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COLUMN: When Prosecutors Have Bottomless War Chests & Everyone Else Doesn’t

OPINION: Jessica Szilagyi talks about a development in the Tara Grinstead murder case which had the pro bono legal defense team asking for financial assistance from the state, a motion that was denied because the legal representation was pro bono, not because the defendant is indigent.

The following article is an opinion piece and reflects the views of the author and not those of AllOnGeorgia.

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If you haven’t heard of the Tara Grinstead murder case in south Georgia’s Irwin County, you are likely new to Georgia, still in high school, or a hermit – in which case, congrats on continuing to read AllOnGeorgia during your seclusion.

I would imagine not everyone has the time to follow every progression of the case that dates back to 2005, especially the ones that dive deep into the Georgia code as lawyers grapple with a constitutional balance, but if you’re really out of the loop, might I suggest you take some time to read this piece and familiarize yourself.

Allow me to quickly summarize:

Two years ago, Duke was indicted on charges of malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with the death of Grinstead. At that time, Duke was represented by the public defender in the Tifton Judicial Circuit until two attorneys from Cobb County took over his case pro bono in August 2018. The pro bono attorneys, John Merchant, Ashleigh Merchant, and  John Gibbs, III, then asked the court to assist with the funding an investigator and as well as expert witnesses to refute forensic evidence the state has.

An Irwin County judge denied the defendant’s request for state funds saying Duke “has a constitutional right to be represented by private, pro bono counsel if he so chooses, he is not simultaneously constitutionally entitled to experts and investigators funded by the State.” The judge also said “Duke was indigent and had demonstrated a “compelling” need for the experts,” noting it was necessary for a proper defense, but that state funds could only be given to public defenders, not pro bono attorneys.

The defense appealed to the state Supreme Court who, on Monday, refused to hear additional arguments under Georgia Code § 5-6-34 (b). Basically, it’s a technical issue in the process, not necessarily on the content of the appeal, (If you want to get into the grit of that, you can read about it here), but interestingly, the justices previously suggested the lower courts should consider the appeal of funding before trial to avoid a conviction being overturned (which would warrant another trial). Justice Blackwell went as far as to call the issue over whether the funds should be awarded a ‘murky’ one.

Now, before I go on, I want to mention that Ryan Duke’s case is a terrible ‘poster child’ for attempts to try to work an angle of discretion or, dare I say it, compassion for the indigent.. Add up the publicity of the case across the state, the gravity of the charges, and how long it has taken for the justice system to yield any resolve for the family of Grinstead, the odds are not in Duke’s favor. But I am of the belief that it is always proper to question the justice system where inconsistencies arise, regardless of who the defendant is, and despite the egregiousness of the allegations, what Duke’s attorneys have argued for presents a good question:

Does the state have an obligation to help with funding defense trials when a defendant is deemed indigent?

Let’s set aside that the trial court judge noted for the official record that the defendant was indigent or that the Supreme Court signaled the issues it could cause against a person on appeal of a conviction. The underlying question is, regardless of how terrible the actuations are, how far should the state go to ensure a fair trial is provided?

Does that obligation go beyond legal representation to include supplements for trial and does the obligation go disintegrate when an indigent defendant is represented pro bono? There is no legal precedent for the latter question and the answer to the former is a resounding ‘yes’ since the state allows public defenders to petition for additional funds to prepare for trial.

But here’s why I question the Supreme Court justice assertions that the issue is ‘murky.’

A defendant is not indigent simply because they have a public defender, but rather because they cannot afford to pay an attorney. Georgia has codified the definition of indigent as a person who earns “less than 150% of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person, his or her dependents.” Again, the definition of indigent makes no mention of the term public defender.

But on the contrary, OCGA 17-12-2(8) defines a ‘public defender’ as “an attorney who is employed in a circuit public defender office or who represents an indigent person pursuant to this chapter.(emphasis added). Or who represents an indigent person as defined in the chapter, which is the definition referenced above.

It seems fairly simple to me.

