The Supreme Court of Georgia has ruled a Burke County court must consider an appeal an Augusta man filed on his own while he also had an appointed attorney.
Garry Johnson, sentenced in 2000 to life without parole for killing of Irene Shields, an Augusta mother of three, waited more than 17 years for a hearing. His handwritten “pro-se” appeal was disregarded because he had a lawyer at the time. More than five years later, the Supreme Court decided the court must consider it.
“Although a defendant does not have a constitutional or statutory right to represent himself while he is also represented by counsel, nothing in our constitution or code prohibits such ‘hybrid representation,’ either,” Justice Andrew A. Pinson wrote in the opinion.
Johnson was tried for capital murder and so was appointed two lawyers, Jack Boone and Luther McDaniels. At trial, prosecutors said Johnson kidnapped Shields at her Augusta home, bound her and drove her to Burke County, where he repeatedly ran over her with a vehicle.
Boone withdrew from the case a few days after Johnson was convicted and sentenced to life without parole. McDaniels, who was later disbarred, never withdrew from the case but also never did anything more to represent Johnson. A lawyer appointed to handle Johnson’s appeal, Paul David, also did nothing on Johnson’s behalf, and he also would later be disbarred.
In December 2017, attorney Lucy Dodd Roth with the Augusta Circuit Public Defender’s Office took up Johnson’s case, and the trial court named a special master to reconstruct the case file, according to a summary of the opinion. The court allowed Johnson to file an “out of time” motion but later denied the motion, and Johnson filed an appeal.
The Supreme Court initially dismissed his case based on case law regarding pro se filings by defendants represented by counsel, but later reopened it to address whether “a pro se filing made by a defendant who is actually or presumptively represented by counsel [is] always a nullity.”
The Supreme Court travelled to an Augusta courtroom in October to hear arguments in the case. They challenged Assistant District Attorney Joshua Smith’s position that Johnson’s request for legal assistance was invalid because he technically still had an attorney.
In the opinion, the Supreme Court held the trial court had the discretion to recognize filings by defendants such as Johnson, including when they preserve his right of appeal lost because trial lawyer failed to act.
The right to “hybrid representation” was taken out of the Georgia Constitution in a 1983 rewrite and had been interpreted as a ban, the option stated. But the rule “has no basis in either constitution or statute, and it is virtually unreasoned, in conflict with our own decisions, and potentially destructive of the appeal rights of criminal defendants,” Pinson wrote.
The Supreme Court vacated the Burke County trial court’s January 2022 order denying Johnson’s motion for a new trial. It sent the case back for that court to determine whether to recognize and rule on Johnson’s self-filed motions.
