Duke v. State

856 S.E.2d 250, 311 Ga. 135

• Court: Supreme Court of Georgia
• Decided: March 15, 2021
• Docket: S20A1522
• Status: Published

Opinion

311 Ga. 135 FINAL COPY

S20A1522. DUKE v. THE STATE.

MELTON, Chief Justice.

We granted interlocutory review in this case1 to decide whether

the trial court erred in determining that an indigent defendant in a

criminal case who is represented by private, pro bono counsel has

neither a statutory right under the Indigent Defense Act of 2003,

OCGA § 17-12-1 et seq. (“IDA”), nor a constitutional right to state-

funded experts and investigators needed to prepare a defense.

Contrary to the trial court’s conclusion, the IDA allows an indigent

defendant to obtain such ancillary defense services through a

contract between pro bono counsel and either the Georgia Public

Defender Council (“GPDC”) or the appropriate circuit public

defender. Consequently, we reverse the judgment of the trial court

in part, vacate it in part, and remand the case with direction.

1 This is the third time this Court has addressed pre-trial issues in this

case. See Duke v. State, 306 Ga. 171 (829 SE2d 348) (2019); WXIA-TV v. State of Ga., 303 Ga. 428 (811 SE2d 378) (2018). 1. Procedural History.

An Irwin County grand jury indicted Ryan Duke in April 2017

for malice murder and related offenses in connection with the

October 2005 death of Tara Faye Grinstead. For approximately 17

months, Duke was represented by a public defender from the Tifton

Judicial Circuit’s Public Defender’s Office. Then, in August 2018,

Duke’s public defender withdrew from representation, and John

Merchant and Ashleigh Merchant filed an entry of appearance,

indicating that they were representing Duke pro bono.2

In November 2018, defense counsel filed motions seeking funds

from Irwin County to hire an expert in false confessions and an

investigator. The trial court denied the motions on December 7,

2018, ruling that the IDA no longer required local governments to

provide funding for such requests. A week later, defense counsel re-

filed the motions for funds, this time requesting that the trial court

order the GPDC and the State of Georgia to pay for the defense

2 John Gibbs from the law firm Troutman Pepper (formerly Troutman

Sanders) later filed an entry of appearance in February 2019, joining the defense team as pro bono counsel. 2 team’s investigator and expert, instead of Irwin County. The trial

court subsequently denied these motions.

Then, in February 2019, defense counsel sent a letter to the

GPDC directly, requesting it provide funding for the defense team

to hire a DNA True Allele expert, a forensic psychologist, an expert

in false confessions, and an investigator, arguing that Duke was

entitled to such funding under the IDA by virtue of his indigency.

The director of the GPDC formally denied the request in a detailed

letter, explaining that, because Duke was represented by private

counsel, Duke did not qualify for financial assistance, even though

defense counsel were representing him pro bono.

Around this same time, defense counsel filed a consolidated

motion in the trial court requesting funds to hire the same DNA

True Allele expert, forensic psychologist, false confessions expert,

and investigator. The trial court held an ex parte hearing on the

motion on February 28, 2019. At the hearing, defense counsel

presented testimony from John Mobley, the Circuit Public Defender

for the Tifton Judicial Circuit, and Brandon Bullard, who was then

3 the Chief Legal Officer of the GPDC, concerning their interpretation

and application of the IDA as it related to Duke’s request for public

funds. While Mobley and Bullard agreed that the IDA allowed the

GPDC and circuit public defenders to contract with consultants and

lawyers not otherwise employed by the public defender system,

Bullard testified that there was no mechanism within the IDA that

would allow private, pro bono counsel to contract with the GPDC in

order to access state funding for experts and investigators. Further,

Mobley testified that his office determines whether a defendant

qualifies for public defender services based upon whether that

person meets the IDA’s definition of “indigent.” See OCGA § 17-12-

2 (6) (C). Mobley testified that, because Duke had retained private

counsel, he no longer met that definition. Mobley also noted that

the director of the GPDC had recently sent Duke a letter explaining

why he no longer met the IDA’s definition of indigence, and Mobley

“defer[red] to her answer” on the question of indigence.

After the hearing, but before issuing a written order, the trial

court wrote to defense counsel stating that, though it would likely

4 deny the consolidated motion,

it is the opinion of the Court that the [GPDC] cannot decline to provide counsel to Mr. Duke because he has pro bono counsel or [counsel] that is paid by a third party. So, if Mr. Duke reapplies to Mr. Mobley’s office for services, declining such an application [on] that ground would violate Mr. Duke’s right under the Georgia Constitution.

However, on March 14, 2019, the trial court entered a written order

denying defense counsel’s consolidated motion. Though the trial

court found Duke to be indigent and noted that “[t]he record

developed as to [Duke’s] need for the experts he requests is

compelling,” the court concluded “that while [Duke] has a

constitutional right to be represented by private, pro bono counsel if

he so chooses, he is not simultaneously constitutionally entitled to

experts and investigators funded by the State.” In the meantime,

Duke, through his pro bono counsel, re-applied to the Tifton Judicial

Circuit Public Defender for representation. The Circuit Public

Defender responded, in pertinent part, that the office “is legally and

ethically obligated to represent only those clients who are qualified

for public defender services. As [Duke] is currently represented by

counsel, the application . . . is, unfortunately, denied.” 5 Thereafter, Duke sought certification to appeal the trial court’s

March 14 order. When the trial court refused to certify its order for

immediate review, Duke filed, in this Court, an Emergency

Application for Leave to Appeal Interlocutory Order pursuant to

Waldrip v. Head, 272 Ga. 572 (532 SE2d 380) (2000), along with an

Emergency Motion for Supersedeas. This Court issued an order

staying the case, but later dismissed Duke’s application for lack of

jurisdiction, overruling Waldrip. See generally Duke v. State, 306

Ga. 171 (829 SE2d 348) (2019).

On remand, Duke renewed his motion for funds for experts and

an investigator. In his motion, Duke requested that the trial court

find him indigent again. He also requested that the trial court grant

state funding for his experts and an investigator, or declare the IDA

unconstitutional. After a hearing, at which the prosecutors were

present along with Duke and his defense team,3 the trial court

denied Duke’s renewed motion in a lengthy order on January 3,

3 All prior motions, hearings, and orders concerning funding were handled ex parte. This was the first hearing at which the prosecutors were present. 6 2020. As to whether Duke qualified as indigent under the IDA, the

trial court concluded that

[w]hether or not [Duke’s three] pro bono attorneys evinces the existence of [his] “other resources” enabling him to have counsel without undue hardship is debatable. The Tifton Circuit Public Defender obviously believes it does. And while his determination in this regard is certainly reviewable by the judiciary, in deference to the statutory scheme established by the Georgia legislature entrusting this determination to the executive branch, the various circuit public defenders’ determinations should not be disturbed by the judiciary absent such conduct arising to a clear and intolerable violation of constitutionally guaranteed right(s).

