Weis v. State

right by repudiating improper of that existence reliance journalist’s placed on a unofficial account Court Bloomfield respectfully Convention, I 1877 Constitutional must dissent to the majority’s opinion. joins

I am to state that Justice Benham authorized this dissent. Decided March April Reconsideration denied 2010.

Greenberg Traurig, Trigg, Ryan appel- Grelecki, Mark G. C. for lants. Holley Thompson, Regina Holley,

Molden, Molden, & S. Oni A. appellees. for Goldstein, Schroeder, Jones,

Powell P. Eric LeeAnn William V. TV, Cork, Jr., Custer Charles M. amici curiae.

S09A1951. WEIS v. THE STATE. Justice. Melton, Ryan appeals In this death Jamie Weis discharge acquittal alleged denial his motion for and based on an rights violation of his constitutional to counsel and a trial. As fully explained more trial below, because the court did not its abuse denying discretion in motion, affirm. we February The record reveals that Weis was arrested on 2, 2006 robbery, beating, shooting King, for death of Catherine expense. senior citizen. has Weis never retained counsel own originally appointed lawyers court from the Griffin Judicial represent Circuit Public Defender’s Office him. Several months attorneys Citronberg later, however, Robert H. and Thomas M. West appointed represent pursuant agreement were to an with the (the Georgia Public Defender Standards Council “Standards Coun- cil”), attorneys appearance and these entered an on Weis’ behalf October

During representation the first six months of their being paid, they West filed several motions investigation By on Weis’ behalf and conducted of his case. mid-March however, counsel became concerned that the lack funding available to the Standards Council would result counsel being pay experts unable to for the services of and for counsel paid themselves to continue to for their services. Counsel filed several motions continuance and funds hire for additional despite investigate motions, experts these However, and to case. did not obtain concerns, the defense with counsels’ and consistent by September investigators, experts funds for lawyers stopped making payments to the defense Council Standards altogether. funds additional Council believed Standards approximately pay June until the case available would time, sufficient funds would if, even at that 2008, and was uncertain the case forward. available move emergency Citronberg to obtain filed motion and West an hearing funding, motion, 26, on the and at a November light funding In of not available. clear that additional was became facing funding problem Council, moved the the State Standards the they could be the case so that counsel removed from to have Weis’ replaced paid Public from Judicial Circuit with counsel the Griffin — lawyers represented had Weis the office whose Defender’s Office replaced by Citronberg public being These defenders and West. until during stipulated course of their receive their salaries the would representation and the Council would not Standards granted responsible paying for them. The trial court the State’s public the motion, and from local defender’s office counsel replace Citronberg appointed to and West. cooperate replacement attorneys from

Weis refused to with his writing public in the that, office. He stated on the defender’s even speak anyone the he did not want to with counsel,1 advice of Although public the defenders defender’s office about case. experienced attorneys in the who tried death cases were had despite acknowledged they past, they and the fact that that would they priority, represent 10, 2007, Weis their first on December the the moved to withdraw from case. Their stated reasons for (1) replacement primarily, included, counsels’ concern withdrawal that his refusal they represent light competently would not be able Weis light approaching cooperate with them and the (2) February inability replacement date; and 2008 trial counsels’ relationship developed replicate working had with his the that Weis attorneys prior attorneys up prior and the work that had done Replacement point in the renewed their motion to that case. counsel January again citing 2008, 17, on Weis’ refusal to work withdraw replacement however, motion, them. In renewed counsel this that a lack of cited additional reasons for the withdrawal included experts, investigation, replace- travel; the that fact yet opportunity had an to review the extensive ment counsel had not counsel, pro Stephen Bright, appearance B. made an in the case for This bono right process.” purpose representing regard due Weis “with to his to counsel and limited case; files in the expertise and the lack of “time defender’s office’s investigation [was] to conduct the that extensive neces- sary” in the case. February brought against 2008,

In a mandamus action judge attempt judge Citronberg trial an to force to reinstate attorneys. However, and West as his before an was entered in order April agreed parties 25, action, 2008, mandamus on stipulation Citronberg that and West be reinstated as would Weis’ attorneys; any case be set would not for trial earlier than January “irrevocably waive[ ] right 2009; and Weis would upon any alleged [case] seek in the further continuances based manpower prepare or actual lack of funds or or time to said case for stipulation, February trial.” 2009, Based on on the trial court Citronberg reinstated Weis’ West as counsel. evidentiary

On June 1, 2009, the trial court ordered hearing place July 8, take on and that commence would August being However, and West still paid by the Council, Standards and on June 24, counsel filed a discharge acquittal motion to dismiss indictment alleged based on an violation of trial. July evidentiary hearing, At the the Standards Council agreed provide funding significantly to defense, for a Weis’ but at reduced amount from the that amount counsel believed was neces- sary adequate in order to defense. The trial court denied discharge acquittal, prompting appeal. Weis’ motion for evaluating speedy 1. In claim, constitutional trial we must four-part balancing Wingo, consider the 407 U. S. 514 test outlined in Barker v. (92 101) (1972). SC 33 LE2d test, Under this the Court must examine:

