On Air Now

Listen Now

Weather

cloudy-day
80°
Showers
H 82° L 70°
  • cloudy-day
    80°
    Current Conditions
    Showers. H 82° L 70°
  • rain-day
    82°
    Today
    Showers. H 82° L 70°
  • partly-cloudy-tstorms-day
    86°
    Tomorrow
    Chance of T-storms. H 86° L 71°
Listen
Pause
Error

News on-demand

00:00 | 00:00

Listen
Pause
Error

Traffic on-demand

00:00 | 00:00

Listen
Pause
Error

Weather on-demand

00:00 | 00:00

Local
FUNDING INDIGENT DEFENSE: Spotlight on Georgia and The Tara Grinstead Murder Trial
Close

FUNDING INDIGENT DEFENSE: Spotlight on Georgia and The Tara Grinstead Murder Trial

FUNDING INDIGENT DEFENSE: Spotlight on Georgia and The Tara Grinstead Murder Trial
Photo Credit: Joe Raedle/Getty Images
MIAMI - FEBRUARY 02: A judges gavel rests on top of a desk in the courtroom of the newly opened Black Police Precinct and Courthouse Museum February 3, 2009 in Miami, Florida. The museum is located in the only known structure in the nation that was designed, devoted to and operated as a separate station house and municipal court for African-Americans. In September 1944, the first black patrolmen were sworn in as emergency policemen to enforce the law in what was then called the "Central Negro District." The precinct building opened in May 1950 to provide a station house for the black policemen and a courtroom for black judges in which to adjudicate black defendants. The building operated from 1950 until its closing in 1963. (Photo by Joe Raedle/Getty Images)

FUNDING INDIGENT DEFENSE: Spotlight on Georgia and The Tara Grinstead Murder Trial

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. 

