The Southern District of Georgia does remarkably little to provide for indigent defendants.
In early August, a forty-one-year-old man whom I’ll call Albert—he asked me not to use his real name—was released from a medium-security prison in South Carolina. Albert grew up in Statesboro, in the southeastern corner of Georgia. His mother struggled with a drug addiction, and he didn’t have a good relationship with his father; his grandmother raised him. He made it to the tenth grade before dropping out of school. Eventually, he became a small-time drug dealer. In 2009, when he was in his late twenties, the Bureau of Alcohol, Tobacco, Firearms and Explosives set up a phony store in his home town that ostensibly sold legal goods but actually existed to solicit guns and drugs from unsuspecting dealers. The bureau called the sting Operation Statesboro Blues. Sixty-seven people were arrested and charged with federal crimes. Most of them, like Albert, were young Black men.
Albert was charged in federal court, in the Southern District of Georgia, with multiple counts of possessing and dealing guns and drugs. He could not afford an attorney. In many places in the United States, the first option for legal counsel for someone in Albert’s situation would be a federal defender, someone who works full time for the government or a nonprofit representing indigent clients facing federal charges—in an office that, ideally, has the resources to fund a vigorous defense. But the Southern District of Georgia is one of three judicial districts, out of ninety-four, that do not have a defenders’ office. (The District of the Northern Mariana Islands is not eligible for such an office; the Eastern District of Kentucky also does not have one.) What it does have, in common with all federal districts, is a panel of private attorneys who can be appointed by the court to represent someone like Albert. But, while other districts maintain strict standards for membership on their panels—experience in criminal litigation, enrollment in continuing legal-education courses—Georgia’s Southern District, for a long time, required anyone who practiced law in the area to be available for appointment. Several people told me that lawyers were appointed to criminal cases almost willy-nilly. “It did not matter if you knew what you were doing or not,” Christina Hunt, the executive director of the defenders’ organization in Georgia’s Middle District, said. “Whether you practiced bankruptcy law or real-estate law. It just kind of went on a rotating basis: ‘Who hasn’t got a case? Oh, this guy. Let’s get him one.’ ”
Albert’s court-appointed lawyer was a man named Matthew Marvin Wathen. “Every question I asked him, he knew nothing,” Albert said, of Wathen. “He just kept telling me, ‘Hey, they just appointed me to you. I don’t even know your case.’ ” Albert, who speaks with a quiet directness, added, “I kept asking questions, questions. He was writing on a pad. He said he’d come back. The only other time I saw him was at my sentencing.” The judge, a Carter appointee named B. Avant Edenfield, deemed Albert an “armed career criminal,” on account of his previous drug and burglary convictions, and gave him fifteen years. At that point, there was little Albert could do: although he did not know it, pleading guilty had severely limited his right to legal counsel if he wished to challenge his sentence.
Last year, the United States Sentencing Commission released a report on federal sentencing practices from 2005 to 2017, dividing the years into three different periods to reflect changes in sentencing guidelines. The Southern District had some of the highest sentencing averages in the country, exceeding the Middle and Northern Districts of Georgia in nearly every criminal category. The report found that sentencing disparities had increased since 2012, when a similar study was done. David Patton, who serves as the federal defender in the Southern and Eastern Districts of New York, and who has written extensively on the need for independence in federal public defense, urged caution when evaluating such data. “As someone who’s given a lot of thought about how to judge attorney performance, I’ve not found a useful way to use data to make those assessments,” he told me. “This is something that’s vexed the profession, generally,” he added. (The court, when presented with these statistics, also maintained that there were factors other than the quality of defense that played a role.) Nonetheless, Patton said that all districts should have a defender program: “I have a very strong belief that the level of practice is much higher when you have a well-run defender office in the district.”
The level of practice in Albert’s case does not seem to have been very high. His lawyer, Matthew Wathen, was admitted to the Georgia bar in 2005. He then helped start a firm in Savannah with four partners, including an attorney named Amit Navare. The other founders in the firm mainly took on criminal cases, Navare told me, but they recruited Wathen because his professed specialty was civil matters—specifically, personal-injury and business law, which could generate more revenue for the firm. Wathen quickly revealed two other specialties: sloth and theft. “He didn’t really give a damn,” Navare said. “I don’t think he was ever geared toward actually helping the client. It was always, How can I make more money?” Two years before he was appointed to be Albert’s defense attorney, Wathen represented a client who’d been in an automobile accident. Without his client’s authorization or the knowledge of the firm, he settled with the insurance company for $2,250, and used the money for personal expenses. Navare found out and confronted him. “He conjured up fake child-support documents—cut-and-pasted stuff—to make it look like all of the money he got was garnished,” Navare said. Navare and one of his partners shared what they knew with the Georgia Bar Association, and, in January, 2012, Wathen was disbarred.