(1) (2) (3) (4) length delay; delay; the reasons for the right [to speedy trial]; defendant’s assertion of the Standing the alone, the defendant. none of necessary, these are a factors or sufficient condition to a finding deprivation right speedy trial, the but part balancing rather should considered of a test. (253 719) Washington v. State, 243 Ga. 330 SE2d (1979). weigh apply [Weis’] Thus, we must these factors together determine if a constitutional speedy abridged. State, trial has been Treadwell v. (211 760) (1975). 468 SE2d (Citation omitted.) (663 169) Layman State, v. 284 Ga. 84 SE2d (2008). deny appeal, On a trial a court’s decision to motion for discharge alleged speedy on an based trial violation is reviewed

49 265 763 State, v. Ga. standard. Burns under an abuse of discretion (462 622) (1995). SE2d

(a) delay: Length is factor This triggering is some Until there a mechanism. to some extent prejudicial, presumptively delay sity no there is neces- is which go inquiry into the into factors that the other analysis, trigger must a trial an accused To balance. allege arrest and that the between accusation interval ordinary dividing from trial crossed the threshold has delay, prejudicial” “presumptively definition, since, he complain government has denied him a cannot that prosecuted “speedy” case with fact, if it his has, trial delay customary assumption promptness. that is prejudicial improper presumptively can result in is as it unnecessary judicial analysis. constitutional omitted.) Wimberly (Citations, punctuation State, v. and footnote (608 (2005). 625) concedes, SE2d As the State Ga. year period the date arrest the date three-and-a-half of Weis’ prejudicial. put presumptively that his on a calendar is case was (2001) (52-month State, See Brannen v. SE2d Ga. delay presumptively prejudicial). Therefore, we consider the is conjunction remaining factors in this factor. Barker Ruffin 284 Ga. 52 (b) delay: funding claims the lack of Reason for West mount primary Citronberg and his defense reason for is delay bringing therefore, trial, that, this factor reveals case against weighed record, however, should be the State. systemic “a caused Weis’assertion incorrect. While system’ charged in the defender could be ‘breakdown (C) (129 (Vermont Brillon, _ U.S __ (III) State” LE2d (citation 231) (2009) omitted)), punctuation there was no system” “public here such such entire defender “breakdown” against solely weighed reason for the could fully although explained lack of below, State. As more delay in it not the sole factor to some of the was contributed delay. contributing the behavior of his behavior, the own to delay, “appropri attorneys, must to the and we also contributed delay.” ately during [Weis’] the . . . Id. at . . into account role . take (HI) (B). Citronberg being paid the Standards were Here, West approximately to six months of their service Council the first for payments months, to next several Weis. the course of the Over sporadic, eventually, into eleven months counsel more became 50 representation, 26, At

their ing non-existent. the November 2007 hear- emergency funding, it counsels’ motion to obtain became clear pay that the Standards Council did not have funds additional to counsel and that more funds would not be available for several light funding In that months at the earliest. of the State issues inability to counsels’ to the forward the contributed move case after representation bringing six of their in first months the case to trial after those first six months and 26, the

up to the November hearing properly weighed against 2007 the State. See Ruffin, (2) (ii) (“The (b) supra, inquiry purposes 284 at 61 relevant for Ga. [Barker] prosecutor of the second factor is not whether the the delay, responsibility more the accused bears but ‘whether the government or the criminal defendant is more blame that (footnote omitted). ”) delay’ emphasis However, at the Novem- hearing, 26, ber 2007 order to alleviate the Standards Council’s funding forward, issues and to allow case to move the trial court appointed paid public counsel the local that defender’s office pay. although Council Thus, the Standards did have to there funding delay up point issues that had contributed to the to the hearing, system” “public of the November had defender funding point, not broken attorneys from the lack of down as there were public system available within defender to continue “systemic Indeed, the case. there can no breakdown (Vermont system” supra) defender attorneys v. Brillon, when there are still system represent within who are available to Accordingly, criminal defendant. extent that the caused by weighed against only State, the lack of to the is attributable can leading up