Read More

News

  • Antonio Arnelo Smith was walking along a Georgia roadway in February when the first Valdosta police officer approached him. As Officer Dominic Henry questioned Smith about panhandling reported outside a nearby Walgreens, a second officer, Sgt. Billy Wheeler, came up behind Smith and, without warning, placed him in a bear hug. Moments later, Wheeler slammed Smith to the ground. “Oh my God, you broke my wrist!” Smith, 46, cried out as two more officers arrived and helped Wheeler hold down Smith. As Smith cried and screamed in pain, Wheeler advised him he was under arrest for outstanding felony warrants. The only problem: Wheeler had the wrong man. The entire interaction was captured on body camera footage. The allegations against Wheeler and the other officers are laid out in a federal lawsuit Smith’s attorney filed last month. “When you see that video, you can’t help but say this is a travesty,” Nathaniel Haugabrook, one of Smith’s attorneys, told The Associated Press. “Nobody should be done that way.” The civil rights lawsuit names as defendants the four officers involved in the stop, the police chief, the mayor, city council members, the city itself and the police department. Haugabrook said he believes his client was stopped simply because he is Black. Though Henry is Black, Wheeler and the other two officers named in the suit are white. “Obviously it has some racial tones to it,” he told the AP. Valdosta police Chief Leslie Manahan argued in a statement last month that officers did their jobs and, despite no charges being filed against Smith, that they had the right person regarding the panhandling. “We did have the right guy stopped that was causing the problem at Walgreens,” Manahan told WALB in Albany. “It’s just unfortunate he was not the one with the felony warrants.” She cited miscommunications in radio traffic as the cause of the problem. “Those are things that yes, we can work on that as an agency, and work to continue training our officers better and better communication skills with each other,” the chief said. A Black man in a hoodie Smith’s violent encounter with police stayed below the public radar until Haugabrook filed the federal lawsuit June 19. Valdosta police officials issued a lengthy statement a few days later, along with one officer’s body camera footage. That footage, taken from Wheeler’s camera, fails to show the actual takedown of Smith because when Wheeler placed him in a bear hug, Smith’s back was pressed against the lens. The AP reported that additional body camera footage was not released until after the Valdosta Daily Times published footage obtained from Haugabrook. See the initial body camera footage released by Valdosta police officials below.  Read the Valdosta Police Department’s entire statement here.  Smith was at Walgreens around noon Feb. 8 awaiting some money his sister was sending him via Western Union, according to a March 20 letter, called an ante litem notice, Haugabrook sent to Valdosta city officials warning of the impending lawsuit. Both Henry and Officer Rachel Hinton had gone to the pharmacy in response to the call about a panhandler bothering customers. Each would encounter a man fitting the description given by employees: a Black man wearing a brown hoodie, according to police. Court documents state that Hinton stopped a man for questioning on the north side of the pharmacy. She asked Henry to check the west side of the building for anyone else who could be the alleged panhandler. En route to the side of the building, Henry encountered a customer who told him the man had walked south out of the parking lot. Read attorney Nathaniel Haugabrook’s ante litem notice to Valdosta city and police officials below.  “While (Hinton) was running the identification provided by the (first) subject, it was learned that he had active felony arrest warrants,” Valdosta police officials said. “This police band communication between the first officer and dispatch was overheard by other officers arriving at the location. “At approximately same time, (Henry), on the opposite side of the store, located (Smith) walking in a southern direction away from Walgreens. The officer made contact with the subject, explaining to him that he was investigating a report of a suspicious person at Walgreens.” Smith gave Henry his identification and explained why he was in the area, according to the letter submitted with the federal lawsuit. In the video, Smith questions why he was stopped and appears upset but does not appear to pose a threat to the officer. “I’m waiting for the Western Union,” Smith tells Henry. “Call my sister right now in Florida. You have a cellphone. Call her.” “Call who?” Henry asks. “Call my sister in Florida,” Smith responds. He pleads with Henry: “Don’t do this.” ‘Oh my God, what are you doing?’ At that point, Wheeler, who had quietly come up behind Smith, grabs him by both arms from behind and puts him in a bear hug. Wheeler never announced his presence to Smith. “What are you doing?” a startled Smith says. “Oh my God, what are you doing?” Wheeler tells him to put his hands behind his back, a command he cannot follow because his arms are pinned at his sides. “Put your hands behind your back like you’re told,” Wheeler says, his face resting on Smith’s back as he holds him in place. A bewildered Smith again asks what Wheeler is doing, crying out as the officer picks him up and slams him onto the ground. Moments later, as the other two officers, identified in the lawsuit as Patrick Barrett and Hudson Durden, try to help get Smith into handcuffs, Smith cries out that Wheeler has broken his wrist. “Yeah, he might be broke,” Wheeler is heard saying. Watch the body camera footage obtained by The Associated Press below.  