Wathen ended up in Mississippi, working for the U.S. Geological Survey. “He actually put my partner down as an employment reference,” Navare told me. “I was sitting right there when the federal government called. They were, like, ‘Do you know this guy?’ My partner was, like, ‘You realize he got disbarred for stealing, right?’ Apparently, they didn’t care.” In late 2015, Wathen began stealingfrom the government, and managed to charge nearly thirty thousand dollars in personal expenses to a work credit card before pleading guilty to embezzlement, in 2018. He faced up to ten years in prison. Albert, by this point, had been incarcerated for about that long. But Wathen had committed his crime in a district where the federal defender program exists; his court-appointed lawyer was the assistant federal public defender for the Southern District of Mississippi. Wathen was sentenced to five years of parole along with restitution of the stolen funds. “He’s lucky,” Navare said. “If he was here in the Southern District, he would have actually served time.”
Georgia’s Southern District encompasses forty-three counties and is roughly the size of West Virginia. It takes about four hours to drive its length, from just north of Augusta to the Florida line, and two hours to drive its width, from Dublin to Savannah. It may be the worst place in the country to be a poor person charged with a federal crime.
Until the nineteen-thirties, the right to an attorney, which is enshrined in the Sixth Amendment, was mostly interpreted to mean that anyone who could pay for a lawyer was welcome to hire one. Only in federal death-penalty cases were lawyers typically appointed to those who couldn’t afford them. In 1931, nine boys between the ages of twelve and nineteen, all of them Black, were accused of raping two white women in Scottsboro, Alabama. The boys were tried in two and a half days. Their defense was led by an elderly lawyer who hadn’t practiced in years and a real-estate attorney from Tennessee. They did not interview any witnesses, beyond the accused themselves, or file any motions. Eight of the boys were sentenced to die. “That case really shook us—not unlike the brutal killings of George Floyd and Breonna Taylor,” Jonathan Rapping, a professor of law and the founder of Gideon’s Promise, a nonprofit that provides training and support to public defenders, told me. “It started a bit of a revolution.” Twice, guilty verdicts for the nine boys were successfully appealed to the Supreme Court. In its first ruling, the Court held that competent defense in capital trials was a legal right. Ultimately, charges against four of the boys were dropped; the other five were convicted a third time, even though, by then, one of the alleged victims had said she made up the story. In 1938, the Supreme Court ruled, in a separate case, that the government must provide a lawyer to indigent defendants in all federal criminal trials.
It was another quarter century before the Court expanded that right to criminal trials at the state level, in its ruling in Gideon v. Wainwright, the case of a Florida man who was charged with burglary and was not appointed legal counsel. A year later, in 1964, Congress passed the Criminal Justice Act, which funded the necessary lawyers at the federal level. (Funding at the state level remains extremely uneven.) Judicial districts enlisted local attorneys to form Criminal Justice Act panels, made up of lawyers, typically in private practice, who could represent defendants in federal criminal proceedings. In 1970, Senators Barry Goldwater and Edward Kennedy co-sponsored an amendment to the act to create federal-defender organizations. “The personal freedom of the individual citizen is at stake in these cases, and I want to be sure that his liberty does not become an accidental casualty to the size of his wallet,” Goldwater said. Federal defenders’ offices employ attorneys full time, and have the resources to hire experts and file appeals. But the decision to create such an office in a given district was left up to each district’s judges.
By 1973, fifteen districts had defenders’ offices. Two years later, Theodore Lidz left his job at the Legal Aid Society, in New York, and went to work at the Defender Services Office, in Washington, D.C. Lidz, a spry man who loves to talk and does so with professorial command, had worked in human relations for the Ford Motor Company before taking law-school classes at night and becoming an attorney. By 1982, he was the division chief of Defender Services, and he became a roving ambassador for the program—“a kind of bureaucratic Johnny Appleseed,” he told me, pitching it to districts around the country. Districts could establish either a community defenders organization—a nonprofit with a board of directors and funding from grants—or a federal public defender’s office, with a chief public defender appointed by the circuit court and a budget approved by the Judicial Conference. The former model offered more independence from the judiciary, but Lidz believed that both approaches enabled legal defense of the highest quality.