the State for the months to the Novem- hearing appointed ber new when counsel for Weis. though preferred Even his have West as “ attorneys, and we have held ‘it is abuse of discretion deny request appoint prefer- the defendant’s counsel ” “ by objective supported ence’ where ‘is that choice considerations ” favoring appointment preferred we also counsel,’ have “ explained countervailing that those ‘no cases involved consider- ” comparable weight.’ State, ations SE2d Grant v. 586) (2005) (quoting Amadeo v. 259 Ga. 181) (1989)). Seeking move the case forward an effort to prevent requirement a violation of the constitutional surely qualifies “countervailing justifying as a consideration” appointment objection. replacement counsel, even over the defendant’s (La. Reeves, State So3d 1064-1065 (“insoluble” funding problem relating attorneys for state-wide Project Capital representing sup- Defense who had been defendant ported the substitution of the local defender over the defen- provisions speedy objection). trial the constitutional While dant’s recognize rights, they safeguard the also defendant’s the primarily — — including in the public’s of crime victims the interest interest unnecessary delay, cases without of criminal resolution protect responsibility prosecutor those a the trial court have (II) (“The Wingo, supra, U. S. at 519 Barker v. interests. See right generically speedy the other of different a trial is protection of the rights in the Constitution for enshrined persons general that all accused concern In addition to accused. procedures, according a societal there is decent and fair treated separate providing speedy from, and at exists a trial which in interest times in (III) accused”); opposition id. at 527 to, the interests prosecutions, bringing (“[Sjociety particular interest in swift has protect society’s representatives are the ones who should (III) (A) interest”). States, U. S. 489 United See also Zedner v. 749) (2006) (discussing interest LE2d 1976, 164 Act). Speedy speedy In this Trial of the federal trial the context by appointing appropriate regard, action took the trial court represent Weis. defenders public defender’s office had been from the Once the new counsel by appointed action work with them. This case, Weis refused to nearly impossible delay by making new for his further Weis caused necessarily attorneys must forward, the case and such to move (2) (539 weighed against 273 Ga. 231 Weis. Jones (2000). App. LEXIS State, 2010 Ala. Crim. Indeed, even Lane v. support proposition by Weis dissent, cited does newly appointed counsel and insist on entitled to rebuff his keeping preferred case, the circumstances of this his counsel under “[a] of choice cannot use the to counsel as as criminal defendant (Citations punctua- delay judicial proceedings.” a means to omitted.) by problem Further, created Weis’refusal was exacerbated tion Id. at 47. attorneys pro replacement cooperate his actually advised Weis not to work with counsel for who

bono pro attorneys. replacement of bono counsel The actions Weis’ his must also be Vermont v. analysis. charged against purposes of our Weis for (III) (C) (“delays supra, caused defense Brillon, at defendant”). properly fact, In over the to the counsel are attributed period and West course of the entire fifteen-month with his case, made no effort to work were removed from the replacement attorneys every made effort to make sure and instead — attorneys preferred go without that the case could not forward against judge filing going the trial a mandamus action even as far as place Citronberg judge attempt back and West to force the “[ajbsent respect, that, here, the record reveals onto the case. In this replacement [his [Weis’] to force the withdrawal deliberate efforts attorneys], speedy-trial no issue would have arisen. The effect of [must be] analysis delay.” [our] [the] these . . . events factored into (III) (B). (2) (actions supra, Id. Jones, See also 273 Ga. at 233 “frequently cooperate appointed defendant who refused to with his repeatedly sought replaced” weighed counsel and to have them against purposes analysis). him for preferred placed

