AMADEO v. THE STATE., 259 Ga. 469, 384 S.E.2.d 181
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Judgment reversed. All the Justices concur.
Summary
Judgment reversed. All the Justices concur.
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Joseph H. Briley, District Attorney, for appellee.Hansell & Post, Stephen O. Kinnard, Ruth E. Friedman, Stephen B. Bright, for appellant.
The issue here is whether the trial court abused its discretion in refusing to appoint the two lawyers who had previously represented the defendant and by appointing new local counsel for the retrial of defendant's capital case. We hold in the affirmative and reverse.
Tony B. Amadeo was convicted of murder and given the death sentence in 1977. We affirmed in Amadeo v. State,
1. We recognize that "the Sixth Amendment does not grant a defendant, who does have the absolute and unqualified right to appointed counsel, the additional right to counsel of his own choosing." Preston v. State,
2. Here we are faced with the issue of the extent to which a trial court must consider the reappointment of lawyers with whom the defendant has already developed a close relationship. We are guided by the decision of Harris v. People, 567 P2d 750 (140 Cal. Rptr. 318, 1977). In that case, the Supreme Court of California noted that, while the appointment of counsel is a matter entrusted to the court's exercise of discretion, the appointment by the court of an individual meeting the minimum standards of competency does not insulate the court's decision from all review. Id. at 757. Rather, the court's exercise of its discretion is to be reviewed in light of the factors before the court at the time of its decision. In reversing the judgment of the trial court refusing to appoint the defendant's prior counsel, the California court emphasized not the subjective desire of the defendant to be represented by the lawyers who had earned his trust, confidence, and allegiance, but the objective fact that the prior lawyers, through their representation of the defendant, were thoroughly familiar with the defendant's case. Id. at 758. The California court noted that while an indigent defendant's preference for a particular attorney must be considered by the trial court, it is not a determinative factor requiring the appointment of that attorney. Id. at 756. However, as in the case before us, not only did the defendant argue he had developed a relationship of trust and confidence with prior counsel, but, also, the defendant's newly appointed counsel argued in favor of representation by the prior lawyers based on the legal and factual complexities of the case, which they knew they would also have to master. Convinced that these factors must play an important part in the exercise of the trial court's discretion, we adopt the conclusion of the Harris court:
In summary, while we reaffirm today the basic holding . . . that the court's discretion in the appointment of counsel is not to be limited or constrained by a defendant's bare statement of personal preference, we hold that when that statement of preference, timely made, is supported by objective considerations of the consequence here involved, and where there are no countervailing considerations of comparable weight, it is an abuse of sound judicial discretion to deny the defendant's request to appoint the counsel of his preference.
Id. at 759.
That is to say, under the facts of this case, the considerations favoring the appointment of Amadeo's previous counsel clearly outweighed any opposing consideration, including the desirability of involving local lawyers. Therefore the trial court's refusal to appoint them amounted to an abuse of discretion. Its order is reversed and the matter is remanded for appointment of previous counsel. [5]
Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, amicus curiae.
Notes:
1. These lawyers specialize in death penalty cases and, typically, will be involved, at no expense to the public or to the defendant, in collateral attacks against the death sentence. This type of representation ordinarily covers a period of several years and of necessity the lawyers become extremely well acquainted with all aspects of the case.
2. "[I]f an indigent defendant can make his own arrangements for attorney representation, whether with the financial assistance of family or friends, or by persuading an attorney to represent him pro bono, he ordinarily may do so." Lipham v. State,
3. Among the goals of the Georgia Indigent Defense Act are "(5) [a] system to ensure that the local responsibility to provide fair and adequate defense to indigent persons is met"; and "(13) [w]here feasible, that the local members of the bar be utilized in providing indigent defense services." (Emphasis supplied.) OCGA
4. Appellant suggests that such previous experience should be a prerequisite to appointment. Their argument is supported by ABA Guidelines for Appointment and Performance of Counsel in Death Penalty Cases 5.1, adopted at the 1989 mid-year meeting of the ABA. See also the Georgia Indigent Defense Council, Standards for Indigent Defense, Part I, which provides in part:
In cases where the death penalty is sought the attorney must have participated in the defense of one case in which the death penalty was sought and which resulted in a jury trial. . . .
5. Once appointed, previous counsel are entitled only to be compensated in the same reasonable manner in which local counsel would have been. Whether a particular circuit's method of compensating counsel for the indigent in a death penalty case is reasonable and adequate is a matter not before us in this case.
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This document cites
- U.S. Supreme Court - Gregg v. Georgia, 428 U.S. 153 (1976)
- Supreme Court of Georgia - PRESTON v. THE STATE., 257 Ga. 42, 354 S.E.2.d 135
- Supreme Court of Georgia - LIPHAM v. THE STATE., 257 Ga. 808, 364 S.E.2.d 840 (1988)
- Supreme Court of Georgia - CRUMPLER v. THE STATE., 249 Ga. 462, 291 S.E.2.d 497 (1982)
- Supreme Court of Georgia - AMADEO v. THE STATE., 243 Ga. 627, 255 S.E.2.d 718 (1979)
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