The earliest adopters of the defenders programs were generally districts with large cities and high caseloads. Georgia’s Southern District actually created a federal public defender office in the late seventies, selecting Robert Jackson Bates Smith, Jr., a former Nixon-appointed U.S. Attorney, to direct the office. Lidz suggested that the office was created as a favor for Smith, who died in 2002; the court told me that the judges, led, in those years, by Anthony Alaimo, another Nixon appointee, hoped to “strengthen the quality of representation” in the Southern District. Lidz maintains that Smith “felt constrained by the judges,” and that their pressure resulted in either an abbreviated second term for Smith, or a shortened first term for his successor.
Smith was replaced by Davis Cohen, a criminal-defense attorney based in Savannah. Cohen said that, after he was appointed, Alaimo called him into his chambers, handed him an undated letter of resignation, and told him that he had to sign it before he would swear him in. “I thought, Well, this is customary,” Cohen told me. “But, later on, I realized that it was not usual and customary with other public defender offices.” He said he didn’t think he would have signed it if he’d had more experience. Later, he recounted the incident to Lidz, who was troubled but not entirely surprised. “It struck me as consistent with other reports I’d heard—that judges there were exerting inappropriate direction, if not outright control, over the Defender office,” Lidz said. (Cohen, who still runs a private practice in the district, told me that Alaimo “never threatened to use” the letter or otherwise pressured him, and said that he didn’t want to malign Alaimo’s “professional standing or his character,” adding that the deceased judge’s “bark was worse than his bite.”)
Soon after Cohen’s appointment, Stephanie Kearns became the federal defender in Georgia’s Northern District, a position she still holds. Kearns, a tireless attorney without patience for foolishness, told me that she met Cohen a few times, and got the impression of a “zealous lawyer, not a rollover.” She recalled a big, multi-defendant case in which Cohen made “a couple motions for mistrial” that “really ticked off the judge.” She added, “He was stepping on toes you didn’t step on.” Cohen’s view was that he did everything for his client that the client would “do for himself if he had a law-school education.” As for the district’s judges back then, Cohen said, “I’m not so sure that they didn’t want somebody that was a little easier.” Cohen learned that the district was planning to close the defenders’ office, and offered to resign, in an effort to keep it open. But the court refused his resignation, and closed the office in 1987. The district’s current chief judge, J. Randal Hall, speaking for the court, told me that the defenders’ office “seemed to deteriorate in its performance after Jackson Smith’s departure,” and that the office was closed because it was “inefficient, redundant, and unnecessary.” Kearns offered a different interpretation. “In their view, I think, Davis was too much of an advocate,” she said, of the judges. “That’s not what they wanted.”
As the years passed, Kearns, like Lidz, became a vocal proponent of the defender program. “We had a little travelling show, where a federal defender, a community defender, and Ted would meet with the judges in those districts,” she said. Lidz recalled their basic pitch: “The quality of representation will be much greater and the cost to the taxpayers less if you have a defense program consisting of well-qualified attorneys actually specializing in criminal practice.” Lidz described a meeting of the Committee on Defender Services in Savannah long after the district’s office closed. He couldn’t recall the exact year, but he vividly remembered the look on the face of B. Avant Edenfield, who had replaced Alaimo as chief judge, and who, years later, would sentence Albert in the Statesboro case. “He was physically taken aback seeing me there,” Lidz said. “Not happy to see the embodiment of the program throughout the country.” Lidz brought statistics to show that a defenders’ office would reduce the number of successful appeals, but Edenfield was not interested, Lidz said. Later, he told me, Edenfield contacted the director of the Administrative Office, who oversees both the district court and the Defender Services Office, criticizing Lidz for pushing the court to change its approach. (The Southern District did not comment on Edenfield’s admonishment of Lidz, or on the resignation letter that Alaimo presented to Cohen.)
Alaimo died in 2009, and Edenfield died in 2015. Alaimo remained a judge until his death. One of his obituaries celebrated that his court, like others before it, was known as “the Rocket Docket,” on account of the remarkable speed at which cases, which is to say people, moved through its doors.
