Protect Indigent Defense Funding

Indigent defense is never a popular topic with lawmakers or the public. The concept of the government paying to help criminals go free runs contrary to conservative values. However, indigent defense is closely aligned with the most essential of conservative values: liberty and the regulation of government power.

The criminal justice system in the United States is the best anywhere. When our government chooses to accuse a person of a crime and restrict his or her liberty, there is a process the government must follow. Citizens, in the form of a jury, make the decision. While the government is represented by a lawyer to present its case, the accused is also represented a lawyer to challenge the government. When the two sides are matched, ultimately what the jury hears is the truth.

Yet many in this country are unable to afford to hire a lawyer or prepare a defense. Crime, for the most part, mainly affects the poorer members of our society. A society where liberty and justice is only available to those who can afford it runs contrary to core conservative values. It is why the effective assistance of counsel is guaranteed to all under the Sixth Amendment to the United States Constitution ever since Gideon v. Wainwright.

Our system is designed to protect its citizens from an overzealous government. If government is able to run roughshod over the poorest and weakest members of society, our society cannot be free. The men and women who work in the public defenders office and represent indigent persons accused of crimes act as a check and balance to government power on a daily basis.

However, indigent defense comes at a significant cost to the government. In this day and age of government cutbacks, the Georgia Public Defender Standards Council must struggle like every other government agency for funding.

In 2004, the General Assembly created the Georgia Public Defender Standards Council to ensure effective counsel for the poor. In order to fund this constitutional mandate, the Legislature also imposed an additional $15 charge on civil court filing fees. While these fees have generated between $41 million and $44 million annually, the state has only budgeted between $35 million to $38 million for indigent defense. This year, Gov. Nathan Deal has proposed a budget of $40 million for indigent defense. There is no guarantee that this level of funding will continue in future administrations.

Rep. Rich Golick (R-Smyrna), chairman of the House Judiciary Non-Civil Committee, has proposed a constitutional amendment to ensure funding for indigent defense. HR 977 provides that the funds that collected from the civil filing fee add-on be used to support indigent defense and not other budget items. This resolution has made it out of committee and is going to the floor of the General Assembly. A two-thirds majority is required to approve a constitutional amendment and send it to the general public for a vote. All those who support liberty and justice for all should contact their representative to support this important amendment
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Changes to the Garnishment Laws: Corporations Need Not Answer Through A Lawyer

On Feb. 7, Gov. Nathan Deal signed HB 683 in to law, effectively eliminating the requirement that corporations have a lawyer represent them to answer a garnishment.

This new law is lauded as removing an unnecessary regulation on business. While this change to the law does help cut some amount of bureaucracy and expense for business, but it is not without some pitfalls. A garnishment is a legal proceeding and if it not handled properly can come with some very expensive consequences for business.

Garnishments are a routine part of operating a business. It is a legal process that allows a creditor who has received a judgment in a court to have the money taken from that person’s wages or bank accounts. Employers and banks respond to garnishment proceeding for creditors collecting from their employees and customers as a part on a regular basis. Most of the information required for a response to a garnishment is administrative in nature, such as payroll information and account balances. These tasks can and in the past have been handled by bookkeeper or payroll clerk. In fact, this is how most businesses have handled garnishments in Georgia up until 2011.

On Sept. 12, 2011, the Supreme Court of Georgia approved a formal advisory opinion of the State Bar of Georgia's Unauthorized Practice of Law Committee that interpreted the current law, as it is written, to prohibit non-lawyers from answering garnishments on behalf of corporations. This ruling had a profound effect on employers and banks that are most likely to answer garnishments. Justice David Nahmias, following the recommendations of the State Bar of Georgia on the issue, recommended that those interested should seek to modify either current Georgia State Law or the Court Rules.

HB 683 did just that, giving clerical workers and agents the authority to file a garnishment on behalf of the corporate entity. While this comes as a great relief and savings to business, garnishments should not be seen as just routine paperwork. A garnishment is a legal proceeding pending in a court, and as such, as procedures that must be followed. Failure to follow those procedures and meet the specific deadlines can result in the creditor taking a judgment against the employer or the bank for the amount owed to the creditor. This could have the effect of the employer or the bank taking the place of the original debtor. While there are some provisions in the law that give the corporation some relief, those measures are time sensitive and procedurally driven and may cost the creditor out of pocket as well.