Further, the efforts of Weis’ counsel to be back allowing onto the instead of the case to move forward with replacement delay. Specifically, counsel, also caused additional de- (1) spite Citronberg they the fact that and West asserted that could (2) go funding; Citronberg not forward without additional and West early funding knew as as November 2007 that no additional would be (3) available for them for at months; least five the trial court had appointed competent attorneys public from the defender’s office in Citronberg order to move the case forward; and West nevertheless fought placed Being placed to be back onto the case. case, back on the change immediately however, would not the fact that no funds were pay change they available to them, and would not the fact that knew might pay they that additional funds not be available to them if placed place Citronberg fought back onto the In short, case.2 and West they they themselves back onto a case that claimed that could funding, knowing strong not move forward due to a lack of possibility immediately that no additional would be avail- able to them to allow them to move forward with the case in the they only delay any manner that desired. Not did such efforts further they trial, also undermined the trial court’s efforts to avoid a by having appointed replacement trial issue counsel in the first place. Citronberg Under circumstances, such and West cannot show paid that their failure to be has caused the here, as the by funding caused, not issues, but counsels’ own actions in insisting being reassigned they they in case which knew that (when likely paid failing paid very could not to be was the reason they they case), that claimed that could not move forward with the they replacement already and in which knew that counsel had been provided Accordingly, delay resulting to their former client. from weighed against these actions must be Weis. Brillon, Vermont v. (III) (C). (2) supra, supra, (delay at Jones, also 273 Ga. at 233 judges caused motions of defense counsel to have two trial recused based immediately paid trial.” effort to upon any alleged he April and West reassigned if agreed they to Weis’ case reveals that or actual lack stipulation were reinstated they would not “seek of funds Citronberg to the case. they manpower and West entered with the were well aware that Again, further or time to continuances part prepare they might State said case for in stipulation, in not be [case] their State). weighed against case could not be public case does removed from the desire to be defender’s “unwillingness change to move result, as defense counsels’ not (Citation may to the State.” not be attributed the case forward (III) (A). omitted.) supra, punctuation Even Brillon, Vermont they though the funds that did not receive all defenders attorneys change requested fact that the did not in the they being paid represent had a Weis, and that themselves were responsibility by representing Weis to the case forward to move (“A lawyer ability. e.g., Rule 1.3 shall See, Ga. State Bar best of their representing diligence promptness act with reasonable lawyer diligence means that a as used this Rule client. Reasonable just the client effect cause to the detriment of not without shall legal willfully disregard willfully matter entrusted to abandon or (1980) lawyer.”); SE2d Miller v. despite (denying counsel’s belief counsel’s motion to withdraw viable). longer Arrington State, 286 See also client’s defense was no 438) (2009) (trial (6) (687 court did not abuse its Ga. mitigation specialist by failing discretion funds where mitigation “did establish that the services of a defendant specialist such . . . were critical to his defense or that without unfair”) (citation omitted). To assistance his trial would be rendered ability defenders had concerns about their the extent that effectively represent Weis, the time at which to address those through pursuing concerns would be an ineffective assistance against necessary, if them, trial, claim not for Weis seek after discharge acquittal alleged speedy an trial violation based on replacement counsel, where Weis’ own refusal to work with replacement unwillingness forward, counsel’s own to move the case delay regard, of the trial. In this contributed to Supreme that, United States Court has . . . stated as the long constitutionally ineffective, defen- as counsel is not [Cit.] attorney dant must “bear the risk of extent error.” To argument implicates potential [that Weis’] claim of pre- counsel, have not been ineffective assistance of we any and, event, in it would be sented with this issue juncture. premature it at this for this Court to address (Pa. 2009). 4 To the 1113, 1119, A2d n. Baird, Commonwealth v. 975 may replacement concerned that counsel have also been extent that representation Weis, the time hinder their trial court errors would through through appeal, to address such errors would be withdrawing supra; supra. Arrington, Miller, from the case. See balancing that, in the reasons for therefore conclude We against that are attributable to the State those that are here, attributable to the defendant Barker factor this must be weighed against Weis. (c) right: right speedy Assertion Weis did not assert his to a 24, 2009,

trial until June almost a month after case had this been placed August 3, on an trial calendar. He claims that this is the fault of the State due to preferred issues that left him without his explained However, above, counsel several months. as replacement counsel, was Weis’ own refusal to work with his trying being paid, insistence to reinstate counsel that was not preferred his actions, counsels’ that contributed to the of Weis’ moving connection, case State that forward. In this it is not the fault of the right timely

didWeis not assert his in a more manner. Accordingly, weighed against e.g., this factor will be See, Weis. (c) (1) 283) (2010) (Where State, Marshall v. Ga. SE2d years defendant “waited several his trial, assert nearing [Barker] until the case was the time trial, factor, given evidentiary ‘strong weight,’ weighted] against which must be [defendant]”) (citation omitted); Harris v. 284 Ga. 455 (2008). SE2d (d) Prejudice Finally, we consider the defendant: (1) the defendant “based on three factors: whether there has been (2) oppressive pre-trial anxiety incarceration; and concern of the (3) possibility accused; and of harm to the accused’s defense.” (1) (d) (673 Bowling State, Here, oppressive pre-trial there has been no incarceration, as Weis has showing subjected made no that he has been to substandard condi- county jail tions he Further, where has been housed. even though Weis and the dissent focus much of their attention on the anxiety experienced and concern that Weis has incarcerated, while weigh heavily the record reveals that this factor should not Weis’ favor as Weis and the Indeed, dissent would contend. as Weis reply independent spends concedes in brief, time that Weis jail, already “major he suffers from mental illnesses cause suffering [him] [including] major depression, anxiety, . . . severe schizophrenia auditory which causes both and visual hallucina- though anxiety during tions.” Even became worse the time county jail, that he has been in the it cannot be determined from the worsening record whether or not the of his mental state was a changing pre-existing function of his medications, his mental ill- jail, nesses, his time in or some combination of all of these factors. What can be determined from record, however, is that Weis did experience type lengthy county jail not in incarceration a by very anxiety beyond would, normally nature, its cause that which is general. Layman,