It is difficult to quantify the effect that establishing a defenders’ office has on a district and the people who face criminal charges there. More than ninety per cent of cases in every district are settled by plea bargains, and, according to David Patton, the federal defender in New York, no one has put together a reliable comparison of the convictions and acquittals in all of the country’s judicial districts before and after the establishment of defender offices. What we have instead is anecdotal evidence—which, in the Southern District of Georgia, seems especially abundant. I spoke to lawyer after lawyer who had stories to tell.
Paul Kish was an assistant public defender with Stephanie Kearns for two decades before going into private practice. “I’d get these calls from bankruptcy lawyers in Atlanta saying things like ‘What the hell am I supposed to do? I’m ordered to go to Statesboro to try a fifteen-defendant crack-cocaine case, and I don’t even know what crack cocaine is,’ ” he told me. (One didn’t need to practice primarily in the Southern District to be appointed to defend someone there: if you practiced in Georgia and had tried a case in the district at any point, you might get called upon.) “It’s not the lawyers’ fault,” Kish added. “They tried real hard. They still try real hard. It’s the setup.” There are more than two dozen U.S. Attorneys in the Southern District, most of whom prosecute criminal cases. “The U.S Attorney’s office there is massively more aggressive, taking more chances—and doing stupider things, sometimes—because they’ve got no one holding them in check,” Kish told me. The district’s acting U.S. Attorney, David H. Estes, insisted that the office “always seeks to enforce and uphold the law consonant with the high ethical standards expected by the Court, the public and the Department of Justice.” The court maintained that its supervision of attorneys on the panel insured that defendants receive a skilled advocate devoted to their defense.
Leigh Finlayson is the chair of the Federal Law Subcommittee of the Georgia Association of Criminal Defense Lawyers. He’s also the panel representative for the Northern District. He practices primarily in Atlanta. In a conversation about the Southern District, he told me, “I had a friend from law school who would call me every five years and say, ‘Leigh, I got appointed to another bank-robbery case down here. What do I do? I issued all my notices for deposition.’ And I just sort of laughed, because, you know, you don’t get depositions in a criminal case—though it’d be really nice if you did.”
Finlayson worked on an appeal in the Southern District in 2015. “It was the worst record I’ve ever read,” he said. “A disaster. The most pathetic defense I’ve ever seen. The most uninspired. Less than being a potted plant.” A former prosecutor named Donald Johstono had represented a woman in a multi-defendant tax-fraud case and did not make basic motions on her behalf, including something called a Rule 29 motion. “It’s a routine oral motion that you make in every case: you say that the government has not proved all the elements of the offense,” Finlayson explained. “Sometimes you win those motions. Sometimes counts are thrown out. Cases can be thrown out. It’s rare, but sometimes good things happen for defendants.” Failing to bring that motion also changes the court’s standard of review on direct appeal. Johstono not only failed to make a Rule 29 motion but he declined to do so when prompted by the judge. Johstono told me that “making spurious motions” is a waste of time and creates a bad impression with the judge, and that “the government had produced evidence that basically met the criteria for proving the case.” When I asked Finlayson about this, he said, “I don’t know any lawyer who’d say, ‘There’s strategic value in not making this motion.’ It makes no sense. It’s not your job as the lawyer to be the jury or the judge.”
The judge in the case was Edenfield, who was known for pushing cases through his courtroom with concerning speed. But, in the trial transcript, even he seems troubled, at least momentarily, by Johstono’s behavior.
JUDGE: Are you going to make some motions?
LAWYER: I don’t think I’m going to make any.
LAWYER: I don’t know that I’m obligated to.
JUDGE: You’ve been around the courts too long.
At the end of Finlayson’s involvement in the case, he encouraged the defendant to file an ineffective-counsel claim, but she seemed convinced that it wouldn’t go anywhere, he said. She might have been right. Jonathan Rapping, the law professor, told me, “Once you’ve pled guilty, as more than ninety-five per cent of defendants do, it’s virtually impossible to claim your lawyer was ineffective.” Finlayson filed a brief noting the shorter sentences of the case’s other defendants, all of whom had pleaded guilty instead of going to trial, and arguing that his client had been penalized for exercising her right to a trial. She remains in prison until next year.