Concerning Duke’s request for funds, the trial court first looked to

the IDA and concluded that

state-funded ancillary services are authorized solely through the circuit public defender and are not severable from representation by the GPDC. The [IDA] explicitly contemplate[s] state-funded investigators and other personnel for the assistance of the circuit public defenders. The IDA does not authorize state funds for an indigent defendant’s necessary, ancillary services of his choice. The IDA does not contemplate a method whereby an indigent criminal defendant represented by private or pro bono counsel could obtain state funds for ancillary defense services. Thus, an indigent defendant is entitled to state-funded ancillary services only if represented by a public defender. (Emphasis supplied.) Having determined that the IDA did not

7 provide a mechanism through which an indigent defendant with pro

bono counsel could obtain state-funded ancillary services, the trial

court turned to the constitutional questions presented by this case

and concluded that the IDA did not violate Duke’s Sixth Amendment

right to counsel or his Fourteenth Amendment right to due process

under the United States Constitution. At the request of Duke’s

defense counsel, the trial court timely certified its order for

immediate review.

This Court granted Duke’s application for interlocutory appeal

and subsequently posed three questions to the parties.4 However,

based upon the current record in this case, we need not answer those

4 Initially, upon granting the application, this Court asked the parties:

Did the trial court err in holding that an indigent defendant in a criminal case who is represented by private, pro bono counsel does not have a constitutional right or a statutory right under the Indigent Defense Act, OCGA § 17-12-1 et seq., to state- funded experts and investigators? After receiving the parties’ briefs, as well as briefs from amici curiae, we requested oral argument and posed two additional questions: Does an indigent defendant have a due process right to publicly funded experts if he chooses to be represented by private, pro bono counsel? If so, then what government entity is responsible for providing the funding for such experts and investigators in this case?

8 questions for two reasons: (1) because the trial court erred by

adopting the GPDC’s and circuit public defender’s legal

interpretation that, under the IDA, simply because Duke is

represented by pro bono counsel, he is not indigent; and (2) because

the trial court erred by concluding that the IDA provides no

mechanism for an indigent defendant represented by pro bono

counsel to obtain state funds for ancillary defense services from the

GPDC or the circuit public defender. Accordingly, we reverse those

parts of the trial court order, vacate the trial court’s constitutional

rulings because those issues did not need to be decided at this time,

and remand the case for further proceedings consistent with this

opinion.

2. Analysis.

Duke argues that he is indigent, that his indigent status

entitles him to state-funded ancillary services — here, experts and

an investigator — under the IDA, and that the trial court’s

conclusions that he is not indigent and that he is not entitled to

state-funded ancillary services were erroneous. He further argues

9 that his decision to exercise his constitutional right to counsel of his

choice cannot impede his constitutional right to due process and a

fair trial by denying him, as an indigent defendant, access to state-

funded ancillary services. In response, the State argues that the

trial court properly ruled that Duke no longer met the definition of

“indigent” under the IDA because he had retained “high profile” pro

bono counsel, that the IDA does not provide a mechanism for the

GPDC to pay for Duke’s ancillary services, and that Duke waived

his constitutional right to state-funded ancillary services when he

chose to forgo representation by state-funded counsel.

(a) Indigency under the IDA.

First, we review the trial court’s ruling on Duke’s indigent

status. The IDA establishes the GPDC as “an independent agency

within the executive branch of state government,” OCGA § 17-12-1

(b), that is “responsible for assuring that adequate and effective

legal representation is provided . . . to indigent persons who are

entitled to representation under this chapter.” OCGA § 17-12-1 (c).

(Emphasis supplied.) OCGA § 17-12-2 (6) (C) defines an “indigent

10 defendant” for purposes of the IDA as

[a] person charged with a felony who earns or, in the case of a juvenile, whose parents earn, less than 150 percent of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person, his or her dependents, or, in the case of a juvenile, his or her parents or the parent’s dependents.

(Emphasis supplied.) The parties agree that the IDA applies only to

indigent defendants as so defined, and it is undisputed that Duke is

charged with a felony and earns less than 150% of the federal

poverty guidelines. The parties disagree, however, as to whether

pro bono counsel qualifies as “other resources that might reasonably

be used to employ a lawyer,” therefore removing Duke from the

statutory definition of indigency. We agree with Duke that the trial

court erred in adopting the GPDC and circuit public defender’s

interpretation of OCGA § 17-12-2 (6) (C) that pro bono counsel

qualifies as “other resources” under the IDA’s definition of

indigency.

It is well settled that “[a] statute draws its meaning . . . from

its text.” Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015).

11 When interpreting a statute, we must give the text its plain and

ordinary meaning, view it in the context in which it appears, and

read it in its most natural and reasonable way, see Deal v. Coleman,

294 Ga. 170, 172-173 (1) (751 SE2d 337) (2013), while also giving

meaning to all words in the statute, see Arby’s Restaurant Group v.

McRae, 292 Ga. 243, 245 (734 SE2d 55) (2012). When we construe

a statute on appeal, our review is de novo. See Hankla v. Postell,

293 Ga. 692, 693 (749 SE2d 726) (2013).

OCGA § 17-12-2 (6) (C) contemplates that a criminal defendant

with earnings below certain poverty guidelines is indigent unless he

has “other resources that might reasonably be used to employ a

lawyer[.]” (Emphasis supplied.) While the parties focus their

arguments on the phrase “other resources,” we must consider the

meaning of this phrase in conjunction with the rest of the sentence,

and, in doing so, we must determine what it means to “employ” a

lawyer. The term “resources” is broadly defined to mean “a source

of supply or support; an available means,” “a natural source of

wealth or revenue,” and “computable wealth.” Merriam Webster’s

12 Collegiate Dictionary 997 (10th ed. 1995). Meanwhile, “employ,”

when it is used in connection with personal services, is defined as

hiring a person for pay. See, e.g., Webster’s New World College

Dictionary 446 (4th ed. 2007) (defining “employ” in this context as

“to provide work and pay for, to engage the services or labor for pay”

and “the state of being employed, esp. for pay; paid service”);

Merriam Webster’s Collegiate Dictionary 379 (10th ed. 1995)

(defining “employ” in this context as “to provide with a job that pays

wages or a salary”); The New Shorter Oxford English Dictionary,

Volume 1, 810 (1993) (defining “employ” in this context as to “use or

retain the services of (a person), esp. in return for payments; pay (a

person) to work for oneself or one’s organization”). Giving the

pertinent text of the statute its plain and ordinary meaning in the

context in which it appears, the “other resources” — i.e., resources

other than “earnings” — must be usable to “employ” — i.e., provide

work and pay for — a lawyer. But the very definition of pro bono

counsel is lawyers who represent clients without pay. See Black’s

Law Dictionary (11th ed. 2019) (defining “pro bono” as

13 “[u]ncompensated, esp. regarding free legal services performed for

the indigent or for a public cause”).

Simply put, when a defendant is represented by pro bono

counsel, that lawyer is not an “other resource” available to “employ

a lawyer.” Further, the fact that a defendant has pro bono counsel

is not evidence that he has “other resources that might reasonably

be used to employ a lawyer” for the purpose of determining indigence

under OCGA § 17-12-2 (6) (C). The trial court’s adoption of an

interpretation to the contrary was error.5

(b) Pro bono counsel’s potential access to state funds under the IDA.

Next, we turn to the question of whether the IDA includes a

mechanism for pro bono counsel to access state funding for ancillary

defense services. Reading the statute as a whole, we conclude that

the trial court’s ruling (in accord with the GPDC’s assertion) that

pro bono counsel have no means by which to access state-funded

5 The record does not indicate that Duke has any “other resources that

might reasonably be used to employ a lawyer,” although, we recognize that a finding of indigency or non-indigency can always be reconsidered if circumstances change. 14 ancillary services under the IDA is erroneous.

