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A PRICE TAG ON CONSTITUTIONAL RIGHTS

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SPRING 201143A PRICE TAG ON CONSTITUTIONAL RIGHTS: GEORGIA V. WEIS AND INDIGENT RIGHT TO CONTINUED COUNSELBy: Katy Bosse 1“Thou shalt not ration justice.” –Judge Learned Hand2 On February 2, 2006, Jamie Weis was arrested and charged with the robbery and murder of a local senior citizen.3 Nearly seven months after his initial arrest, the state notified the Griffin trial court of its intention to seek the death penalty.4 In the Georgia Public Defender system, created by the Georgia Indigent Defense Act of 2003, all death penalty cases are assigned to the Georgia Capital Defender Division instead of the local public defender’s office.5 In Weis’s case, the overseeing Georgia Public Defender Standards Council determined that the Capital Defenders Division had a tremendous caseload.6 And instead of assigning another case to the already overtaxed Capital Defenders Division, the Council decided to assign private attorneys Robert Citronberg and Thomas West on a contractual basis.7 From January 24, 2007 through November 26, 2007, the defense attorneys filed over sixty motions on Weis’s behalf.8 During that time, the Georgia Capital Defenders also handled the high profile case of Brian Nichols,9 which exhausted most of its 2007 annual budget and depleted the funds available for other cases.10 Citronberg and West filed for four continuances between January 24 and November 26, 2007,11 because the state could no longer afford to pay them for their time.12 On November 26, 2007, District Attorney Scott Ballard made an oral motion to remove Citronberg and West from the case, and suggested that attorneys from the local public defender’s office be placed on the case instead.13 Judge Caldwell sustained the state’s motion and removed Citronberg and West.14 Subsequently, two public defenders, Tamara Jacobs and Joseph Saia, were assigned as counsel.15 This article explores the origins of an indigent defendant’s right to counsel and demonstrates how the facts of the Weis case illustrate the need for a definitive right to continued counsel. Part I traces the procedural history of Weis, the history of the right to counsel in America, and the current jurisdictional split on the right to continued counsel. Part II analyzes the current Supreme Court language on indigent right to continued counsel, and suggests how Weis provides an opportunity for the Court to resolve the issue in favor of indigent defendants. Analyzing the procedural history and arguments described below, it is evident that denying Weis the right to retain his court appointed counsel violates his Sixth Amendment right to a fair trial, because he was without effective counsel for over a year during which the prosecution continued to mount its case.I. How We Got to a Continued Counsel Splita. The Georgia Decision“I guess the Supreme Court will have to earn their money.” –Judge Caldwell16 On December 10, 2007, the two public defenders assigned to Weis’s case, Jacobs and Saia, filed a motion to withdraw as counsel due to “their inability to duplicate the familiarity with the case.”17 The motion was denied.18 Subsequently, Weis filed another motion on December 20, which contained an affidavit from Joseph Saia that detailed the current workload of his office and his ninety-one open felony cases.19 Additionally, Weis and his public defenders filed several other motions to withdraw, along with a motion requesting Judge Caldwell recuse himself from the case, and a petition for mandamus and prohibition against Judge Caldwell.20 On April 25, 2008, the Georgia Capital Defenders indicated in discussions that funding would again be available to Citronberg and West. However, when provided a contract, the Georgia Capital Defenders refused to process the bills.21 On December 31, 2008, Weis filed a petition for a writ of mandamus against the judge and the Public Defender Standards Council, which was dropped after the judge agreed to reinstate Citronberg and West.22 Citronberg and West were re-assigned as counsel on February 11, 2009.23 However, as a New York Times article describes, “[the][p]rosecutors had steadily built a case while the defense did nothing. Leads went cold, memories faded, witnesses went missing.”24 Nevertheless, the trial was set for August 3rd, 2009, with evidentiary motions scheduled for July 8, 2009.25 On July 8, Weis filed a motion to dismiss due to the denial of his right to a speedy trial.26 The motion was denied and counsel appealed.27 The decision was affirmed by the Georgia Supreme Court on March 25, 2010.28 The Georgia Supreme Court analyzed the case under the Barker v. Wingo four-part balancing test for assessing a speedy trial claim.29 Under the test, a court must balance (1) the length of the delay and (2) the reasons for the delay with (3) the defendant’s assertion of a right to a speedy trial and (4) the prejudice to the defendant.30 T he court found that the length of the delay did not violate the defendant’s right to a speedy trial, and that the reasons for the delay did not constitute a “systemicTHE MODERN AMERICAN44breakdown of the public defender system.”31 The court concluded that the delay was due to Weis’s failure to cooperate with Jacobs and Saia, the public defenders appointed after Citronberg and West were removed.32 Specifically, the court ruled that a defendant could not assert the right of counsel of choice to delay judicial proceedings.33 The court acknowledged that the lack of funding contributed to the delay but decided that it was not the sole factor.34 The court ruled that a lack of funding from the Georgia Capital Defenders was not a “systemic breakdown” of the public defender system, and thus was not the primary reason for the delay.35 Instead, the court found that the defendant’s conduct and the conduct of Citronberg and West, i.e., not being able to work without compensation, was the primary reason for the delay.36 Rather than acknowledge that the state’s public


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