About a minute later, the officers remove the handcuffs and call for an ambulance. Smith questions why he is being arrested. “We have a warrant for your arrest,” one officer tells him. Henry corrected the officer, indicating that the man with active warrants had been taken into custody by Hinton. “The other guy is over there,” Henry says, pointing toward the pharmacy. “They pointed out two different people. They got the guy with a warrant.” He points down at Smith. “This guy, I just got contact with him,” he says. The video shows that the officers let Smith up off the ground. According to court documents, he left before the ambulance arrived. “As the video clearly demonstrates, each of the officers’ facial expressions and comments confirm that a grave and serious error had taken place when Sgt. Wheeler arrested and slammed Mr. Smith to the ground,” Haugabrook’s letter to Valdosta officials read. “Although an ambulance was called to the scene, Mr. Smith, scared and wanting to get away from the officers, refused treatment and walked away from the scene holding his arm.” He later went on his own to South Georgia Medical Center, where doctors confirmed that both his radius and ulna, the long bones of the forearm, were fractured at the wrist, court records show. According to Haugabrook, the fractures did not heal properly because Smith was unable to find transportation to the specialist he was referred to. Inconsistencies Smith’s lawsuit accuses Wheeler and Henry of falsifying their reports on the incident. Wheeler’s report stated that Henry asked Smith to put his hands behind his back, which the video proves was not the case. The statement from Valdosta police officials also contains inconsistencies with the video footage that paint Smith’s encounter with the officers in a false light. “The responding officer (Wheeler) approached the subject and advised him to place his hands behind his back,” the statement read. “The subject did not and began to resist by pulling his arms forward and tensing his body.” The video shows that while Smith questioned what Wheeler was doing, he did not try to resist or pull away. The city’s statement also stated that officials there are “fully committed to transparency,” though at that time, they released only a portion of the existing body camera footage. The lawsuit argues that neither Henry nor Wheeler had justification for physically restraining Smith because they had not determined whether he had committed a crime or if he had outstanding warrants. At one point in the footage, Wheeler asks Henry whether Walgreens wanted to obtain a criminal trespass warrant against Smith, the lawsuit states. “I don’t know. I had, I hadn’t even asked them,” Henry responds, according to the document. Manahan defended Wheeler’s actions to WALB last month. “He still thinks the subject has felony warrants. When you are dealing with someone with felony warrants, you kinda want to move quick, really for the safety of everyone involved,” Manahan told the news station. Read Antonio Arnelo Smith’s federal lawsuit below.  Wheeler has been on the Valdosta police force for nearly 23 years, the lawsuit states. In that time, he has taken “use of force” courses annually. “Since 2017, Defendant Wheeler has also received training in the Governor’s Initiative – De-Escalation Options for Gaining Compliance,” the document states. Haugabrook is arguing that the Valdosta Police Department routinely receives calls about suspicious people, many of whom have committed no crime. In those situations, officers’ actions are restricted by constitutional rules. “Here, Defendant Wheeler violated those rules whereas Mr. Smith had committed no crime that would justify his arrest. Defendant Henry, the lead investigating officer on the scene was simply checking Mr. Smith’s identification and questioning him to determine if he was the suspicious person complained about at Walgreens,” the lawsuit states. “Even if Mr. Smith had been the suspicious person, the consequences would have been a criminal trespass warning to stay off Walgreens’ premises.” The lawsuit claims illegal seizure, unlawful detention, excessive force, assault and battery by excessive force, false arrest/false imprisonment, negligent hiring and training on the part of the department, negligent and intentional infliction of emotional distress and conspiracy to violate Smith’s rights. Smith also accuses Henry of failure to intervene. “Defendant Henry had a realistic opportunity to prevent Defendant Wheeler from grabbing and slamming Mr. Smith to the ground. It would have been as simple as holding out his hand or saying, ‘Stop,’ the lawsuit states. “Defendant Henry did neither.” The lawsuit does not specify the monetary damages being sought. In the March letter to Valdosta officials, however, Haugabrook presented a settlement demand of $700,000. Haugabrook is seeking more than money for his client, however. According to the AP, the attorney wants to see meaningful change in the Valdosta Police Department. “We will cross the next bridge as it comes and hopefully we get this matter solved in a manner that prevents these sorts of mistakes, this sort of conduct from happening in the future,” the attorney told WALB.
