If we don't learn from our mistakes, we are doomed to repeat them. Some wise forefather said something like that, and it is so true.
We must recognize that part of the root cause of the indigent defense problem is population. In other words, we are overrun with a problem for which there is no easy solution.
If we look back in our history, we will remember that Georgia started with just one appellate court, the Supreme Court of Georgia. Over time, the population of Georgia increased until the Supreme Court was overwhelmed with cases. So what did we do? We created the Georgia Court of Appeals, and the crisis was relieved. We reluctantly have been expanding our appellate judgeships ever since, but the appellate courts are, again, overwhelmed.
Now the same situation seems to exist regarding the indigent defense program. Of course, lack of necessary funds is clearly part of the problem as well as too many cases to handle by the existing staff.
So how do we properly handle the large number of indigent criminal defendants in our state? Well, a reasonable solution would be to place the indigent offices on the same economic level as the district attorney in each judicial district. But this is not going to happen in this century no matter how reasonable it may be. But we must be able to face up to the legal fact that the Constitution mandates assistance of qualified legal counsel to indigent defendants. It is not a choice. It is not voluntary. It is the law not to be subject to politics or to a watered down version.
Sen. Preston W. Smith, R-Rome, has put forth the argument that nothing in the indigent filing fee law prohibits the state from keeping part of the fees. Well, the other side of the coin is that nothing in the indigent filing fee law authorizes the state to keep part of the funds for other purposes. I think we should step back and consider why these fees were created. I understand they were enacted solely for funding a proper indigent defense program. The fact that the economy is in a deep recession is no reason to rob these designated fees, especially in conflict with the constitutional mandate. Granted, the indigent defense program must function within the financial limits of the monies generated by the filing fees.
But the main problem still is overpopulation. I believe that at least 70 percent of the outstanding criminal cases are conservative cases, misdemeanors and other low-profile cases. If we could quickly, equitably and professionally resolve these cases, we suddenly would solve the overpopulation crisis.
Mediation in criminal cases is the answer. It is being used in many states and for years in some. It works and moves the cases along in a proper manner. The Atlanta Dispute Resolution section of the Atlanta Bar Association has all the information on these programs.
I propose that:
• The mediation would be voluntary.
• The defendant would sign a form requesting a mediation procedure.
• The defendant would not waive any legal rights.
• The defendant would be given an opportunity to state his case personally, or through an indigent defense attorney, uninterrupted.
• No decision would be made unless both the state attorney and defendant agree to the decision, in writing.
• The mediation would be conducted at the jail with the use of video conference equipment, all as agreed to in advance.
I am convinced that a procedure along these lines would work.
Edward J. Henning is the founder of Henning Mediation & Arbitration Service Inc. Henning was an active mediator from 1975 to 2003, mediating more than 1,500 cases. He is a graduate of the University of Georgia School of Law (LL.B., 1954). He is a former chairman of the ADR Section of the State Bar of Georgia as well as a member of the American Bar Association Old War Horse Lawyers Club. Henning also was a founding partner of Henning, Chambers & Mabry, specializing in litigation and trial work from 1985 to 1995.