The law allows for an employer or bank to deduct up to $50 for legal fees to answer a garnishment. While this probably will not cover the cost of hiring an attorney to answer the garnishment, it may cover the cost of getting some sound legal advice to make sure the garnishment is answered correctly.

 

Cracking the DUI Code

There is a controversy brewing in how law enforcement makes cases for driving under the influence, and that controversy is coming to a head. For a number of years, criminal defense lawyers have been mounting an attack on the breath testing device used in Georgia to detect the level of alcohol in the blood stream of suspected drunk drivers. Now, defenders are closer than ever to cracking the code.

At the heart of the controversy is the Intoxilyzer 5000, the device approved by the  state as the official breath testing device since 1995. The device is manufactured by CMI, Inc. a company out of Kentucky, and is used in several jurisdictions as well as government agencies and private firms. The device is designed to scan a sample of deep lung air with ultraviolet light and detect the amount of alcohol in the air. Internal software called the source code calculates the amount of alcohol in the bloodstream.

While the base models of the Intoxilyzer 5000 all work on the same principle, the model used in Georgia is unique in its features. CMI manufactures the device to meet specifications selected by theGeorgia Bureau of Investigation Division of Forensic Sciences and selects some features while rejecting others.

The device is supposed to be equipped with certain failsafes to prevent false readings. These include detection for radio frequency interference, a means to rule out mouth alcohol as opposed to deep lung breath alcohol, and filters to rule out substances that could mimic alcohol in the test. Some of the options rejected by the state include a feature that allows the device to capture and seal a breath sample for independent testing as well as the ability to download results to keep a database of test results.

Defense lawyers have been skeptical of the Intoxilyzer 5000 since it was proposed by the GBI. On his website, noted Atlanta DUI lawyer William "Bubba" Head said that the device was originally manufactured in 1982, before the advent of cell phones and other devices that cause low level radio frequency and effect the accuracy of the test results. Defense lawyers have also noted other problems over the years to include issues with the volume of air required to provide a sufficient sample and the effects that some substances (smokeless tobacco, gum or mints) in the mouth have on (the test's) accuracy.

One of the biggest red flags to defense lawyers is the extent which CMI has gone to protect is proprietary device. All repairs and maintenance on the Intoxilyzer 5000 must be done by the manufacturer at its facility in Kentucky. Nobody in Georgia knows how the device works, not even the technicians who are charged to inspect, calibrate and certify each machine every quarter. Defense lawyers want to get ahold of the device to see if it works the way the manufacturer claims. However, CMI refuses to sell an Intoxilyzer to any third party.

At the heart of the controversy is the source code or the computer program that operates the Intoxilyzer. Thomas Workman, Jr, an engineer and computer programmer from Massachusetts with experience working for Xerox, Texas Instruments, Hewlett-Packard and IBM device emulation, contends that the source code for the Intoxilyzer 5000 consists of some 60,000 lines of code, making it highly probable there is a flaw somewhere in the programming. This has prompted defense lawyers to subpoena the computer program that runs the Intoxilyzer as well as the engineers that write the code. This is not so simple.

Because CMI and its employees are located in Kentucky, they are not subject to direct subpoenas from the Georgia courts. There is a two step process. First, the courts in Georgia must find that the out of state witness is material or necessary to the case. Second, the court in Kentucky must order the witness to appear in Georgia. CMI and prosecutors have fought these "source code motions" vigorously here in Georgia as well as in other states. In Georgia, the Prosecuting Attorneys Council, an agency that assists and coordinates the various prosecuting agencies throughout the state, has an attorney who is a resource to help prosecutors fight these motions.

Last year, defense lawyers received some help from the Supreme Court of Georgia on this issue. In June 2011, the Supreme Court issued opinions in Yeary v. State and Davenport v. State, which addressed the issue of materiality of the source code and gave the green light to forward the subpoenas on to the courts in Kentucky. Before long, defense lawyers will crack the DUI code and be able to put the Intoxilyzer 5000 to the test.  

To what end will the production of the source code bring? While prosecutors who stand by the reliability of the Intoxilyzer 5000 contend that it is a bit like the dog who catches the car, defense lawyers contend that the code will expose the flaws in the device. For many, this is an issue that goes beyond the prosecution of driving under the influence. It goes to transparency of government. If the government is going to use a computer program to arrest, convict and incarcerate its citizens, the government should disclose its methods and means.