Several Georgia judges told me similar stories. Gerrilyn G. Brill spent twenty-one years as a magistrate judge in the Northern District before retiring, in 2016. She recalled a bankruptcy attorney who “knew nothing about criminal cases” but had nonetheless been appointed to represent someone in a drug-conspiracy case in the Southern District. “He was very, very nervous,” Brill said. “Obviously, not an ideal attorney.” Others preferred not to go on the record. One federal judge told me that pressure from the North was likely to be seen as a provocation, and could diminish the likelihood that the system would be changed. Finlayson told me, “There’s great resentment of being told what to do down there. It’s like the Civil War. They don’t like being judged. They say they’re doing a fine job.”
Of the eight district and magistrate judges in the Southern District, all are white, and seven are men. Many of the people I spoke to suggested that “racial animus” underlies the resistance to disrupting the district’s conveyor belt of convictions. “It’s the old white men who don’t want change, who just want to push those cases through,” Christina Hunt, the executive director of the defenders’ office in the Middle District, told me. Multiple people told me that Edenfield was particularly harsh with Black defendants. “I’d always tell my Black clients, ‘Be very careful about what you say,’ ” a criminal-defense lawyer in the district said, echoing other comments I heard. Franklin J. Hogue, who served as the panel representative in Georgia’s Middle District—and who, in 2007, helped persuade the judges there to establish its first defenders’ office—told me that the judges of the Southern District “were legendary for being opposed to the idea” of having such an office. He added, “They wanted defense lawyers to just come in and just plead out everybody. The idea that you’d come in and mount a real defense seemed offensive to them. That’s the impression we all had.”
The current chief judge, J. Randal Hall, wrote in a statement that he was familiar with Edenfield, having been appointed to his seat, and that Edenfield “spoke very bluntly with lawyers and clients, and many may have been intimidated by him.” Hall went on, “I have never heard even a hint of racial animus by any of the court’s current judges. I would say that we all find racial prejudice to be deeply offensive.”
Two years after Albert went to prison, the A.T.F.’s use of undercover storefronts, which can resemble entrapment, came under scrutiny first from local press and then from the U.S. Congress, which, in 2014, held hearings about the practice. Then, in early 2015, a U.S. Attorney in southern Georgia disclosed that an assistant U.S. Attorney and an A.T.F. agent, both of whom worked on the Statesboro sting, had been having an affair. Subsequently, it was discovered that the agent, who testified in several cases, had lied to help an informant secure a visa. The failure to disclose the affair, and the damage that the lie did to the agent’s credibility, gave many of those convicted in the stings an avenue for post-conviction challenges. A few of them were appointed a local criminal-defense lawyer named Amy Lee Copeland, who was able to secure reduced sentences for two of the men. Dozens of others, including Albert, called her, as word got around, and Copeland, who was running a solo practice, offered consultations to many of them. But she could take on only the cases that had the best chance to be deemed worthy of review by the court. Those who’d pleaded guilty were at a disadvantage. Copeland mailed Albert and the others the paperwork that they would need to file pro se, a term that Albert had never heard before, meaning “on one’s own behalf.”
Later that year, the Supreme Court ruled that the Armed Career Criminal Act, which was passed in 1984 and helped to shape national sentencing guidelines, employed language “so vague that it fails to give ordinary people fair notice of the conduct it punishes.” The sentencing guidelines were subsequently amended to reflect the ruling. In Stephanie Kearns’s office, a young and unusually determined paralegal named Haley Haltiwanger began reviewing the cases of people who might be newly eligible for sentence reductions. “We got a lot of calls from our district,” Haltiwanger, who grew up poor in Valdosta, near the state line with Florida, told me, still sounding distressed. “But I was getting floored with calls from the Southern District.”
Among the people she heard from was Albert. He’d been told by other inmates that the federal defender in Atlanta might be able to help, and he’d sent a letter to the office, which occupies the fifteenth floor of a skyscraper downtown. The letter got to Haltiwanger, but there was little she could do. The two ended up corresponding for years. “I couldn’t stop thinking about his dilemma,” Haltiwanger told me. “Had there been a defender office there, the chief judge could have appointed the office to review cases—but no one did anything. It kept me up at night.” In 2017, after she had e-mailed him another round of bad news, Albert expressed his gratitude. “Well, I will keep my head up and hopefully something else comes along,” he wrote. “If not, then I only have less than five years to finish up my time so I will be ok. . . . thank you for everything. . you’re awesome ‘smile’. . . thanks.”
