The Georgia Supreme Court has ruled that the state can pay expert witness costs for indigent defendants who are using pro bono private defense lawyers.
In October 2005, Tara Faye Grinstead went missing. Her disappearance remained unsolved for two years until Bo Dukes reported that his friend Alexander Duke had confessed to the murder. Dukes eventually confessed to authorities that he was responsible for the murder. He was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with Grinstead’s death.
The Expert Witness Funding Dispute
Duke was initially represented by a public defender from the Tifton Judicial Circuit’s Public Defender’s Office. Seventeen months later, the public defender withdrew and new defense counsel filed an entry of appearance, indicating that they were representing Duke pro bono.
Defense counsel filed motions seeking funds from the county to hire an expert in false confessions and an investigator. The trial court denied those motions, ruling that the Indigent Defense Act did not require local government to fund such requests.
Duke’s attorney’s appealed and the Georgia Supreme Court heard oral argument on the issue in January 2021. Duke’s attorneys argued that he is entitled to receive funding under the United States Constitution, the Georgia Constitution, and the Indigent Defense Act (IDA) in order to protect his Sixth Amendment rights to counsel and a fair trial. The State argued that indigent defendants do not have a constitutional or statutory right under the IDA to state-funded investigators or experts.
The Georgia Supreme Court Ruling
The Georgia Supreme Court found that the trial court erred by adopting the Georgia Public Defender Council (GPDC) and circuit public defender’s interpretation that Duke is not indigent under the IDA because he is represented by pro bono counsel. It also found that the trial court erred by concluding that the IDA did not provide a mechanism for an indigent defendant represented by pro bono counsel to obtain state funds from the GPDC or the circuit public defender.
The court noted that the IDA defines an indigent person as “[a] person charged with a felony who earns or, in the case of a juvenile, whose parents earn, less than 150 percent 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, or, in the case of a juvenile, his or her parents or the parent’s dependents.”
The trial court had agreed with the GPDC’s and circuit public defender’s interpretation that Duke had “other resources that might reasonably be used to employ a lawyer” because he had obtained a pro bono attorney. The Georgia Supreme Court determined that this was incorrect. The plain meaning of “other resources” when used in content would mean resources other than earnings that would be usable to pay for a lawyer. In contrast, a pro bono attorney is one who represents a client without pay. The fact that a defendant has pro bono counsel does not mean that he has “other resources that might reasonably be used to employ a lawyer” for the purpose of determining indigence.
The court also noted that the IDA requires the director of the GPDC to “work with and provide support services and programs for circuit public defender offices and other attorneys representing indigent persons in criminal or juvenile cases in order to improve the quality and effectiveness of legal representation of such persons.”
The Georgia Supreme Court remanded the case to trial court to allow Duke to seek access to state-funded ancillary services from the GPDC or the circuit public defender.