associated with in incarceration See (where “pretrial incarceration was supra, defendant’s 284 Ga. at 86 pretrial incarcera- “that his claimed defendant excessive,” and anxiety health,” this great and concern him caused tion has “[a]nxiety weigh and concern favor, as in defendant’s did not factor always present extent, and . . . absent to some are accused of the likely showing in defen- determinative to be are not some unusual omitted). favor”) (citation punctuation dant’s possibility defense any to the accused’s of harm event, the In regarding considered elements to be “most serious” the potential supra, 407 U. S. prejudice Barker, to the defendant. any respect shown that has not element, Weis to this With 532. explained case-in-chief, and, as for his are unavailable witnesses under shown failing above, he has not factors considered the other Barker egregious persistence delay by in or the State intentional that this element prosecute conclusion lead to the that would (III) Doggett weighs States, 505 U. S. v. United in his favor.3See (B) (112 LE2d 2686, 120 foregoing cannot be reasons, to Weis all of the 2. For delayed funding by inadequate Standards presumed deficiency funding neither an shows such in this Council part egregious Accord- of the State. on nor an intentional ingly, denying its discretion did not abuse the trial court discharge acquittal. motion for except J., Hunstein, Judgment concur, C. All the Justices affirmed. Thompson, JJ., dissent. who

Benham and dissenting. THOMPSON, Justice, majority wrongly places for the the blame

I believe the rightly where defendant, rather'than on case on the Accordingly, belongs. I dissent. charged February 2006, arrested on

Weis was the death of Catherine in connection with and other crimes murder August filed a King. 25, the State later, on months Six-and-a-half penalty. counsel, H. Robert death Defense intent to notice of seek appearances on behalf West, M. entered and Thomas 12, on October lodged against was 22, 2006, a second indictment November On by the death intent to seek notice of That was followed second Weis. February arraigned 11, 2006. Weis on December year arrest. one after his 2007, more than witness, mother, mitigation potential died though that his Weis contends Even attorneys, delay brought Weis and his emphasize about that the we must November Council, delayed this case from the trial of faced the Standards not the issues have been available. August witness would when this

In meantime, defense counsel filed a number of motions for investigate a continuance to obtain to funds the case. The motions prompted by the fact that the Public Defender Standards being adequately pay Council was not funded and was unable to for experts to assist inWeis his defense. The motions were denied. In September 2007, funds, due to a lack of the Standards Council stopped making payments compensate lawyers. to defense emergency funding,

Defense filed counsel an motion to obtain pointing they being paid they out that were not and that were still experts. hearing without funds to hire On 26, 2007, November at a on the motion, Crawford, Mack director of Council, the Standards pay depleted testified that funds to defense counsel were and he was they light unable to state when would be available. In of that testimony, attorney replace the district moved the court to defense attorneys public counsel with from the local defender’s office.4The granted objection. timely court the motion over Weis’ Weis moved the previous trial court to reconsider the removal of his defense counsel; public simultaneously defenders moved to withdraw as counsel. Both motions were denied. January again

On 17, 2008, the defenders moved to pointing expertise counsel, withdraw as out their “lack of time and investigation necessary” to conduct the extensive in this they death case and the fact that were unable to obtain funds mitigation specialist. brought for a Three later, weeks Weis proceeding against judge, seeking mandamus original the trial to have his defense counsel, West, and reinstated. There- April parties stipulated original after, on 25, 2008, the defense counsel would be approved reinstated; and the Standards Council funding representation for the of Weis in the $255,000. amount of Those funds were available, never made however, and on December petition 31, 2008, Weis filed a second time, mandamus. This petition require sign aimed his at Crawford him to a contract and provide promised the funds for the defense. original

The trial court reinstated defense counsel on February they 11, 2009, 15 months after were dismissed the trial they compensated court. However, were still not the Standards agree provide Council, which refused even to a sum certain for Weis’ defense. later,

Four months on June 2009, the trial court ordered that evidentiary hearing place July an take on and that trial would provide legal The Standards Council would not have to fees for the defender lawyers stipulated because these represen would receive their salaries in the course of their tation. paid August counsel was still without who on commence investigator dismiss defense, moved to hire for his funds alleging denied his counsel indictment, the trial court discharge acquittal. with a motion for trial. He followed agreed appeared hearing July Crawford At He $75,000. counsel the amount for defense investigating agreed pay $40,000 for costs associated also case. registry paid the court. into the These were to be amounts the indictment dismiss trial court denied Weis’ motions discharge acquittal. States, of the United The Sixth Amendment to the Constitution XI, I, I, Par. State, Art. Sec. of this as well guarantee the Constitution rights given speedy trial. These an accused shall be a charges, bringing the of formal arrest, of or accrue the time (438 State, 730, 731 SE2d is Boseman v. 263 Ga. earlier. whichever 626) (1994). (92 101) Wingo, 2182, 33 514 SC LE2d In Barker v. 407 U. S. (1972), Supreme of the United States identified the Court determining a to be court four factors considered speedy right a trial accused’s whether an had been violated. These factors are: constitutional (a) length The (c) (b) delay, delay, reason the defendant’s the for the (d) right, the to the defendant. assertion of his Supreme it 407 U. S. at 530. The regarded Court further stated that necessary none of the factors as either a finding deprivation right of of a the sufficient condition a speedy trial but rather that the factors should be consid- together balancing the ered a test of the conduct of prosecution defendant. (1) (253 719) (1979). My

