtually all the other districts, when it comes to providing lawyers for poor defendants who are charged with the federal crime. How is it different?

Charles Bethea: So a feature of the federal system, which some might call a bug, is that the district's judges have the discretion to forego the defender's office if they want to. Ultimately, they get to create their own CJA plan.

Steve Fennessy: And CJA, again, stands for what?

Charles Bethea: Criminal Justice Act plan. So for most of its existence, there has not been a defender's office in the Southern District of Georgia; they decided against creating one. Instead, unlike almost everywhere else, they've relied exclusively on a CJA panel of private attorneys. In practice, that meant you had tax attorneys, elder law attorneys, bankruptcy attorneys ending up, you know, in some cases pleading criminal defendants out to life sentences in complex, document-intensive cases. So, really concerning pairings of clients with lawyers. But I did say “most of its history” because the Southern District did briefly have a defender's office, interestingly, I learned, starting in the late ‘70s. It was created by a judge who's now deceased, seemingly as a gesture of patronage to a former U.S. attorney. The program was ultimately shut down by the judges in the ‘80s. According to the court, who commented for the piece, the shutting down was because the office was quote "seemed to have deteriorated in its performance." But according to a number of close observers I spoke to for the piece, They seemed to have shut it down, actually, because the defenders were pretty zealous in their advocacy, slowing the conveyor belt of convictions, as one of them put it, down there.

Steve Fennessy: I mean, that's the job of an attorney, is to — is to be a zealous advocate for his or her client, right?

Charles Bethea: It is. It's not to simply provide the appearance of defense or some sort of nominal defense, but to actually do the work, which is hard and tim- consuming. One of the pressure points here in the system is that a lot of judges made it pretty clear that pushing people through their courts was sort of the highest goal, as opposed to rigor. You had a judge who, in his obituary, his court was referred to as the rocket docket, and that was celebrated. So when you have these public defenders come in and slow things down. I think that's clearly not something that certain judges like and that seem to be the case here.

Steve Fennessy: What's at issue here isn't the right of defendants to have lawyers provided for them. It's more the mechanism by which that's done, which, as you say, it feels a little willy-nilly. It sounded like you said you could have like a bankruptcy attorney representing someone who is accused of a federal drug crime.

Charles Bethea: That was happening for quite a long time. The sense I got from talking to these attorneys is that they just sort of grin and bear it, that you don't want to give these judges in the district — where you work and perhaps had worked for years, hoped to work for years — you don't want to give them a reason to dislike you. Everyone I talked to for this piece who studies criminal justice in this country, you can have the best panel on Earth. But if you don't also have this other component, the federal defender program, you're sort of standing on one leg.

Steve Fennessy: When you're assigned an attorney whose expertise is something completely different, it's almost like having an electrician come to put a new roof on.

Charles Bethea: One attorney told me he had a friend from law school who'd call him and say something like, "Hey, I got appointed to another bank robbery case down here. What do I do? I issued all my notices for deposition," and the attorney who shared the story with me said that he just sort of laughed at his friend and reminded him, "Hey, man, you don't get depositions in a criminal case. It'd be great if you did, but you don't." So that just sort of illustrates, like how little some of these appointed attorneys understood the basic mechanics of criminal procedure. So in most cases like this, the appointed attorneys are quite nervous about being overmatched because on the other side of the courtroom is a career prosecutor or from a really well-funded U.S. attorney's office.

Steve Fennessy: How did you first find out about this, Charles, and what led you to it?

Charles Bethea: About six months ago, I received an email from a concerned employee at the defender's office here in Atlanta, where I live, which represents the Northern District of Georgia and is widely regarded as a top-tier defender organization. This person had been researching the Southern District's approach to defense, and with her help, I began to make some inquiries. It took a really long time, frankly, to understand this rather byzantine system. Still, there's still parts of it that I I'm beginning to grasp better. It also took a long time to get folks to talk to me.

Steve Fennessy: Has there been any sort of analysis looking at the Southern District of Georgia, comparing it to others in terms of convictions or sentences or anything like that that gives you some sort of objective look at how it's not just an outlier in terms of how it approaches public defenders, but how it actually does justice?