The IDA provides state-funded legal defense services for

indigent defendants, which includes attorneys and investigators.

See OCGA §§ 17-12-23 (discussing representation of indigent

defendants by circuit public defenders); 17-12-28 (authorizing

employment of investigators by circuit public defenders); 17-12-29

(authorizing employment of administrative, clerical, and

paraprofessional personnel by circuit public defenders). The IDA

further requires the director of the GPDC to

work with and provide support services and programs for circuit public defender offices and other attorneys representing indigent persons in criminal or juvenile cases in order to improve the quality and effectiveness of legal representation of such persons and otherwise fulfill the purposes of this chapter. Such services and programs shall include, but shall not be limited to, technical, research, and administrative assistance; educational and training programs for attorneys, investigators, and other staff; assistance with the representation of indigent defendants with mental disabilities; assistance with the representation of juveniles; assistance with death penalty cases; and assistance with appellate advocacy.

(Emphasis supplied.) OCGA § 17-12-5 (b) (1). See also OCGA § 17-

12-5 (b) (3) (“The director may . . . contract with outside consultants

15 on behalf of the office as may be necessary to provide the services

contemplated by this chapter.”).6 The text and structure of the IDA

therefore indicate that the GPDC and its director will support

attorneys who represent indigent defendants but are not in a circuit

public defender office.

The IDA also allows the GPDC and circuit public defenders to

contract with outside counsel and then provide ancillary service

funding to indigent defendants represented by such attorneys. The

IDA expressly requires the GPDC to contract with conflict attorneys

in death penalty cases. See OCGA § 17-12-12.1. The statute also

allows circuit public defenders to employ, in addition to assistant

and deputy public defenders, “other attorneys” where authorized by

local law and funding. See OCGA § 17-12-31 (a).

It is clear that “other attorneys” refers to attorneys who do not

work in circuit public defender offices. See OCGA §§ 17-12-5 (b) (1)

(“The director shall work with and provide support services and

6 The General Assembly also granted the GPDC the general authority to

contract. See OCGA § 17-12-4 (a) (3) (“The council . . . [m]ay contract[.]”). 16 programs for circuit public defender offices and other attorneys

representing indigent persons in criminal or juvenile cases. . . .”)

(emphasis supplied); 17-12-31 (a) (“The circuit public defender in

each judicial circuit may employ additional assistant circuit public

defenders, deputy circuit public defenders, or other attorneys . . . .”)

(emphasis supplied). But, the State argues that “other attorneys”

refers only to the non-public defenders specifically mentioned within

the IDA, namely conflict counsel and capital defenders. Duke

argues that “other attorneys” need not be read so restrictively, and

that doing so would violate his Sixth Amendment right to counsel of

his choice and his Fourteenth Amendment right to due process and

a fair trial. Instead, Duke argues that the legislature intended

“other attorneys” to extend generally to counsel outside the public

defender system who represent criminal defendants who qualify as

indigent under the IDA. As a textual matter, we agree with Duke

that “other attorneys” is best read broadly.

“Other,” an expansive term, is defined as “the remaining one

or ones of two or more; different or distinct from that or those

17 referred to or implied; different in nature or kind; further or

additional; former.” Webster’s New World College Dictionary 1021

(4th ed. 2007). See also Merriam Webster’s Collegiate Dictionary

823 (10th ed. 1995) (defining “other” as “being the one (as of two or

more) remaining or not included; being the one or ones distinct from

that or those first mentioned or implied”); The New Shorter Oxford

English Dictionary, Volume II, 2031 (1993) (defining “other” as “that

remain(s) from a specified or implied group of two or (later) more”

and “existing besides or distinct from that or those already specified

or implied; further, additional”). And the General Assembly utilized

the word “other” throughout the IDA to broadly refer to things

beyond those specified in the statute. See, e.g., with all emphases

supplied, OCGA §§ 17-12-6 (a) (1) (“The [GPDC] may assist public

defenders throughout the state . . . [with t]he preparation and

distribution of a basic defense manual and other educational

materials”); 17-12-10.2 (“The members of the [GPDC] as created by

this article, the members of the circuit public defender supervisory

panel created by Article 2 of this chapter, and other policy-making

18 or administrative personnel acting in a policy-making or

administrative capacity shall not be subject to civil liability”); 17-12-

32 (“The governing authority of such county or municipality shall

transfer to the council such funds as may be necessary to cover the

compensation, benefits, travel, and other expenses for such

personnel”); 17-12-51 (a)-(d) (multiple provisions authorizing trial

courts to order defendants represented by a public defender to pay

“all or a portion of the cost for providing legal representation and

other expenses of the defense” as a condition of probation).

Moreover, the General Assembly references attorneys

representing indigent defendants in various parts of the IDA

without limiting the meaning of those “attorneys” to either conflict

counsel or capital defenders. See, e.g., with emphases supplied

OCGA §§ 17-12-5 (b) (1); 17-12-6 (a) (3) (explaining that the GPDC

may help in “[t]he promotion of and assistance in the training of

indigent defense attorneys”); 17-12-11 (b) (providing “the circuit

public defender or other attorney who represented the indigent person

at the time of the finding of not guilty by reason of insanity” the

19 option to continue representation of that person); 17-12-31 (a) (“The

circuit public defender in each judicial circuit may employ additional

assistant circuit public defenders, deputy circuit public defenders,

or other attorneys . . . .”). Indeed, when the General Assembly wished

to limit the IDA’s reach as it applies to “other attorneys,” the

legislature did so explicitly. See, e.g., with all emphases supplied,

OCGA §§ 17-12-24 (c) (“The circuit public defender shall keep and

maintain appropriate records, which shall include the number of

persons represented, including cases assigned to other counsel based

on conflict of interest.”); 17-12-33 (a) and (b) (referring to “other

attorney[s] at law employed full time by the circuit public defender”);

17-12-50 (2) (defining “[p]ublic defender” as “an attorney employed

by a circuit public defender office or any other attorney who is paid

from public funds to represent an indigent person in a criminal

case”). If the General Assembly wanted to limit the GPDC’s ability

to contract with “other attorneys” exclusively to conflict counsel and

capital defenders, it could have done so explicitly, instead of simply

utilizing the expansive term “other.” For all of these reasons, we

20 conclude that the IDA provides pro bono counsel representing

indigent defendants access to state-funded ancillary defense

services by contracting with either the GPDC or the appropriate

circuit public defender. The trial court’s contrary conclusion was

erroneous.

The State asserts that allowing pro bono counsel access to

public funds for ancillary services through the IDA would drain the

GPDC’s resources to provide competent representation to indigent

defendants represented by public defenders. We disagree. The IDA

established a system, supervised by the GPDC, for funding defense

counsel and ancillary services for indigent defendants to ensure that

defense lawyers and ancillary service providers are competent and

conflict-free, and that public funds are used in compliance with the

statutory scheme.7 The GPDC exercises that oversight not just for

7 See, e.g., OCGA §§ 17-12-4 (b) (requiring GPDC to establish an auditing

procedure for the handling of public funds); 17-12-5 (b) (1) (requiring the director of the GPDC to work with and provide support services and programs for attorneys representing indigent defendants “in order to improve the quality and effectiveness of legal representation of such persons”); 17-12-5 (d) (detailing, among other things, the financial oversight duties of the GPDC director); 17-12-6 (b) (1) (establishing the GPDC as “the fiscal officer for the

21 its own employees and the circuit public defenders and their

employees, but also through contracts with outside counsel and

ancillary service providers. See, e.g., OCGA §§ 17-12-12.1; 17-12-28;

17-12-29; 17-12-31 (a). Indeed, the State’s asserted fiscal interests

are actually advanced by the ability of the GPDC and the circuit

public defenders to contract with pro bono counsel representing

indigent defendants. In that scenario, the GPDC retains oversight

of the competence and cost of ancillary services while avoiding the

expenditure of additional public funds to provide counsel because

pro bono counsel need not be compensated for the work.