Washington State, 329, v. 243 Ga. 330 SE2d these leads me conclude that the trial court examination of factors ruling speedy a its in Carr, trial was abused not violated. State discretion Weis’ (2004). (598 468) v. 126 SE2d Length delay. length delay a dual a. The factor serves delay reviewing must whether the First, function. was a court determine long “presumptively prejudi- sufficiently as so to be considered analysis puts through so, the Barker cial.” If the court the case delay weigh length delay time to looks at factor second significant enquiry conjunction other “This latter is with the factors. pretrial analysis presumption . . . the to the because Doggett delay prejudiced time.” has the accused intensifies over (112 LE2d U. S. States, 505 United (1992); State, SE2d Ga. Ruffin spanning case, The in this the time between Weis’ arrest filing years dismiss, and the of his motion to exceeds three-and-a-half majority presumptively prejudicial. and, concludes, as the is Doggett, (delay “presumptively prejudicial” 505 U. S. at n. 1 year). approaches capital Furthermore, as one even in a case such delay exceeding years long. this, as especially three-and-a-half is too This is during where, here,

so defendant has been incarcerated supra. Accordingly, the entire time. See Ruffin, this factor should be weighed against prosecution. delay. b. Reason does record not show that

prosecution intentionally delayed gain this case to a tactical advan- tage. weighted heavily against prosecu- Thus, this factor is not Regardless Barker, tion. 407 U. motive, S. at 531. of its however, it is delay. prosecution clear to me that the State is to for the blame took an inordinate amount of time to decide whether to seek the penalty. death The Public Defender Council, Standards a state agency, adequately though failed to fund the defense5 even it was charged responsibility provide legal representa- with effective indigent prosecution suggested replacing tion to defendants.6 The original remedy counsel with defenders to the state’s budgetary problems. suggestion This because, added to the original unlike counsel, the defenders were unfamiliar with working relationship did not have a and lacked expertise generally time and to handle this death case. See 586) (2005). Finally, Grant v. Standards Council 278 Ga. 817 when the

ultimately promised pay to funds to investigator, defense counsel and to hire an it did so on the eve of steep leaving discount, and at a Weis with little time and no real ability to mount a defense. prosecution asserts that it cannot be blamed for the provide

Standards Council’s failure However, to funds. the Stan- government. actor, dards Council is a state an Thus, arm of the delay budgetary problems attributed to the Council’s provide and its refusal to funds for the defense must be laid at the (relevant prosecution. supra inquiry feet of the See Ruffin, at 61 is prosecutor responsible not whether or defendant is but government responsible delay). whether or defendant is _ U. S. _ (129 Vermont v. Brillon, 1283, 1292, SC 173 LE2d 231) (2009), majority, apposite simple cited is not for the responsible delay. reason that defense counsel were not for the 5 early promises provide adequate The Standards Council’s funds for defense counsel investigator time, and an paid went unfulfilled. For most of the defense counsel were not at all. 6 seq. § OCGA 17-12-1 et reasoning, contrary majority’s case does fall this to the Rather, acknowledged exception a “breakdown Brillon, i.e., within the system,” public to the State. should be attributed defender which justified supra (delay not because funds are Barker, is also turn”) (White, concurring). lacking J., case await its and “each must provide funds, it State’s failure to because, That were not for the is provide system public would have worked defender statewide permit counsel of his him to continue with counsel and Weis with choice. responsible majority posits for the that defendant himself is counsel who he refused the assistance substitute because accept budget impasse. appointed I cannot to solve the State’s