  • Monday evening was a “peaceful” experience for the Georgia National Guardsmen who have been dispatched in response to last weekend’s surge of violence in Atlanta and the ransacking of the Georgia State Patrol’s headquarters, according to their commander. So far, they have not made any arrests and no Guardsmen have been injured.  Riding in Humvees, the troops — who are armed — will be out on duty again Tuesday evening in keeping with the emergency declaration Gov. Brian Kemp issued following the fatal shootings that left four dead in Atlanta, including an 8-year-old girl. Set to expire July 13, Kemp’s order empowers the Guardsmen to apprehend lawbreakers.  Related: Kemp to deploy 1,000 National Guard troops after violent weekend On Monday evening, the Guardsmen stood watch at the state Capitol in downtown Atlanta, the Governor’s Mansion in Buckhead and the recently vandalized Department of Public Safety building in southeast Atlanta. The troops are seeking to free up police for other law enforcement duties, said Maj. Gen. Thomas Carden Jr., Georgia’s adjutant general. Citing security concerns, Carden declined to say precisely how many Guardsmen have been deployed, though Kemp’s order calls for up to 1,000.  “At the end of the day,” Carden said, “we are primarily staffed, trained and equipped to protect our nation – our citizens – against foreign adversaries. It is disappointing to me that once again we are having to use our personnel, equipment and training to protect Americans and their property from other Americans.”  At least 93 people were shot in Atlanta between May 31 and June 27, roughly double the number from the same span a year ago. On Sunday, a crowd of at least 60 busted out the windows of the Georgia State Patrol headquarters, and someone threw a homemade grenade into a supervisor’s office in the building, authorities said.  >>Read MORE on AJC.com.
  • An 80-year-old golfer was accidentally struck by a bullet intended for a groundhog in Lomira, Wisconsin Monday. Law enforcement officials are describing the event as an accidental shooting. When a 50-year-old man was shooting at a groundhog on his property, one of several rounds that he fired hit a tree and then struck the golfer while he was on the course at.The Golf Club at Camelot, according to WITI. The golfer was taken to a nearby hospital and his injuries are not considered life-threatening. The Dodge County Sheriff, Dale Schmidt, urged people to be cautious when using firearms. “When shooting firearms, it is always very important to know your target and beyond. Firearms are capable of shooting long distances and it is always necessary to have a backstop that can sufficiently stop a bullet from traveling beyond that which is desired,” Schmidt told WITI. Police are still investigating the incident.
  • You may be seeing social media posts promoting #BlackOutDay2020, but what is Black Out Day? Here are five things to know. 1. Blackout Day is persuading Black Americans to not spend money today, to show their economic power. If something needs to be purchased, the movement urges spending money at Black-owned businesses, CNN reported. It’s called a “day of solidarity in America where not one Black person in America spends a dollar,” unless it is spent at a Black-owned business, USA Today reported. Nielsen reports that Black Americans spent more than $1 trillion in 2018, according to CNN. 2. The day was promoted by Calvin Martyr, a social media personality/activist, for about two months. 3. Martyr and those taking part are hoping the day helps to end institutional racism that they have said lead to the deaths of Black Americans, CNN reported. It started after the death of Ahmaud Arbery and Breonna Taylor, but before the death of George Floyd. 4. Martyr likened to the spending boycott to the 1955 Montgomery bus boycott when the Black community refused to ride buses until they were allowed to sit wherever they wanted. 5. My Black Receipt is a related movement that urges for people to upload receipts of money spent at minority-owned businesses, USA Today reported.
  • The U.S. Small Business Administration and the Treasury Department on Monday released loan-level data on each of the more than 4.9 million loans made under the government’s Paycheck Protection Program. The program was established in March by the CARES Act, aimed at shoring up small businesses struggling amid the coronavirus pandemic. Authorities said the funds were meant to give business owners incentive to keep their employees on payrolls. Data released Monday includes the names of more than 660,000 businesses that received loans of $150,000 or more. A majority of the program’s beneficiaries -- about 80% -- asked for loans under that amount, with most seeking about $100,000, according to officials. >> See the full data released by SBA and the Treasury Department In a statement, Treasury Secretary Steven Mnuchin said that the program has helped to support 'more than 51 million jobs and over 80 percent of all small business employees.' Under the program, the government is backing $659 billion in low-interest business loans that will be forgiven if employers use the money on payroll, rent and similar expenses. Companies typically must have fewer than 500 workers to qualify. The Associated Press contributed to this report.
  • Atlanta’s fire chief has opted to self-quarantine pending the results of a COVID-19 test, one day after the city’s mayor announced that she tested positive for the virus.  Randall Slaughter is being tested for the coronavirus “out of an abundance of caution,” Atlanta Fire and Rescue spokesman Sgt. Cortez Stafford confirmed to AJC.com on Tuesday.  “He will also be in quarantine until his results return and will move forward based on those results,” Stafford said.  Atlanta Mayor Keisha Lance Bottoms on Monday announced that she tested positive for the virus.  “COVID-19 has literally hit home,” Bottoms wrote. “I have had NO symptoms and have tested positive.” — Please read more on AJC.com for updates.