3. Conclusion.

Based on the foregoing, we conclude that the IDA provides a

mechanism for pro bono counsel representing an indigent defendant

to access public funding for ancillary defense services: by entering

into a contractual relationship with either the circuit public

circuit public defender offices [who] shall account for all moneys received from each governing authority”); 17-12-7 (requiring the GPDC to “at all times act in the best interest of indigent defendants who are receiving legal representation” under the IDA). 22 defender or directly with the GPDC. We note that, although Duke’s

pro bono counsel applied for funding from the GPDC, the record does

not indicate that his counsel has tried to contract for ancillary

services with either the GPDC or the Tifton Judicial Circuit Public

Defender, as is authorized under the IDA. But, given the GPDC’s

legal position, the circuit public defender’s adoption of the same

position, and the trial court’s endorsement of that position in its

January 2020 order, such a request for a contract likely would have

been futile before our opinion today.

To be clear, we do not hold that an indigent defendant who has

pro bono counsel is entitled to more favorable conditions in terms of

ancillary services under the IDA through a contract with the GPDC

or a circuit public defender than any other indigent defendant who

is represented by counsel under the IDA. Instead, we merely hold

that there is a mechanism under state law for pro bono counsel

representing an indigent defendant to access public funding for

ancillary services. This also means that we need not conclusively

decide at this time whether, in this case, the United States

23 Constitution requires provision of ancillary services for indigent

defendants by some other mechanism outside the IDA.

Accordingly, we reverse the parts of the trial court’s order

ruling that pro bono counsel qualify as “other resources that might

reasonably be used to employ a lawyer” under the IDA’s definition

of indigency, and that the IDA does not provide a mechanism by

which an indigent criminal defendant represented by pro bono

counsel can obtain state funds for ancillary defense services.

Because the contractual mechanism is available to Duke, there is no

need at this point to address the difficult constitutional questions

that would arise if Duke is unable to obtain needed ancillary services

in this case.8 Because the trial court also did not have to decide

8 For example, it is not clear under the United States Constitution how

an indigent defendant who exercises his Sixth Amendment right to counsel of his choice, either by choosing pro bono counsel or by proceeding pro se, can obtain public funding for ancillary services to which he is entitled as a matter of due process under the Fourteenth Amendment if a state’s statutory indigent defense system does not provide such funding. Indeed, as briefed by the parties and amici curiae in this case, appellate courts across the country have wrestled with this question and have reached differing conclusions. Compare, e.g., State v. Wool, 648 A2d 655, 660 (Vt. 1994); Ex Parte Sanders, 612 S2d 1199, 1201 (Ala. 1993); State v. Boyd, 418 SE2d 471, 475-476 (N.C. 1992), with, e.g., Crawford v. State, 404 P3d 204, 216 (Alaska Ct. App. 2017); Moore v. State,

24 those questions, we vacate that portion of the trial court’s order.

And we remand the case to allow Duke to seek a contract with the

GPDC or the circuit public defender that would provide him access

to state-funded ancillary services.9

Judgment reversed in part and vacated in part, and case remanded with direction. All the Justices concur, except Bethel, J., who dissents.

PETERSON, Justice, concurring.

I concur in the majority opinion. I write separately to make

explicit something the majority leaves implicit: the GPDC would be

889 A2d 325, 343 (Md. 2005); People v. Cardenas, 62 P3d 621, 623 (Colo. 2002). The dueling analyses by the concurring and dissenting opinions further demonstrates the difficulty of deciding this question. Moreover, a determination by this Court that a constitutional right to state-funded ancillary services exists outside the IDA would create additional issues in determining which public entity should provide such funding.

9 We express no opinion as to whether the ancillary services that Duke

has requested are needed under Ake v. Oklahoma, 470 U.S. 68 (105 SCt 1087, 84 LE2d 53) (1985). 25 most unwise to decline to contract with Duke’s counsel on remand.

This is because, contrary to the dissent’s dismissal of Duke’s

constitutional arguments, Duke may very well have a constitutional

right to state-funded experts. To determine whether Duke in fact

does have such a right notwithstanding his representation by pro

bono lawyers would require us to decide a thorny constitutional

question of first impression in this jurisdiction. Happily, the

majority’s interpretation of the IDA renders such a difficult analysis

unnecessary today.

We have often observed that the Constitution does not forbid

the criminal justice system from imposing hard choices on

defendants. See, e.g., Elliott v. State, 305 Ga. 179, 211 (IV) (B) (824

SE2d 265) (2019) (“[T]his poor option set [posed to a DUI arrestee]

is merely a consequence of there being probable cause to arrest a

person for driving under the influence. And making a choice between

two unpalatable options is still a choice.”). This is so even when those

hard choices involve competing constitutional rights; the criminal

justice system need not invent new procedures to eliminate the

26 natural consequences of choosing a particular path. And the United

States Supreme Court has repeatedly observed that its holdings that

indigent defendants are entitled to certain state-funded assistance

do not dictate to the states a specific mechanism for providing that

assistance. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 83 (105 SCt

1087, 84 LE2d 53) (1985) (“Our concern is that the indigent

defendant have access to a competent psychiatrist for the purpose

we have discussed, and as in the case of the provision of counsel we

leave to the States the decision on how to implement this right.”);

Griffin v. Illinois, 351 U.S. 12, 20 (76 SCt 585, 100 LE2d 891) (1956)

(“We do not hold, however, that Illinois must purchase a

stenographer’s transcript in every case where a defendant cannot

buy it. The [Illinois] Supreme Court may find other means of

affording adequate and effective appellate review to indigent

defendants.”).

But, as discussed below, neither of those familiar principles

decides this case, which involves two unrelated and not incompatible

rights — the right to counsel of choice and an indigent criminal

27 defendant’s right to publicly funded ancillary defense services. Both

the United States and Georgia Constitutions enshrine strong rights

to counsel of choice. The United States Supreme Court has long held

that the Sixth Amendment includes, within limits, a right for the

defendant to choose the counsel he thinks will best serve him. See

United States v. Gonzalez-Lopez, 548 U.S. 140, 146-148 (126 SCt

2557, 165 LE2d 409) (2006) (“So also with the Sixth Amendment

right to counsel of choice. It commands, not that a trial be fair, but

that a particular guarantee of fairness be provided — to wit, that

the accused be defended by the counsel he believes to be best. . . .