That November, the Judicial Conference, the national policymaking body for the federal courts, published a review of the Criminal Justice Act. The review, which had been commissioned by Chief Justice John Roberts two years before, was overseen by Kathleen Cardone, a federal judge who presides over the Western District of Texas, and who solicited input for the review from across the country. Amy Lee Copeland wrote Cardone a memo detailing problems in Georgia’s Southern District, describing “situations where attorneys who primarily represent state court misdemeanants find themselves representing health care fraud defendants in document-intensive cases,” and “attorneys who primarily do insurance defense work pleading clients out to life sentences.” Copeland explained that she had occasionally been hired to do post-trial work on such cases. “The situations that I have inherited distress me,” she wrote.
Cardone’s report concluded that every district should have a defenders’ office—and, what’s more, that Congress should create a “fully independent entity governing the provision of public defense in the federal courts.” Panel attorneys did not have enough independence from the judiciary, the report stated, and too many of them were poorly trained and poorly paid. Public defense, the report noted, is “highly uneven across the country.”
But Congress has not acted. “The prevailing wisdom is that the judiciary is an important voice in any debate about legislation to create an independent defender program, and so it’s important to wait for the judiciary to make a recommendation to Congress,” David Patton told me. “That said, the Judicial Conference has really been dragging its feet on this. There have been two separate reports conducted by the judiciary, thirty years apart”—a previous review was published in 1993—“and both came to the same conclusion about the need for independence. There’s only so long advocates and lawmakers can wait.”
In the Southern District of Georgia, a handful of improvements were made, around the edges, after the Cardone Report was published. Membership in the panel of court-appointed attorneys is now optional rather than compulsory. There is now also a “panel-only Listserv,” Amy Lee Copeland told me, plus “brown-bag lunches,” a few times a year, at which magistrate judges meet with panel attorneys to discuss their concerns.
The court told me that changes to the panel were instituted in 2009—the same year, as it happens, that Wathen was appointed to Albert’s case—but multiple attorneys say that those changes took place only after the Cardone Report was published, in 2017. If nothing else, the discrepancy points to how little understood the district’s policies are among many lawyers in the area, even those who have served as panel attorneys. Amit Navare told me he noticed that something had changed, but he didn’t know why. “Now, as opposed to just appointing me three cases at once that are all, you know, high-level-type cases, they’ll call me first, and ask me, ‘Hey, Amit, are you available to do this?’ And, if I tell them no, I don’t get any flack about it.” He thought that perhaps he had earned a degree of deference as his service and experience accumulated. “If it’s an official policy, wonderful. I’m just ignorant to what it is or isn’t.” Most lawyers I spoke to in the Southern District thought that the approach to public defense there was just the way things worked rather than anything anomalous. And some of those who were aware of the differences between Georgia’s Southern District and other judicial districts didn’t see it as their responsibility to question the judges’ decisions about policy. “At the end of the day, I don’t view it as my role to say, ‘This is how it should be,’ ” one long-serving panel attorney told me. Others did not want to criticize judges whom they would later be facing in court.
Even a well-trained panel is hardly the equal of a defenders’ office, Gerrilyn Brill, who managed the Northern District’s well-regarded C.J.A. panel, told me. “They don’t have the same expertise or financing,” she noted. If a panel lawyer wants to hire a psychiatrist to testify in a case, for instance, she has to ask the court for permission. “When panel lawyers have to literally go to the judge and say, ‘I need x number of dollars,’ that creates a really perverse incentive,” Jonathan Rapping told me. “In a federal-defender system like the Northern District of Georgia’s, you have professional lawyers who work late into the night, work weekends, who don’t need to submit vouchers, because they have a salary. They don’t need to ask judges for money.” Rapping went on to say that the greater problem with poorly funded public defense is more basic. “Defendants are not treated as human beings,” he said, adding, “Even the best prosecutor, the best judge, can’t act on their egalitarian instinct if they don’t know anything about the human being their decisions impact.” Public defenders are tasked with communicating this humanity, Rapping said, “not helping the prosecutorial conveyor belt move more swiftly.” But judges are evaluated in part by their ability to manage their docket and avoid backlogs.
