When Prosecutors Have Bottomless War Chests & Everyone Else Doesn’t

If you haven’t heard of the Tara Grinstead murder case in south Georgia’s Irwin County, you are likely new to Georgia, still in high school, or a hermit.

I would imagine not everyone has the time to follow every progression of the case that dates back to 2005, especially the ones that dive deep into the Georgia code as lawyers grapple with a constitutional balance, but if you’re really out of the loop, might I suggest you take some time to read this piece and familiarize yourself.

Allow me to quickly summarize:

Two years ago, Duke was indicted on charges of malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with the death of Grinstead. At that time, Duke was represented by the public defender in the Tifton Judicial Circuit until two attorneys from Cobb County took over his case pro bono in August 2018. The pro bono attorneys, John Merchant, Ashleigh Merchant, and  John Gibbs, III, then asked the court to assist with the funding an investigator and as well as expert witnesses to refute forensic evidence the state has.

An Irwin County judge denied the defendant’s request for state funds saying Duke “has a constitutional right to be represented by private, pro bono counsel if he so chooses, he is not simultaneously constitutionally entitled to experts and investigators funded by the State.” The judge also said “Duke was indigent and had demonstrated a “compelling” need for the experts,” noting it was necessary for a proper defense, but that state funds could only be given to public defenders, not pro bono attorneys.

The defense appealed to the state Supreme Court who, on Monday, refused to hear additional arguments under Georgia Code § 5-6-34 (b). Basically, it’s a technical issue in the process, not necessarily on the content of the appeal, (If you want to get into the grit of that, you can read about it here), but interestingly, the justices previously suggested the lower courts should consider the appeal of funding before trial to avoid a conviction being overturned (which would warrant another trial). Justice Blackwell went as far as to call the issue over whether the funds should be awarded a ‘murky’ one.

Now, before I go on, I want to mention that Ryan Duke’s case is a terrible ‘poster child’ for attempts to try to work an angle of discretion or, dare I say it, compassion for the indigent.. Add up the publicity of the case across the state, the gravity of the charges, and how long it has taken for the justice system to yield any resolve for the family of Grinstead, the odds are not in Duke’s favor. But I am of the belief that it is always proper to question the justice system where inconsistencies arise, regardless of who the defendant is, and despite the egregiousness of the allegations, what Duke’s attorneys have argued for presents a good question:

Does the state have an obligation to help with funding defense trials when a defendant is deemed indigent?

Let’s set aside that the trial court judge noted for the official record that the defendant was indigent or that the Supreme Court signaled the issues it could cause against a person on appeal of a conviction. The underlying question is, regardless of how terrible the actuations are, how far should the state go to ensure a fair trial is provided?

Does that obligation go beyond legal representation to include supplements for trial and does the obligation go disintegrate when an indigent defendant is represented pro bono? There is no legal precedent for the latter question and the answer to the former is a resounding ‘yes’ since the state allows public defenders to petition for additional funds to prepare for trial.

But here’s why I question the Supreme Court justice assertions that the issue is ‘murky.’

A defendant is not indigent simply because they have a public defender, but rather because they cannot afford to pay an attorney. Georgia has codified the definition of indigent as a person who earns “less than 150% of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person, his or her dependents.” Again, the definition of indigent makes no mention of the term public defender.

But on the contrary, OCGA 17-12-2(8) defines a ‘public defender’ as “an attorney who is employed in a circuit public defender office or who represents an indigent person pursuant to this chapter.(emphasis added). Or who represents an indigent person as defined in the chapter, which is the definition referenced above.

It seems fairly simple to me.

Taxpayers often balk at the cost of public defenders –despite the negligible cost relative to other government expenditures – while simultaneously cringing at the idea of gambling their own freedom by rolling the dice with public defender representation. Yes, good public defenders exist, but we have all seen documentaries and read exposes on people who successfully challenge their convictions because of inadequate representation by these public defenders.

Taxpayers balk at the cost of defending the accused, but the prosecution — which is funded by taxpayers — has an unlimited war chest. They can call unlimited witnesses, double up on crime lab forensics, pay experts, and so much more. Of course, the burden is on the state to provide proof beyond a reasonable doubt without regard for cost, but ill-equipped defenses don’t stand a chance against even a lazy or novice prosecutor. Even still, the court of public opinion generally only seeks financial controls on the defense. For some unknown reason, people don’t hold believe the judicial branch offers the same type of government overreach that the executive and legislative branches do.

As for Irwin County, the taxpayers have already been billed for selecting jurors from a pool of 600 and subpoenaing more than 100 witnesses. They’ve funded pre-trial hearings, a related trial for a co-defendant, and, of course, 14 years of investigations. Is the defense’s request, in an effort to fulfill constitutional and state law obligations of a fair trial and adequate representation, really too expensive if it closes the book on a case that has been open for a decade and a half?

Don’t get me wrong. I’m not advocating that we reinvent the legal system so as to foot the bill for both the prosecution and the defense in every case. For a number of reasons -morally and ethically-, that as the default does not make sense. But we don’t fund public defenders because it makes people feel good and helps attorneys gain experience.

From the perspective of fiscal responsibility, it would appear that awarding funds for experts would be more cost effective than retrying the case because of inadequate representation, something the state’s highest court has already signaled would be a large possibility.

Most importantly, would your opinion of support services for indigents be different if the case were not one that was plastered on headlines for the last two years? (If your answer is ‘yes,’ go back to the beginning of the article and start over.)

This is a bigger deal than the Grinstead case. As Justice Bethel said in Monday’s ruling: it presents  “difficult, complex and important constitutional questions for which there is no controlling legal precedent.” Irwin County’s Superior Court judge will now be charged with deciding whether or not the state, which has a vested interest in defeating the defense, must financially assist the defendant with having a better defense.


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