The right to select counsel of one’s choice . . . has never been derived

from the Sixth Amendment’s purpose of ensuring a fair trial. It has

been regarded as the root meaning of the constitutional

guarantee.”); Powell v. Alabama, 287 U.S. 45, 53 (53 SCt 55, 77 LE

158) (1932) (“It is hardly necessary to say that, the right to counsel

being conceded, a defendant should be afforded a fair opportunity to

secure counsel of his own choice.”). The provision now found at

Article I, Section I, Paragraph XIV of the Georgia Constitution —

28 “[e]very person charged with an offense against the laws of this state

shall have the privilege and benefit of counsel” — embodies a robust

right to choice of counsel as well. See Registe v. State, 287 Ga. 542,

544 (2) (697 SE2d 804) (2010) (“One element of the right to counsel

in criminal prosecutions, as guaranteed by the Sixth Amendment . .

. [and] the Georgia Constitution of 1983, is the right of a defendant

who does not require appointed counsel to choose who will represent

him.”); Delk v. State, 100 Ga. 61, 61 (1) (27 SE 152) (1896) (“The

provision in the ‘bill of rights’ declaring that ‘every person charged

with an offense against the laws of this State shall have the privilege

and benefit of counsel’ confers upon every person indicted for crime

a most valuable and important constitutional right, and entitles him

to be defended by counsel of his own selection whenever he is able

and willing to employ an attorney and uses reasonable diligence to

obtain his services.”). And pertinent to this case, the United States

Supreme Court has made clear that the federal right to choice of

counsel extends to pro bono counsel. See Caplin & Drysdale v.

United States, 491 U.S. 617, 624-625 (109 SCt 2646, 105 LE2d 528)

29 (1989) (“[T]he Sixth Amendment guarantees a defendant the right

to be represented by an otherwise qualified attorney whom that

defendant can afford to hire, or who is willing to represent the

defendant even though he is without funds.”).

The other right at issue in this case, an indigent criminal

defendant’s right to publicly funded ancillary defense services, is

clearly established by the United States Supreme Court. See

McWilliams v. Dunn, __ U.S. __, __ (137 SCt 1790, 198 LE2d 341)

(2017) (“Ake clearly established that a defendant must receive the

assistance of a mental health expert who is sufficiently available to

the defense and independent from the prosecution to effectively

‘assist in evaluation, preparation, and presentation of the

defense.’”).10 This right is rooted in the Due Process Clause, not

10 We have held that this right extends beyond psychiatric experts. See

Bright v. State, 265 Ga. 265, 270 (2) (c) (455 SE2d 37) (1995); Roseboro v. State, 258 Ga. 39, 40 (3) (b) (365 SE2d 115) (1988). An indigent criminal defendant generally is entitled to state funds for an expert to examine “critical evidence, which, in light of its novelty, is likely to be the subject of varying expert opinions.” Thornton v. State, 255 Ga. 434, 435 (2) (339 SE2d 240) (1986); see also Finn v. State, 274 Ga. 675, 677 (2) (558 SE2d 717) (2002). In order to obtain funds for an expert witness, a motion on behalf of an indigent criminal defendant “should disclose to the trial

30 merely derivative of the Sixth Amendment right to appointed

counsel. See Ake, 470 U.S. at 76-83 (Fourteenth Amendment Due

Process Clause confers a right to access to a psychiatrist to assist

defense where sanity at time of offense is to be a significant factor

at trial). The right of expert assistance thus is distinct from the right

to choice of counsel and must be safeguarded independently.

No case law supports forcing a choice between two

constitutional rights that don’t already have some meaningful

tension between them such that they are to some extent mutually

exclusive. To be sure, “[t]he criminal process, like the rest of the

legal system, is replete with situations requiring the making of

difficult judgments as to which course to follow.” McGautha v.

California, 402 U.S. 183, 213 (91 SCt 1454, 28 LE2d 711) (1971)

(citation and punctuation omitted), vacated on other grounds sub.

court, with a reasonable degree of precision, why certain evidence is critical, what type of scientific testimony is needed, what that expert proposes to do regarding the evidence, and the anticipated costs for services.” Williams v. State, 303 Ga. 474, 476 (2) (813 SE2d 384) (2018) (quoting Roseboro, 258 Ga. at 41 (3) (d)). 31 nom. Crampton v. Ohio, 408 U.S. 941 (92 SCt 2873, 33 LE2d 765)

(1972). “Although a defendant may have a right, even of

constitutional dimensions, to follow whichever course he chooses,

the Constitution does not by that token always forbid requiring him

to choose.” Id. But a defendant’s constitutional rights may be

violated when “compelling the election impairs to an appreciable

extent any of the policies behind the rights involved.” Id. Here,

compelling an indigent defendant to choose between his two rights

⸺ accessing state-funded ancillary defense services and retaining

his chosen pro bono counsel ⸺ potentially impairs to an appreciable

extent one or both of those rights. There is no clear tension between

the simultaneous exercise of those two rights that naturally leads to

compelling such a choice.11

11 I also note that longstanding United States Supreme Court doctrine

provides that the government may not deny a person a benefit — even one that it is not obligated to provide — on a basis that infringes upon the person’s constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597 (92 SCt 2694, 33 LE2d 570) (1972) (even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, the government may not deny a benefit to a person on a basis that infringes his constitutionally protected interests). Although this principle may not directly apply to the case at hand, it seems

32 Whether the State may force an indigent defendant to waive

his right to counsel of choice in order to invoke his right to state-

funded experts is particularly questionable given that the State has

offered no good reasons for such a requirement. The State argues

that requiring it to provide ancillary services to those indigent

defendants who choose counsel outside the services of the GPDC

“poses a significant and seemingly exponential financial burden

upon the State.” But budgetary concerns alone are insufficient to

relieve the State of its obligations to safeguard both the right to

counsel of choice and the right to ancillary defense services for

indigent defendants. See Garland v. State, 283 Ga. 201, 205 n.5 (657

SE2d 842) (2008) (“In light of the constitutional rights involved, we

find no merit in the Council’s policy arguments, e.g., the need for

trial lawyers to gain appellate experience, or in its budgetary

concerns that it raises as warranting a different holding.”). This is

relevant here where the benefit — public funding for certain ancillary defense services for indigent defendants — is something that the State is in fact constitutionally obligated to provide. I question whether the State may condition access to that benefit on giving up one’s choice of counsel. 33 particularly true here, where there are other ways to ensure cost

control and quality. As today’s majority opinion explains in detail,

the IDA provides a mechanism for pro bono counsel representing

indigent defendants to contract with either the GPDC or a circuit

public defender in order to access state-funded ancillary defense

services, giving the State a mechanism to control the terms of the

provision of such services.12 And even in the absence of such a

contract, the trial court retains the authority and responsibility to

determine whether the defendant is entitled to the requested

resources and approve the specific expert or other resource to be

provided. See Brown v. State, 260 Ga. 153, 157 (7) (391 SE2d 108)