Charles Bethea: There was a review of federal sentencing practices that was released last year, which found that the Southern District had some of the highest sentencing averages in the country. That isn't, of course, just a function of the quality of defense. The skill of the prosecutor and the tendencies of the judges plays a role there, too, obviously. There was also in 2017, so a few years earlier, a comprehensive review of the Criminal Justice Act system, which is done every 25 to 30 years, and it incorporates testimony from attorneys in every district. And it concluded that panel attorneys were far too often poorly trained and poorly paid, and that every district should have a defender's office.

[News tape] VICE, Ezekiel Edwards, Special Counsel ACLU Criminal Law Reform Project: Without a meaningful indigent defense system. You have what we have today, which is over 2 million people incarcerated and the highest incarceration rate in the world.

Charles Bethea: It also said Congress should create a fully independent entity governing the provision of public defense and federal courts, which would give the judiciary far less say over matters of public defense. And it concluded that the public defense is highly uneven across the country, and it was pretty clear that the Southern District of Georgia, is at one end of that unevenness.

Steve Fennessy: And Charles, I think it bears repeating that the Southern District of Georgia is one of how many of those 94 districts that actually do not have a full-time public defender program?

Charles Bethea: Two; if you don't count the Northern Mariana Islands, there's only two. There's Southern District of Georgia and Eastern Kentucky. I spoke to a former employee of the Northern District of Georgia's defender program, who's now a professor of law in eastern Kentucky, who was able to say, I think with authority, that while things are not great in eastern Kentucky, either, in her view, things are a lot worse in southern Georgia. But both of them lack a federal defender organization.

Steve Fennessy: And Charles, did you hear from any of the judges as to why they've made the decision they have there?

Charles Bethea: The judges in the Southern District, it's not a terribly diverse group. They're all white and seven of the eight are male. The chief judge, Randall Hall, was a Republican state senator representing Georgia's 22nd District almost two decades ago. And I sent Hall a long list of questions for my piece, many of which, frankly, he chose to ignore. But the answers he did give, such as as to the question of why the district eliminated its short-lived defender program, didn't seem to hold up to the scrutiny of my reporting. In response to that particular question, he told me that the defender's office had been, quote, “inefficient, redundant and unnecessary.” And that's the reasoning they're still using.

Jonathan Rapping, Founder & President, Gideon’s Promise; Professor of Law and Director of the Criminal Justice Certificate Program at Atlanta’s John Marshall Law School and Visiting Professor of Law at Harvard University Law School: What I've learned in my over 20 years now working in the criminal justice system is that if anything defines criminal justice in America, it's that we are indifferent to most people processed through the system every day. Systems that have come to accept an embarrassingly low standard of justice for poor people.

Steve Fennessy: The lack of a public defender office in the Southern District of Georgia has real-life consequences. Next, the fate of one South Georgia man whose court-appointed attorney was ill-equipped to represent him. This is Georgia Today. I'm Steve Fennessy.

[BREAK]

You're listening to Georgia Today. I'm Steve Fennessy. I'm joined by New Yorker staff writer Charles Bethea. In the course of your reporting for this story, you did track at least one — one case that that went through the federal court in the Southern District of Georgia. What did you find?

Charles Bethea: My story spent some time looking at the case of a man in Statesboro, who I call Albert. He was sentenced to 15 years for drug and gun related charges back in 2009, and his case illustrates a number of problems actually in the criminal justice system in this country, including the use of phony storefront operations by the Bureau of Alcohol, Tobacco and Firearms. This storefront operations have been used for a long time, and phony storefronts resemble real stores, but they're staffed by undercover agents and their goal is to solicit the sale of guns and drugs. And that was what ultimately trapped Albert. Albert's lawyer, who specialized in civil rather than criminal proceedings — which is a problem to start with — was, was almost a caricature, I would say, of what you think of when you think of a bad lawyer or what a bad lawyer could be like. He stole from and lied to clients. He stole from and lied to the partners of his firm — he even stole from then ultimately lied to the government. And so he was he was disbarred and, for his government theft, sentenced to five years of probation. A pretty stunning irony in Albert's story and the story of the Southern District — and, really, federal defense in this country — is that this now-former lawyer, a criminal, committed his federal crime in a different district, not in the Southern District, and this district happened to have a dedicated defender's office, which probably helped him avoid prison. I think he's both emblematic of the failures within the Southern District of Georgia but also, arguably, the — the successes of the defender program elsewhere to — to really give the best possible advocacy to clients.