In late September, CNN published an investigation into the granting of “compassionate release” motions by federal judges during the pandemic, when many older inmates, in particular, argued that staying in prison could be tantamount to a death sentence. The report found that the granting of these motions varied enormously by district. The lowest approval rate in the country belonged to the Southern District of Georgia, where fewer than two per cent of compassionate-release motions were granted. Here, too, a defenders’ office might have helped, by acting as a clearinghouse and resource for attorneys who took on cases that it could not. Successful petitions for release are not quick work; they often require a full vetting of the underlying case records, plus the gathering of prison records, letters of support, and plans for the person’s release.
“More damning statistics,” Stephanie Kearns wrote in an e-mail, forwarding me a link to the CNN story. Christina Hunt had suggested to me that she and Kearns, the federal defenders in Georgia’s Middle and Northern Districts, could divide up the work of the Southern District if, as she put it, “the courts or somebody forced a defender system on them—which I think they’re going to have to do, quite frankly, because there’s a legacy of judges being all old and white.” But Kearns said, “That’ll never happen. I can’t possibly see them letting people from the outside run their indigent-defense system.” As her former assistant defender, Paul Kish, told me, “These mean old judges think that an organized defender will challenge their unbridled control. And, frankly, they’re right.”
In August, I learned that the Southern District had recently conducted an internal review of its handling of indigent defense, but the district declined to share the conclusions of that review, and the Atlanta attorney who conducted it did not offer comment. I later learned that the Defender Services Office is also planning to conduct a review of the district, though it has been delayed by the coronavirus pandemic.
J. Randal Hall was a lawyer and a vice-president of Bankers First Corporation, and then served in the Georgia state Senate, as a Republican, before getting appointed to his seat on the court by George W. Bush. He became chief judge shortly before the Cardone Report was released. In the three-page statement that the Southern District sent me, the court maintained that its decisions regarding public defense were made by all the judges in the district, and that lawyers on the district’s C.J.A. panel are carefully selected, and matched with cases appropriate to their level of experience. Later, Hall, when asked why the district did not have a defenders’ office, told me, “I have not been personally approached by any lawyers within my district about establishing a federal public defender’s office.” The court also insisted that the judges “are familiar with the lawyers” in the district, adding that it “does not contain large urban areas,” and characterizing Augusta and Savannah—the second- and fifth-most-populous cities in Georgia, with five hundred thousand and three hundred thousand residents, respectively—as “mid-level cities,” where the number of practicing attorneys is “relatively small.” When I described this explanation to Stephanie Kearns, she called it “a myth to cover that they really want to tamp down zealous advocacy in criminal cases.”
In late August, I received an unexpected reply from a person everyone had told me they couldn’t find: Matthew Wathen, Albert’s onetime defense attorney. I told him that I was writing a piece about the problems with public defense in Georgia’s Southern District, and that I’d learned about a few cases he’d worked on. I also told him that a former employer had some unflattering things to say. “I do deserve unflattering statements about my behavior at the end of my practice,” Wathen told me. “I was in the middle of having a nervous breakdown, and I disappointed my clients, my colleagues, and my family.” He noted that he was in therapy and trying to recover. (When I told Navare, his former partner, this, he replied, “If he were really sorry for what he did, he would have reached out to say so. And he never has.”)
Albert told me that he had tried to reach Wathen, too, while he was still locked up, and was struggling to understand his case. He had no idea, until I told him, that his former attorney had been disbarred—not to mention convicted of a federal crime. Sitting in the halfway house where he went after his release from prison, Albert, who was released two years early on account of good behavior, recited, with incredulity, the facts as he now knew them: “So the agent and D.A. slept together and got fired. My lawyer who represented me was crooked, and he got fired. I got thirteen years. Shouldn’t there be a way I can at least get my probation terminated?” I told him I didn’t know. I did know that Albert got his G.E.D. in prison, and I asked him about his work prospects. He’d been offered a job that very day, he said, driving a forklift. “He gave me a chance,” Albert said, of his new employer. It was strange, though, he went on, being back in Statesboro, after all those years. “I came home, and it felt empty,” he said. His mother, father, and one of his grandmothers had all died while he was in prison. If his sentence had been a few years shorter, he added, he might have got out in time to see his mother laid to rest.
All Rights Reserved for Charles Bethea