(1990) (indigent defendant’s right to expert assistance is not a “right

to choose a psychiatrist of his personal liking or to receive funds to

hire his own”); Thornton v. State, 255 Ga. 434, 435 (3) (339 SE2d

240) (1986) (providing that the trial court “shall appoint an

12 I agree with the majority opinion that pro bono counsel may not dictate

the terms of such a contract; I don’t see any constitutional reason why such contracts would have to be on any different terms than those the GPDC and the circuit public defenders already have with conflict attorneys. 34 appropriate professional, whose experience, at minimum, is

substantially equivalent to that of the state’s expert witness, to

examine the state’s evidence on behalf of” the defendant and

“approve the payment of reasonable compensation for such

services”).13 Thus, Duke’s claim is not resolved merely by applying

the familiar principles that the Constitution does not forbid

compelling hard choices and does not dictate the specific

mechanisms for providing constitutionally required expert

assistance.14

And it is perhaps for that reason that the dissent advances a

13 The State’s claim that Duke’s position would impose on it a severe

financial burden is itself a bit mystifying. The State’s position would seem to discourage lawyers from taking on the cases of indigent criminal defendants pro bono, shifting additional defense representation costs onto the State. See English v. Missildine, 311 NW2d 292, 294 (Iowa 1981) (“It would be strange if the Constitution required the government to furnish both counsel and investigative services in cases where the indigent needs and requests public payment for only investigative services. The State’s theory would impose an unreasonable and unnecessary additional burden on the public treasury.”). 14 I agree with the dissent that even if the IDA did not permit contracting

with Duke’s counsel, the statute would still not be unconstitutional. But in my view, that’s because even then the IDA would not prohibit Duke from receiving ancillary services; it simply would not be the vehicle for providing them and Duke would have to look directly to the trial court for such services. Thus, to the extent constitutional claims must satisfy a higher standard when they challenge a statute, I don’t consider that higher standard applicable here.

35 wholly different and unfamiliar principle: that the State may

condition its compliance with the federal Due Process Clause’s

mandate to provide a fair trial upon the waiver of unrelated state

and federal constitutional rights — here, the right to counsel of

choice. The dissent does not cite a single case for this novel

proposition.15 Nor does the dissent explain how much further its

proposition might extend. If the State may condition satisfying its

constitutional obligation to provide expert assistance upon a waiver

of unrelated constitutional rights, what’s to stop the State from

requiring waivers of other rights? I see little reason why the State

may require waiver of the rights to counsel of choice, but not, say,

waiver of the rights against unreasonable searches or seizures, or

waiver of the rights to a jury trial, or, for that matter, waiver of the

15 For that matter, not a single case cited in the dissent even involves the

guarantee that we have found in the Georgia Constitution of indigent defendants to at least some state-funded expert assistance that is distinct from the federal right articulated in Ake. See Williams v. Newsome, 254 Ga. 714, 715-716 (334 SE2d 171) (1985) (finding it unnecessary to decide applicability of Ake because the Georgia Constitution provided independent and adequate state grounds for decision that criminal defendant was entitled to psychiatric examination).

36 rights to say things critical of the government.16 And the dissent

cites no decision from our Court or the United States Supreme Court

requiring rejection of Duke’s claim that he is constitutionally

entitled to ancillary defense resources simply because he has

secured lawyers to represent him pro bono, and I have found no such

authority.17

The dissent alludes to limitations on the right to choice of

counsel. In particular, “the right to counsel of choice does not extend

to defendants who require counsel to be appointed for them.”

16 It seems to me that the State could make a pretty good case that the

assertion of each of these rights creates inefficiencies of one kind or another. Or, at least, that requiring their waivers would generate more efficiencies than the State’s attempt in this case to force Duke to accept state-funded counsel when he doesn’t want it. Many of the most important provisions of the state and federal constitutions sacrifice efficiency for liberty. That’s generally considered a feature, not a bug. 17 I note that both the federal and Georgia constitutions embody robust

rights to self-representation. See Faretta v. California, 422 U.S. 806, 821-832 (95 SCt 2525, 45 LE2d 562) (1975); Oliver v. State, 305 Ga. 678, 679-680 (2) (827 SE2d 639) (2019); see also Ga. Const. of 1983, Art. I, Sec. I, Par. XII (“No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”). The dissent expressly reserves the question of whether an indigent defendant proceeding pro se (and thus rejecting public defenders) has a constitutional right to state-funded ancillary defense services. But I see no convincing reason for treating defendants exercising the right to self-representation differently from those exercising the right to counsel of choice. 37 Gonzalez-Lopez, 548 U.S. at 151. But this merely reflects that the

scope of the right to state-funded appointed counsel does not include

the right to choose your attorney. Again, in the criminal defense

context, the right to counsel of choice is the right to choose “an

otherwise qualified attorney whom that defendant can afford to hire,

or who is willing to represent the defendant even though he is

without funds.” Caplin & Drysdale, 491 U.S. at 624-625. And the

right to appointed counsel is the indigent criminal defendant’s right

for the state to appoint for the defendant counsel at the state’s

expense and of the state’s choosing. This right does not contain

within it the right of an indigent defendant to choose the appointed

lawyer. Duke is not asserting this right; it has nothing to do with

this case. And so any relation this right may have to the due process

right to ancillary services for indigent criminal defendants is wholly

irrelevant to whether the State may condition those ancillary

services on the waiver of the separate right to counsel of choice.

A few appellate courts in other jurisdictions have concluded

that a state may constitutionally bundle together legal

38 representation and ancillary defense services, such that an indigent

defendant must accept a state-funded attorney in order to access

other state-funded defense services. But these cases either assume

that the right to state-funded ancillary defense services is a

subsidiary of the right to counsel, or are otherwise poorly reasoned.

For instance, in State v. Earl, 345 P3d 1153 (Utah 2015), the Utah

Supreme Court framed the rights at issue as subsidiaries of the right

to counsel, saying, “The constitutional right to counsel encompasses

the prerogative of choosing counsel of one’s choice and of receiving

resources necessary to an adequate defense.” Id. at 1158. Although

the Utah court cited Ake for that proposition, Ake makes clear that

the availability of funding for ancillary defense services involves a

right independently rooted in the Due Process Clause. See 470 U.S.

at 76-83. This makes Earl’s bases for concluding that the federal

Constitution does not forbid denying public defense resources to an

indigent defendant who opts out of public representation — that the

right to choice of counsel is circumscribed, and an indigent defense

is entitled to only the tools for an adequate defense, see 345 P3d at

39 1158-1159 — particularly unsatisfying. A Colorado appellate

decision, People v. Thompson, 413 P3d 306 (Colo. Ct. App. 2017),

does no better. It assumes that because the Sixth Amendment right

to counsel of choice does not confer a right to public funding to pay

the defendant’s chosen attorney, the right to counsel of choice “does

not extend to indigent defendants who require courts to spend public

funds to pay for their ancillary services.” Thompson, 413 P3d at 317-

318. Having offered up this unpersuasive syllogism that examined

the issue solely through the Sixth Amendment lens, the court then

attempted to grapple with the due process right to experts

recognized in Ake, focusing on language in Ake to the effect that a

defendant “did not have ‘a constitutional right . . . to receive funds

to hire his own’ experts.” Thompson, 413 P3d at 319 (quoting Ake,

470 U.S. at 83). The Colorado decision thus fails to recognize that,

even in the absence of public representation, the trial court may

control the appointment of experts.18

18 Another state appellate court decision holding that the federal Constitution does not require providing experts to indigent criminal

40 Thankfully, we need not answer definitively today the question

of whether Duke’s pro bono representation means he is not

constitutionally entitled to publicly funded expert defense services.

But it may well be that Duke is correct that the nature of his

relationship with his counsel does not preclude his access to such

services. Now that the GPDC understands that it has the authority

to contract with Duke’s counsel and thereby provide funding for

experts necessary to Duke’s case, the GPDC would do well to do so,

lest the already-considerable delays in bringing this case to trial

grow even longer.