Steve Fennessy: This attorney for Albert was chosen to represent him, even though the attorney himself didn't have experience in criminal law.

Charles Bethea: His expertise, as I came to understand it from those who worked with him at the time, was clearly civil matters, not criminal matters. Albert saw him once prior to his sentencing. He got the maximum penalty. Albert was unable to reach this attorney when he was trying to figure out if he had any avenues for appeal when that phony storefront operation — there were some issues, there, with the case agent and the prosecutor having an affair, and that causing concerns in, around the work that they'd done together. And some other folks who'd been caught up in this storefront operation had found a way to appeal through that revelation. And Albert was unable to get anyone to help him in the Southern District because he didn't have access to a federal defender program.

Steve Fennessy: So Albert was not the only one caught up in this storefront operation?

Charles Bethea: Yeah, there are hundreds of — of almost entirely Black men who were caught in these operations.

Steve Fennessy: So isn't that kind of woeful representation an avenue for Albert to appeal?

Charles Bethea: Well, he pled guilty. Once you plead guilty, you really severely limit your standing for appeal. It's almost impossible. And of course, there are exceptions there, but it becomes incredibly hard. So Albert was effectively shut off from that. He was sentenced to 15 years, and he spent that time in a handful of different locations in prison. And he actually was released just a couple of months ago, actually for what amounted to good behavior in prison. He caught a break. When he got out, he got a job with a forklift operator, but he's living in a halfway house. And one of the many tragedies of his story, though, is that if he had just been released a couple of years earlier, he would have been able to — to say goodbye to his mother, his father and a grandmother he was close to died while he was locked up. If there had been a federal defender program, he might have had an interested attorney there take up an appeal on his behalf, even if it was a long shot. He could have had a chance. People who work within the federal defender program make really robust arguments for how ultimately, if you have a federal defender program — which yes, it does cost money — you limit the number of successful appeals that you're going to have down the road because you've had quality defense work being done and it's not going to be overturned. Having appeals costs money in and of itself. And in the long run, the argument is made that that's more expensive.

[News tape] VICE, Ezekiel Edwards, Special Counsel ACLU Criminal Law Reform Project: The lack of indigent defense funding is a major problem. States don't give more than 2% of their budgets nationwide to indigent defense funding, and this results in what we have today, which is a crisis where we don't have lawyers in many courtrooms or the lawyers that are in those courtrooms are swimming under way too many cases and are unable to provide effective representation.

Steve Fennessy: We're talking about the quality of the representation and in the case of indigent defendants, they are by definition poor. So what else can you tell us about the demographics of the people who — who are relying on this apparently flawed system for representation?

Charles Bethea: The large majority of folks who are charged with crimes in this country are disproportionately African American and male, and that the failures of the system is going to be disproportionately affecting that group of people.

Steve Fennessy: Since your story came out recently in The New Yorker, what's been the response? What have you heard from other attorneys?

Charles Bethea: I've gotten a lot of positive feedback from the defender community, which has been nice. There's also been a number of private lawyers in the Southern District, some of whom I've served on the panel there, who shared their own troubling stories about being appointed to cases they really felt like they had no business being involved with. But I'd say the most exciting note came from someone close to the judiciary who said that judges were, quote “abuzz” about the story and that she thought with some luck, it could lead to some change.

Steve Fennessy: Where would the change come from? Would it be led by the judges or would it be led up in Washington?

Charles Bethea: Congress would have to act to make amendments to the Criminal Justice Act and how it's written, and to mandate things that are currently left up to judges. There is a sense that lawmakers are waiting to hear from judges who can kind of lead the charge to — to push for those changes to law.

Steve Fennessy: I've been speaking with New Yorker staff writer Charles Bethea. Criminal justice advocates have been pushing for action to reform the Southern District's public defender system, but so far there's no indication that either Congress or judges within the Southern District are looking to make any changes anytime soon. Georgia Today is a production of Georgia Public Broadcasting. Jess Mador is our producer. Our engineers are Jesse Nighswonger and Jake Cook. You can keep up with Georgia Today by subscribing to the show at GPB.org or anywhere you get podcasts. Thanks for listening. See you next week!