The Henry County Public Defender’s office has dropped the ball in at least three criminal appeals. In each case, the defendant was convicted at trial and sentenced to prison. In each case, the conviction is over four years old. In each case, the Public Defender’s Office has not finished one of the basic, preliminary tasks in appellate practice: obtaining the trial transcript.
I don’t know exactly why this breakdown has occurred, but there are a couple of potential reasons.
Appeals are hard. Investigating a case, researching the law, and writing a good brief takes a lot of time. I just filed a brief in a case that took me, in total, over 300 hours. That case required an unusual level of work. The trial court record was very spare, a lot of dubious things that should have been in the trial court record were not, the trial court did not make my job easy, remand proceedings dragged on for four years, and the client is serving a life sentence for a non-violent crime. While that case was unusually time consuming, even straightforward appeals take scores of hours to do well.
Appeals are also hard to win. Even if you bust your but and do a great job, the chances of winning are slim. Each year, the Supreme Court of Georgia hears roughly 120 to 150 non-capital murder appeals and vacates only a few convictions. Winning an appeal creates yet more work. Unless the appellate court says the evidence was insufficient to support a conviction, the winning attorney has to start from square one and prepare for trial all over again.
In many Georgia appeals, the appellate attorney basically packs it in and gives up. It’s really easy to write a bad appellate brief: limit your argument to the sufficiency of the evidence, maybe throw in an evidentiary issue (which you won’t win because it’s reviewed for abuse of discretion and the state will argue harmless error) and move on to the next case. Oftentimes, the strongest issues are not apparent from the transcript because they involve matters defense counsel failed to investigate or the prosecution failed to disclose. In 2013, over 19,000 people began a Georgia prison sentence, yet the Court of Appeals awarded only four new trials based upon ineffective assistance of counsel. In a system where most public defenders are undertrained and overwhelmed and many private attorneys have little trial experience, this statistic is staggering. In that same year, the Court of Appeals did not order a single new trial based on the failure of the prosecution to turn over exculpatory evidence. The post-conviction process is doing a horrible job of identifying errors at trial, especially errors which can only be proven through hearing additional evidence in post-conviction proceedings.
Being a state-level public defender is an exercise in triage. Even if you work to the point of exhaustion, something is going to fall through the cracks and some of your clients are going to get walloped. Appeals are a poor investment of a public defender’s time because effort spent preparing for trial is much more likely to lead to victories and the payoff for trial work is much more immediate. I do not fault individual assistant public defenders for devoting their time to more productive work. I blame the system for underfunding indigent defense to the point where it is pragmatic for assistant public defenders to ignore their clients’ appellate rights.