When I began the practice of law in 1948 and until well after I went on the bench in 1966, the attorneys of the circuit were (on a rotating system) appointed to represent indigent defendants.

In every circuit, outside the six largest cities in the state, the lawyers all had some criminal practice and participated in appointed cases. This effectively divided the defense of indigents among the local lawyers at no attorney-cost to taxpayers. For many years this was considered a duty of the lawyers (to the state and the courts) and they were not paid.

Expenses of the defense were approved by the court. Georgia’s indigent defense system evolved through a system for paying appointed attorneys, hourly compensation approved by the court, with many circuits funding their separate indigent defense office. This was extremely burdensome on counties, particularly with a major case.

A major complaint of counties in indigent cases was that the defense counsel spent enormous sums that were excessive and could not be controlled.

The taxpaying public (and this judge) is not pleased to see vastly more expensive defenses, afforded indigent defendants, than the average (even those with above average income) Georgia citizen can afford. Excessive use of psychiatrists and expert witnesses is a prime example.

Even before the present system, indigent defense advocates objected to any limitation or control over their defense spending.

A cry arose over the years for state-funded, specially trained counsel, an Indigent Defense Council. Finally created, while good in principle, it has been virtually impossible to fund properly.

There are 31,900 lawyers licensed to practice in Georgia. Most of them do civil practice alone, or the majority of their practice is civil.

There should be a method for using this vast legal talent to alleviate the critical lack of representation for indigent defense.

You say: we can’t use these civil lawyers, untrained in criminal cases, to represent indigents. Unfair? Unconstitutional?

In hundreds of cases every month, some (non-indigent) person accused of a crime hires an attorney who has practiced law (civil and criminal) for one, two, three, four, five years. (They don’t hire Bobby Lee Cook because he is too expensive for the average case) Are indigent cases entitled to better defense counsel than the average Georgia taxpayers?

Let’s examine this. Every graduate from a law school has had to pass a course in criminal law, criminal procedure and constitutional law. He or she has also had to pass these subjects in a State Bar admissions exam. This certifies them to practice civil and criminal law in this state. As we were in the 1950s and 1960s. It does not mean they are quite ready to handle all criminal (or civil) cases. At what point do we tell a new licensed attorney

that he can handle misdemeanor cases, when he can handle felony cases, when he can handle major criminal cases? Only in capital punishment cases do we do this.

Only in indigent defense cases (taxpayer funded) do we require the most experienced attorneys, with capital punishment experience for capital cases (the average taxpayer could not afford these without going bankrupt).

Some perspective on my thoughts: Many years ago, Douglas County Courthouse, Douglasville, the jail cases were brought to the court for appointment of lawyers for those who could not afford their own.

Palmer Ansley, an attorney from a fine law firm in Atlanta, and an excellent civil trial attorney, was sitting in the courtroom with other attorneys, waiting for the civil calendar to be called.

When I appointed him to represent one of the jail cases accused of a low-grade crime, he was in shock. Seeing I was serious, he went outside to confer with the defendant, and I then instructed a local attorney, experienced in criminal cases to go and assist him.

After consultation with the accused and then the district attorney, Ansley had an agreement for the defendant to plead and have a recommended sentence of probation and fine to be paid during his probation.

Remembering Ansley (a top of the line civil lawyer), I have always felt that, with very little preparation, refreshing himself on criminal procedure and criminal statutes, he could represent a defendant in most criminal cases (except capital cases). With his extensive courtroom experience he could soon easily try criminal cases with competence equal to the general practice lawyers in the circuit who had practiced five years or so.

A proposed solution to relieve the underfunded indigent defense in Georgia is to require all licensed lawyers below a certain age to devote a minimum number of hours to working with the circuit public defender in indigent cases.

The Georgia Public Defender Standards Council can devise a system of Circuit Public Defenders assigning lawyers to indigent cases, accumulating a number of criminal case hours similar to continuing education hours now being required.

My friends at King & Spalding, and other large firms will scream, but special conditions will allow law firms to allot the indigent defense obligation to their younger members. They already do much charity work. Let me note here that large law firms all do much pro bono and all types of charity work, as do most lawyers in the state. Deference to older lawyers should be made, including a cut off date by age, maybe 60 or 65.

In looking at the lawyers here in Polk County, it would not seem too complicated, or burdensome, for the lawyers to be assigned a portion of the indigent defense cases, beginning with the less serious, and taking enough of the burden to make up for the cut in funds for indigent defense caused recently by cuts in all state departments. This plan could handle many lesser offenses, allowing the Circuit Public Defenders Office to take care of the most serious offenses.

It is my feeling that a plan can be designed so as not to be a huge burden on lawyers. I know lawyers already devote as much, or more, time to charitable causes as any other group, and they would respond to this plan.

Footnote: Capital Punishment cases are a different category.

I find it disgraceful that we spend $500 per hour for a psychiatrist to spend a hundred hours to observe someone who obviously knows “right from wrong” and another $450 per hour to check his spanking as a youth — all at taxpayer expense.

Anti-capital punishment attorneys are all quite good. But their purpose in all capital cases is to make the case so long and expensive that the state will abandon the death penalty and accept life imprisonment. Long range their hope is to make enough capital cases so expensive that the public will abandon capital punishment.

The State Bar should study methods to curb huge taxpayer funded expenses in indigent cases, that are more than the average working taxpayer can afford. These are hurting the courts and detracting from the public’ view of the courts and the indigent defense system.

More specifically: The Brian Nichols defense cost what? $3 million? They were allowed to pay psychiatrists $500 per hour and $450 per hour for many hours of consultation and testimony. Unfairly depleting the indigent defense system of much needed funds to use on hundreds of other deserving indigent cases. A disgraceful waste of funds.

Illustration: Suppose an “above- average” Georgia taxpayer is charged with the same crimes and is not indigent. Because he has a home valued at $250,000 and has a salary of $80,000 per year, a wife and two children. He can probably deplete most his resources and hire lawyers comparable to those who represented Nichols. But forget about his being able to authorize his lawyers to hire a team of psychiatrists such as Nichols had. And the state would not pay for them. There is something wrong with this scenario.

Dan Winn, of Cedartown, is a senior judge of the Superior Courts of Georgia.