were they acknowledged position. that First, the defenders capital prepared inadequately and that without to defend case experts investigators feasible funds for would additional they asked to allowed reason, to do so. For this themselves fundamentally, defendant Second, and more withdraw as counsel. proceed original counsel, “who had trial with his was entitled to allegiance thoroughly [and] were trust, confidence, his earned State, case.” v. familiar with 470 defendant’s Amadeo been forced to Defendant should not have original new, counsel in counsel and unfamiliar order choose between budgetary justify problems did not to seek a trial. The State’s original Slappy, (“[T]he the removal of counsel. See Morris defendant’s (1983) 1, 23, n. 5 75 LE2d U. S. may indigent recognition preclude an defen- considerations dant’s [court-appointed] counsel, such to choose own as the efficiency. preclude economy interest in . . should not State’s recognition indigent repre- in continued of an defendant’s interest attorney developed appointed has sentation an with whom he confidence.”) (Brennan, concurring relationship J., of trust and (decided result). App. Ala. LEXIS See also Lane Crim. 2010) (“ appointed represent indigent Feb. ‘once is counsel private it be defendant, whether defender or a volunteer attorney-client relationship attorney, parties enter which into an had retained. To hold is no less inviolable than if counsel been subject relationship be to to an unwarranted otherwise would and merely poverty arising from the invidious discrimination ”). accused’ question required beyond It the State is indigent appointed expert criminal defen- counsel and assistance 53) (105 Oklahoma, 68 84 LE2d Ake v. 470 U. S. SC dants. (83 (1985); Wainwright, 792, 9 LE2d U. S. 335 SC Gideon v. 372 (1963). against if to seek the death Thus, the State wants adequate indigent a it funds for full and defendant, must vigorous responsibility defense. The cannot shirk this because State experiencing budgetary it It still is constraints. must fulfill its obligation bring committing to accused constitutional those speedy perhaps “[T]he to trial in crimes a manner. short best any objection expense given by upon to based answer was Supreme present like Court of Wisconsin a case much one: ‘We put price tag upon rights.’ [Cit.]” will constitutional Smith (89 607) (1969). Hooey, 393 U. n. 11 S. SC LE2d The bottom line here is that the should State not be allowed to fully prosecutors hamstrings arm its while it the defense and blames delay. weighed for defendant against resultant This factor should be prosecution responsibility because “the ultimate for such government circumstances must rest with the rather than supra Barker, defendant.” at 531. right speedy c. assertion to trial. Weis did not assert his

speedy right put trial until the case on a was trial calendar. Ordinarily, weigh such a would lead this Court to factor against case, however, the defendant. In this Weis found himself on requests the horns of a dilemma. He made numerous to fund his given defense, all to no avail.7Until he funds to defense, was mount a prepare prepare he could not trial. And if trial, he could not speedy would have been reckless to ask for a trial. these Under weighed against circumstances, this factor should not be Weis. (561 79) (2002) (defendant’s Redding, State 274 Ga. 831 SE2d request speedy appeared to trial failure until case on the calendar weighed against light prosecution’s represen- was not tation him in docket). placed case would be on dead speedy d. The trial defendant. protect justice essential three basic demands of the criminal system: prevent pretrial oppressive incarceration, undue anxiety possibilities minimize concern, excessive to limit impair ability prepare that excessive will defendant’s defend the case. Ewell, 116, 120 United States v. U. S. 627) (1966). these, 15 LE2d “Of the most serious is the last, because inability adequately prepare of a defendant skews the case supra system.” fairness the entire Barker, at 532. I believe the speedy compromised of a protections denial trial this case ways.

in the last two recognized anxiety present Courts have and concern is every e.g., some extent case. See, criminal Jackson v. anxiety Thus, Ga. 782 and concern will not 7 Ultimately, trial, funds, promised on the he eve of some hut not before filed a petition against for mandamus Crawford. circumstances weigh of unusual in the absence favor a defendant’s upon impacting anxiety suggesting and concern he excessive suffered supra. Weis has made See Boseman health or finances. from severe showing. he suffers The record demonstrates such a auditory anxiety experiences halluci- and depression visual given mental Although for his medications8 has been he nations. during and led to his confinement worsened illnesses, his condition attempts. States United in this connection three suicide 1976). (3rd Dreyer, 115, 116 Cir. F2d ability impairment prejudice, type to of the last As to prejudice Doggett will not prepare that such makes clear defense, a legitimate delay presumed reason; that it will a if the is for be delay overwhelming inten- “present if the is for dismissal” presumed case an delay prejudice caused where tional; and that will be persistence amounting “egregious by government negligence to an presumption failing prosecute.” As for the Id. at in prejudice, to proof particular- Doggett that “affirmative concluded every speedy prejudice trial claim” because to is not essential ized reliability delay compromises presumptively a trial “excessive identify.” prove ways party Id. matter, or, can that neither at 655. year in this case stems