I am authorized to state that Justice Boggs and Justice Warren

join in this concurrence.

defendants represented by pro bono counsel relies heavily on a prior decision by the court about access to transcripts. See Moore v. State, 889 A2d 325, 344- 346 (Md. Ct. App. 2005) (discussing State v. Miller, 651 A2d 845 (Md. Ct. App. 1994)). Although an indigent defendant’s right to a free transcript may stem at least in part from the same due process right as the right to a publicly funded expert, see Griffin, 351 U.S. at 18-19, the prior Maryland decision did little analysis of the former issue before concluding that “[f]ailure to provide a free transcript to the indigent appellant cannot interfere with the right to choice of counsel where no such absolute right exists.” Miller, 651 A2d at 853. 41 BETHEL, Justice, dissenting.

When the State charges an indigent person with a crime in

Georgia, state and federal constitutional considerations require the

State to ensure the defendant has access to competent and effective

legal representation and appropriate defense resources at the

expense of the State. See Ake v. Oklahoma, 470 U. S. 68, 76-83 (III)

(A) (105 SCt 1087, 84 LE2d 53) (1985); Strickland v. Washington,

466 U. S. 668, 686 (II) (104 SCt 2052, 80 LE2d 674) (1984); Britt v.

North Carolina, 404 U. S. 226, 227 (92 SCt 431, 30 LE2d 400) (1971);

Gideon v. Wainwright, 372 U. S. 335, 339-345 (II) (83 SCt 792, 9

LE2d 799) (1963); Roberts v. State, 263 Ga. 764, 765 (1) (438 SE2d

905) (1994); Lewis v. State, 255 Ga. 101, 105 (3) (335 SE2d 560)

(1985). The indigent defendant is not obligated to accept these

publicly funded resources, but he effectively forfeits his

constitutional right to private counsel of his own choosing while he

uses the publicly funded resources. See United States v. Gonzalez- 42 Lopez, 548 U. S. 140, 151 (IV) (126 SCt 2557, 165 LE2d 409) (2006)

(“[T]he right to counsel of choice does not extend to defendants who

require counsel to be appointed for them.” (citations omitted)).

Similarly, reliance on public funding for defense resources

results in the State taking responsibility for selection and

engagement of those resources. See Ake, 470 U. S. at 83 (III) (A)

(noting that states have discretion with regard to how to provide

counsel and expert assistance to indigent defendants). Provided the

State’s indigent defense system satisfies constitutional

requirements relative to the rights to counsel and due process, the

State is allowed to manage an indigent defendant’s access to publicly

funded legal representation and defense resources according to its

own preferences and priorities. See id. The State must, at least,

retain this same discretion when an indigent defendant has elected

to use the services of private legal counsel. That is to say, an indigent

defendant who secures free, substantially discounted, or third-party

funded private representation cannot thereby obtain more rights

over the selection, management, and funding of ancillary defense

43 resources than a defendant being represented by state-appointed

counsel.

In this case, Duke questions the constitutionality of the

indigent defense statutes enacted by the General Assembly. Of

course, the Georgia Constitution vests “[t]he legislative power of the

state” in the General Assembly, Ga. Const. of 1983, Art. III, Sec. I,

Par. I, and as we have explained, the lawmaking power of the

General Assembly is “plenary.” Bryan v. Ga. Pub. Svc. Comm., 238

Ga. 572, 573 (234 SE2d 784) (1977); see also Sears v. State of Ga.,

232 Ga. 547, 553-554 (3) (208 SE2d 93) (1974) (“The inherent powers

of our State General Assembly are awesome . . . . [The General

Assembly] is absolutely unrestricted in its power to legislate, so long

as it does not undertake to enact measures prohibited by the State

or Federal Constitution.” (citation omitted)).

For that reason, when this Court is asked to consider the

constitutionality of an act of the General Assembly, we begin with a

strong presumption that it is a proper exercise of the legislative

power. See Service Employees Intl. Union v. Perdue, 280 Ga. 379,

44 380 (628 SE2d 589) (2006). This presumption can only be overcome

by a showing of a “clear and palpable” conflict with either the United

States Constitution or the Georgia Constitution. (Citation and

punctuation omitted.) JIG Real Estate v. Countrywide Home Loans,

289 Ga. 488, 490 (2) (712 SE2d 820) (2011). The burden is on the

party alleging that a statute is unconstitutional to demonstrate as

much. See Dee v. Sweet, 268 Ga. 346, 348 (1) (489 SE2d 823) (1997).

With respect to the statutory provisions providing for indigent

legal representation and ancillary defense services, I have concluded

that the strong presumption of constitutionality has not been

overcome in this case by a showing of a “clear and palpable” conflict

with the United States Constitution or the Georgia Constitution.

Thus, because Duke has not shown that the State of Georgia

deprived him of access to counsel and indigent defense services

guaranteed by the United States Constitution or the Georgia

Constitution, I would affirm.

Although the State of Georgia is obligated to provide indigent

legal services, it is not obligated to provide such services on terms

45 agreeable to the indigent defendant. See Gonzalez-Lopez, 548 U. S.

at 151 (IV); Ake, 470 U. S. at 83 (III) (A); Lewis, 255 Ga. at 105 (3).

Where, as here, an indigent defendant has elected to be represented

by private counsel, the State may — but is not required to — pursue

a contractual relationship with the defendant’s chosen counsel to

provide public resources to aid the defense. See OCGA §§ 17-12-5 (b)

(3) (permitting the Georgia Public Defender Council (“GPDC”) to

contract with outside consultants to provide indigent defense

services); 17-12-31 (a) (authorizing circuit public defenders to

employ attorneys and independent contractors, as resources and

local law allow, to provide indigent defense services). And Georgia

law allows circuit public defenders and the GPDC to pursue such

arrangements with outside attorneys and other professionals not

employed by their agencies, including attorneys who otherwise

engage in private law practice. See id.; see also OCGA §§ 17-12-2 (8)

(defining “public defender” as “an attorney who is employed in a

circuit public defender office or who represents an indigent person

pursuant to [the Georgia Indigent Defense Act of 2003]”); 17-12-33

46 (a) (providing that only attorneys who are employed full time by the

circuit public defender and who are compensated, in whole or in

part, with state funds are ineligible to engage in the private practice

of law). However, other than the avoidance of a legal conflict of

interest, neither constitutional constraints nor state law compels

those agencies to do so.19

Where a defendant has eschewed legal representation by the

circuit public defender or the GPDC, those agencies do not have any

constitutional or statutory obligation to provide funding for

ancillary defense services to the defendant, even when he is

indigent.20 My review of decisions of the Supreme Court of the

United States and this Court leads me to conclude that the rights to

counsel and ancillary defense services guaranteed by the Sixth

19 The Indigent Defense Act specifically requires the GPDC to enter into

a contractual agreement with an “attorney who is not employed by the circuit public defender office” in the event such attorney is appointed to represent an indigent defendant in a case in which the circuit public defender office has a conflict of interest. See OCGA § 17-12-22 (b). Such attorneys must meet the requirements for training, experience, qualifications, and standards of representation established by the GPDC. See OCGA § 17-12-22 (c). 20 I agree with the majority that the participation of pro bono counsel,

alone, does not impact Duke’s indigency status.

