“Light Him Up Before the Jury Goes Home”

How can Georgia let a prosecutor tell a judge to kick a defense lawyer off a capital murder case?

In November 2007, Jamie Weis was scheduled to go on trial for his life when—at a prosecutor’s behest—the judge kicked his lawyers off his case. They were experienced capital defenders who’d tried for more than a year to work on Weis’ defense. But when the state stopped paying them, and they pointed out that they could no longer afford to adequately defend their client, they got the boot.

The trial judge replaced them with lawyers who told the judge they lacked the training, time, and money to prevent Weis’ execution. And when he finally got his original attorneys back and argued that his right to a speedy trial had been violated, the state blamed him for causing the delays and pressed on with prosecution. In a controversial 4-3 decision last March, the Supreme Court of Georgia sanctioned this perverse abuse of prosecutorial power. Will the U.S. Supreme Court now hear Weis’ case?

Police in Pike County, Georgia, arrested Weis in February 2006 for the robbery and murder of his elderly neighbor, Catherine King. When Fayette County District Attorney Scott Ballard announced his intention to seek the death penalty the following August, Georgia’s Public Defender Standards Council, the state agency charged with providing financial support to death penalty defense teams, contracted with two seasoned capital defenders, Robert Citronberg and Thomas West, to represent Weis. That’s been standard practice since 2005, when Georgia created the council to oversee the defense of indigent defendants facing the death penalty.

Citronberg and West started an in-depth investigation into Weis’ life and family back in West Virginia. They were looking for mitigating evidence—facts about Weis’ childhood or mental condition that might persuade a jury to spare his life if he were found guilty. The Supreme Court has ruled that capital defense lawyers have a constitutional obligation to conduct such a mitigation investigation.

But after six months, the Georgia Public Defender Standards Council told Citronberg and West there would soon be no more funds to do the work. They could no longer afford to conduct a rigorous investigation, recruit expert witnesses, or pay for a mitigation specialist. The lawyers filed motion after motion asking Judge Johnnie Caldwell to postpone until funds were available. But the money never came. The council had completely burned through its budget defending another man—infamous Atlanta courthouse killer Brian Nichols, who escaped custody during a rape trial and shot the judge and a court reporter in open court. Ever since Gideon v. Wainwright, the landmark 1963 Warren Court case, states have borne the burden of providing lawyers for defendants who cannot afford counsel. But as the costly Nichols prosecution dragged on, Georgia couldn’t afford to pay for other cases. The state’s entire capital defense system ground to a halt, affecting Weis and 70 other defendants—virtually every capital case in Georgia.

To keep his case against Weis afloat in spite of the funding mess, D.A. Ballard called on Judge Caldwell to remove Citronberg and West from the case. The prosecutor wanted the veteran capital defense attorneys replaced with a pair of lawyers of his choosing—lawyers from the woefully overburdened local public defender’s office. Although the new pair were salaried public defenders and would be paid for their services, they too lacked the money to hire the additional experts and investigators that a death penalty trial demands. One of the lawyers was not even certified to handle a capital murder trial and was already handling 416 other cases. Both told the judge that “even if funds were available,” they didn’t have the time and expertise to “perform adequately”—so much so, they argued, that to keep them on the case would violate Weis’ right to due process.

This is not normal. It’s one thing for the state to assign a public defender at the outset of a trial without the defendant’s input and quite another to take away his lawyer once he or she has a firmly established relationship with the client. And to give the prosecutor carte blanche to handpick his new opponents, because of a state funding crisis—well, that’s just unconscionable. But Caldwell did the D.A.’s bidding. He took away Weis’ first team of lawyers even though the new ones filed three separate motions to withdraw. Weis asserted his right to keep his original team.

That’s when Stephen Bright appeared. Bright is president and senior counsel for the Southern Center for Human Rights and Georgia’s unrelenting advocate for poor defendants facing the death penalty. (He also teaches at Yale Law School.) He has been involved in a number of cases about the right to counsel in Georgia over the last two decades, and he has grown accustomed to some officials’ dismissive attitude toward due process. But Weis’ situation struck him as particularly outrageous. To Bright, the prosecution’s shenanigans demonstrated just “how fragile the right to counsel is.”

In April 2008, Judge Caldwell relented—after Bright and other pro bono lawyers took the emergency step of filing a petition for mandamus against Caldwell, asking the Georgia courts to order him to reinstate Citronberg and West. But Georgia’s budget problems hadn’t been fixed, and the Standards Council provided no money for Weis’ defense. For more than a year. In June 2009, even though there had been no funding for the case for two years, Judge Caldwell set trial for August. It was not until July that the council finally parachuted in and agreed to provide funding. And even then, it was less than half the amount that the council and Citronberg and West had agreed a year earlier would be necessary to try the case. As Bright later told the justices of the Georgia Supreme Court, “That’s no adversary system. That’s a joke.”

In all, while prosecutors worked unhindered to build their case against him, Weis had six months of legal representation over the three-and-a-half years before his trial. While he waited, his mother died. She was a key witness—she knew facts about Weis’ life that might have swayed jurors to reduce his sentence to life without parole. The Sixth Amendment guarantees that “the accused shall enjoy the right to a speedy and public trial”; Citronberg and West argued that the state had violated it, as well as Weis’ right to counsel.

In ruling on the speedy trial claim, (the test comes from the Supreme Court case Barker v. Wingo), the Georgia Supreme Court conceded that a delay of a year is “presumptively prejudicial.” But the justices blamed Weis for the delay. According to the majority, the problem wasn’t Georgia’s refusal to fund his defense, but his refusal to accept new lawyers. In dissent, Justice Hugh Thompson argued that the majority had dealt a crushing blow to the rights of indigent defendants by permitting the state “to fully arm its prosecutors while it hamstrings the defense and blames [the] defendant for any resultant delay.”

In May, Citronberg, West, and Bright petitioned the Supreme Court to hear Weis’ case. To hear a case, the Supreme Court often looks for a split in the lower courts. There’s one here: Once an attorney-client relationship has been established, most states grant poor defendants the same right to continued representation as defendants who pay their lawyers. Georgia and Louisiana do not. Weis’ team also wants the Court to decide whether a state’s lack of funding for defense counsel constitutes the kind of “systemic breakdown in the public defender system” that could help defendants prove a speedy trial violation.

The Supreme Court should hear this case. But even if it does, there is another troubling dimension that the justices can’t touch—the bald lack of justice in Fayette County, nicknamed “Fayette-nam” for its ironfisted judges and prosecutors. Ballard, the same D.A. who is prosecuting Weis, recently wrote a column in the Fayette Daily News about Judge Caldwell and his colleague Paschal English (onetime Survivor contestant “Pappy”). Caldwell had just sent away two drug offenders for a combined total of 50 years. Ballard bragged about the atmosphere in court that day as the judges were “knocking heads”: 

This was becoming a lot of fun. And it wasn’t even 10 o’clock on Monday yet. All those fools who had wanted their day in court had envisioned something far different from this. … If you see a guy sprinting in the opposite direction from the Fayette County Courthouse, let me know. We’ve still got time to light him up before the jury goes home.

It gets better: Caldwell and English have recently resigned amid allegations of judicial misconduct (one part of the case is called Crook v. Crook). And now Ballard is trying to take one of the seats that their departures have left open. The U.S. Supreme Court can’t stop Ballard from ascending to the bench. But they can send Georgia the message that prosecutors can’t get rid of defense lawyers who are just trying to do their jobs.

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