Inasmuch as the three-and-a-half government’s defense, I would not failure to fund the from the require prejudice. particularized Rather, I demonstrate Weis to ability present compromises presume that the would part, knowing adequate conclusion, in I defense. Id. reach particularly case, defense in a death that in mitigating investigate circumstances at the facts and counsel must sty- opportunity, here, counsel were that, defense the earliest ability carry time, out that task. At same mied in their every opportunity consistently, prosecution, had which was funded complete investigation preparation for trial. its majority prejudice be factor must concludes that point against weighed to evidence that has because he cannot Weis gone missing unavailable. This have become or witnesses who prejudice scrutiny. argument above, is to As noted cannot withstand government’s presumed failure to from the it stems where legitimate. simply prosecute The failure government’s are for reasons which direct result of is the move this case forward obligation unwillingness constitutional to meet its investigation. necessary legal for a full the funds counsel and Haldol, Klonopin. Thorazine, Cogentin, Prozac and given Seroquel, Weis has been justified,9 upon This failure cannot be and it casts doubt the fairness reliability ways prosecu- of a trial in that neither nor the expected identify. upon tion, can be Thus, Id. it is not incumbent prejudice. Weisto demonstrate actual Arizona, See Moore v. 414 U. S. 183) (1973) (rejecting 38 LE2d “notion that an prejudice necessary prove affirmative demonstration of trial”). denial of the constitutional Barker, See also (“If supra disappear during delay, at 532 witnesses die or prejudice prejudice is obvious. There is also if defense witnesses are accurately past. unable to recall events of the distant Loss of memory, always however, is not reflected in the record because what shown.”). forgotten rarely has been can pretrial Weis has demonstrated insofar as his deten- impacted negatively tion has presumption on his mental health. Moreover, the prejudiced ability prepare

is that he has been in his Accordingly, weighs a defense. against last, this and most serious factor, prosecution. supra. Carr, See State v. None of the four factors identified in Barker are necessary finding a deprivation or sufficient condition to the of a right speedy they Rather, trial. are together related factors and must be considered such may other circumstances as be relevant. In sum, these qualities; factors have no talismanic courts must still en- gage balancing process. in a difficult and sensitive But, dealing right because we are with a fundamental of process recogni- accused, this must be carried out with full speedy specifi- tion that the accused’s interest trial is cally affirmed in the Constitution. supra

Barker, at 533. right This fundamental constitutional should be examined with knowledge jeopardy, where, as here, defendant’s life is “particularly every the Court must be sensitive to insure that safeguard Gregg Georgia, is observed.” U. S. 2909, 49 LE2d With in mind, I would balance the four factors set forth in Barker and conclude that Weis has been denied his constitutional trial.

I am authorized to state that Chief Justice Hunstein and Justice join Benham in this dissent. trying This is not a case which defense counsel are to exact exorbitant fees from the coffers; contrary, simply seeking state on the counsel are to fulfill their constitutional mandate representation. effective March Decided April denied

Reconsideration West, B. Bright, Stephen M. H. Thomas Citronberg, Robert appellant. Smith, Jr., Assis- Ballard, Robert W Attorney, District L.

Scott General, Baker, Patricia Attorney E. Thurbert Attorney, tant District General, for Burton, appellee. Attorney Assistant Senior Attaway B. THE STATE. HUMPHREYS S09P1428. Justice.

NAHMIAS, of murder of two counts Ian Stacey Humphreys A convicted jury doubt a reasonable beyond finding related offenses. After recom- circumstances, jury statutory aggravating multiple convictions, and the the murder sentences for mended death 17-10-30,17-10-31 §§ See OCGA judgment accordingly. court entered (a). he denied, appeals for new trial motion Humphreys’s below, we reasons set forth and sentences.1 For the convictions affirm. the Evidence

Sufficiency of to the in the most favorable evidence, light construed 1. The 12:40. p.m. At verdicts, following. approximately showed the jury’s was still on 3, 2003, a convicted felon who Humphreys, November sales office located company’s a home construction entered parole, Williams County. Cindy in Cobb home for a new subdivision a model 12, 2004, County grand 3, February a Cobb on November 2003. On The crimes occurred murder, murder, aggravated felony jury Humphreys each of malice indicted on two counts possession robbery, of a assault, kidnapping hodily injury, and one count of and armed with date, notice of its intent to by the State filed written a convicted felon. On the same firearm 26, 2007, 4, September began September penalty. Jury 2007. On selection on seek the death felon, following by guilty possession Humphreys pleaded of a firearm a convicted day. jury previous jury of the indictment on all other counts convictions 30, September on 2007. the malice murder convictions recommended death sentences for murders, felony murder convictions imposed for the trial court death sentences (4) (434 by operation 371-372 law. Malcolm v. vacated kidnapping imposed life sentence for each count a consecutive The trial court also aggravated robbery, 20-year count of bodily injury sentences for each concurrent and armed five-year possession a convicted felon. assault, of a firearm sentence and a concurrent 10, 2007, on October which he amended Humphreys 2008, for new trial on October filed a motion February Humphreys filed a notice 2009. the trial court denied on and which appeal 20, 2009, docketed in 2009. The appeal he amended on March March which on 7, 2009, orally argued September May and was Court on

Case Details

Case Name: Weis v. State

Court Name: Supreme Court of Georgia

Date Published: Mar 25, 2010

Citation: 694 S.E.2d 350

Docket Number: S09A1951

Court Abbreviation: Ga.