47 Amendment and Fourteenth Amendment to the United States

Constitution and Article I, Section I, Paragraphs I and XIV of the

Georgia Constitution of 1983 do not impose such a requirement on

indigent defense agencies.21 Neither are states prohibited from

linking indigent legal representation and ancillary services in an

“all or nothing” option for represented defendants.22 See Ake, 470 U.

S. at 83 (III) (A) (“Our concern is that the indigent defendant have

access to a competent psychiatrist for the purpose we have

21 The well-reasoned and citation-rich concurrence takes issue with the

lack of citation to authority for this proposition, but provides no explanation for its failure to include authority for the inverse proposition. There is no dispute that the right to counsel and the due process right to ancillary defense services are prized rights under both the United States Constitution and the Georgia Constitution. The question presented is what the State of Georgia must do to ensure those rights for indigent defendants. Given the broad discretion the decisions of the United States Supreme Court confer on states and the absence of any binding authority to the contrary, I conclude that packaging of these indigent defense services is not a violation of either the right to counsel or the right to due process. 22 My consideration in this respect is limited to represented defendants,

and I express no view on how such considerations would apply to a self- represented defendant. The concurrence suggests a lack of a principled distinction in this caveat. On the contrary, my view is that the State could provide the ancillary defense services to a self-represented defendant on far better, and arguably preferable, terms through a public defender than through a private attorney not subject to the state agency’s management. Moreover, the competing interests would be demonstrably different for a defendant seeking to access these ancillary defense services of the State without accessing State- funded counsel. No contractual or other special relationship would need to be formed to allow such a defendant to be a client or customer of the state agency. 48 discussed, and as in the case of the provision of counsel we leave to

the States the decision on how to implement this right.”); Lewis, 255

Ga. at 105 (3) (no violation of Due Process Clauses of the United

States Constitution or the Georgia Constitution where trial court

followed local procedure for appointing counsel for indigent

defendant and there was no showing that counsel was unqualified

or ineffective). Moreover, as the majority notes in its opinion, OCGA

§§ 17-12-5 (b) (3) and 17-12-31 (a) clearly contemplate that circuit

public defenders and the GPDC may make funds available to

indigent defendants who are not represented by those agencies at

their discretion, to the extent resources and local law allow. But

nothing obligates them to do so.23

23 The concurrence complains that I have provided no support for the

proposition that the State can make provision of ancillary defense resources dependent upon utilization of a public defender. But the concurrence seems comfortable with the State conditioning those resources on a requirement that the defendant’s self-selected attorneys give up their independence by contracting with the State as a precondition to receiving funding for the services. Once bound to the State in such a contract, the “private” counsel has clearly established a contractual relationship with the State and, for all intents and purposes, has become a public defender. 49 In short, the General Assembly has elected to provide indigent

legal representation and ancillary defense resources in what

amounts to a “one stop shop” for indigent defendants. While

certainly subject to criticism, I do not think this choice by the

General Assembly violates the United States Constitution or the

Georgia Constitution. I agree with the majority’s analysis of the

availability of contractual options for public funding of defense

resources for indigent defendants not represented by the circuit

public defender or the GPDC. I also agree with Duke and some of

our amici that there are a whole host of public policy justifications

for a State to discharge its constitutional obligations regarding

indigent defense with greater flexibility than the system currently

in place in Georgia requires. But the General Assembly makes that

policy choice in Georgia, and its choice controls as long as it complies

with the applicable constitutional standards. See Ake, 470 U. S. at

83 (III) (A); Sears, 232 Ga. at 553-554 (3).

The Georgia model provides that in cases like this where an

indigent defendant has chosen private representation, such counsel

50 may be brought under the umbrella of either the circuit public

defender or the GPDC, respectively, for purposes of the specific

contract-covered case. To utilize public resources for the defense,

such counsel must contract in some way with the relevant indigent

defense agency on terms agreeable to the agency. Once subject to

such a contract, the private counsel is essentially converted to a

public defender for purposes of the case covered by the contract.

Absent such arrangement, public funds are simply not available to

an indigent defendant in Georgia who is represented by private

counsel of his choice. Stated differently, Georgia requires indigent

defendants seeking the benefit of public resources for their defense

to either use a single system (which may include a private attorney

contracting with the State) or venture forth on their own.24 Duke

24 The concurrence complains about the lack of a limiting principle for

my analysis of this issue and suggests that my view opens the door for the State to coerce or force the defendant into making other concessions or difficult choices. But the link here is, obviously, the State action required to directly fund indigent defense. The State is obligated to satisfy a defendant’s right to counsel and the right to ancillary defense services even though these rights spring from different provisions of the United States Constitution and the Georgia Constitution. The difference between the State saying it will provide indigent defense services (whether legal or ancillary) in a single package and

51 identifies this as a difficult Hobson’s choice, and I wholeheartedly

agree that there is potential for a difficult choice. I simply do not

think it is an unconstitutional choice.

The record in this case makes clear that Duke, through his

private counsel, has not yet elected to pursue a contractual

relationship with either the circuit public defender or the GPDC

through which Duke could receive public funds to assist his private

counsel in his defense. Such a path seems worthy of exploration, but

I do not believe it to be constitutionally required, either on the part

of his counsel or the relevant State agencies.25 Even were Duke to

the State predicating the provision of defense resources on a defendant’s waiver of search and seizure protections seems plain to me. 25 The Court appears to avoid deciding the constitutional questions

presented here by sending the case back to compel Duke to pursue an available statutory remedy. That is an understandable choice. But, in doing so, I believe we send mixed messages to the circuit public defender, the GPDC, and the trial court. I fear the message of our opinion will be that either the circuit public defender, the GPDC, or both, are obligated to enter into a contract with Duke’s private attorneys. But, it is not so. Inevitably, there will be counsel and other professionals with whom circuit public defenders and the GPDC would rather not be affiliated or who fail or refuse to meet the contracting requirements of those agencies providing indigent defense services. Then we will be called upon to decide this question as well as how much the State is constitutionally required to give in contractual negotiations with outside service providers. But the General Assembly has already made that determination. The State may give if it is so inclined, but is not required to meet the demands of an indigent

52 make such efforts through his counsel at some point in this case, I

see no constitutional requirement compelling those agencies to

agree to a contract with Duke’s private counsel. And absent such

contract, the agencies are not compelled to provide Duke with any

funding for ancillary services so long as he continues to be

represented by private counsel unaffiliated with a state indigent

defense agency.

For these reasons, I would affirm the judgment of the trial

court. Thus, I respectfully dissent.

defendant who has elected not to be represented by an attorney employed by the relevant agency. I read the cases as requiring the State to provide reasonable access to competent services in the manner it deems appropriate. While I may not have constructed this model if I was the policy maker, I view it as discharging the obligations identified in the case law. 53 Decided March 15, 2021.

Murder. Irwin Superior Court. Before Judge Reinhardt.

The Merchant Law Firm, Ashleigh B. Merchant, John B.

Merchant III; Troutman Pepper, John S. Gibbs III, for appellant.

Bradford L. Rigby, Special Assistant District Attorney,

Jennifer D. Hart, Assistant District Attorney; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General, for

appellee.

Patrick Mulvaney, Shannon Wallace, District Attorney, Robert

W. Smith, Jr., Kelly Jean L. Pridgen, Larry W. Ramsey, Jr., G.

Joseph Scheuer, amici curiae.

54 55