Taxpayers often balk at the cost of public defenders –despite the negligible cost relative to other government expenditures – while simultaneously cringing at the idea of gambling their own freedom by rolling the dice with public defender representation. Yes, good public defenders exist, but we have all seen documentaries and read exposes on people who successfully challenge their convictions because of inadequate representation by these public defenders.

Taxpayers balk at the cost of defending the accused, but the prosecution — which is funded by taxpayers — has an unlimited war chest. They can call unlimited witnesses, double up on crime lab forensics, pay experts, and so much more. Of course, the burden is on the state to provide proof beyond a reasonable doubt without regard for cost, but ill-equipped defenses don’t stand a chance against even a lazy or novice prosecutor. Even still, the court of public opinion generally only seeks financial controls on the defense. For some unknown reason, people don’t hold believe the judicial branch offers the same type of government overreach that the executive and legislative branches do.

As for Irwin County, the taxpayers have already been billed for selecting jurors from a pool of 600 and subpoenaing more than 100 witnesses. They’ve funded pre-trial hearings, a related trial for a co-defendant, and, of course, 14 years of investigations. Is the defense’s request, in an effort to fulfill constitutional and state law obligations of a fair trial and adequate representation, really too expensive if it closes the book on a case that has been open for a decade and a half?

Don’t get me wrong. I’m not advocating that we reinvent the legal system so as to foot the bill for both the prosecution and the defense in every case. For a number of reasons -morally and ethically-, that as the default does not make sense. But we don’t fund public defenders because it makes people feel good and helps attorneys gain experience.

From the perspective of fiscal responsibility, it would appear that awarding funds for experts would be more cost effective than retrying the case because of inadequate representation, something the state’s highest court has already signaled would be a large possibility.

Most importantly, would your opinion of support services for indigents be different if the case were not one that was plastered on headlines for the last two years? (If your answer is ‘yes,’ go back to the beginning of the article and start over.)

This is a bigger deal than the Grinstead case. As Justice Bethel said in Monday’s ruling: it presents  “difficult, complex and important constitutional questions for which there is no controlling legal precedent.” Irwin County’s Superior Court judge will now be charged with deciding whether or not the state, which has a vested interest in defeating the defense, must financially assist the defendant with having a better defense.

Jessica Szilagyi is a former Statewide Contributor for



  1. Swanee Owen

    June 11, 2019 at 11:48 am

    As a retired GBI agent and a relative of Tara Grinstead I think the bigger picture here is why should the taxpayers provide money for indigent defendants who give up their public defender? The money and services are already there as long as they use the public defender. Pro bono lawyers stepping in to accept a case know up front they will not be paid and any expenses incurred defending their client falls on them. A Supreme Court ruling to provide money for indigent clients who fire they’re public defender and take on private counsel would result in a windfall of defendants from now on requesting expert witness testimony, private investigators at the taxpayers expense as well as delay trials indefinitely.
    Currently we have people in prison who have been sentenced to death for their crimes yet are still alive 25 yrs later because of appeals. When does it end? How long is a victims family supposed to suffer at the expense of a defendants never ending requests?
    When there is a confession, DNA evidence, and information known only by the killer and the GBI indicating someone’s involvement in a crime do the taxpayers really feel the Supreme Court needs to jump in and decide if this persons should get money for his defense after he fired his public defender. He closed his free wallet by taking on pro bono private counsel. We already have a system that works for indigent people. Use the funds there or lose it.
    Perhaps publicity seeking pro bono lawyers should consider the cost of defending someone prior to jumping in front of the camera.

    • Jessica Szilagyi

      June 11, 2019 at 12:57 pm

      First, I’m sorry for the seemingly endless turmoil your family has experienced because of all of this. I don’t discount anything you said, which is why I said this guy is a TERRIBLE poster child for this conversation.

      To your first question, if the belief of the courts (and the People for that matter) is that a public defender does not meet the definition I referenced in Georgia code they need to change the code. They also need to halt the practice of judges appointing attorneys who don’t work for the public defender’s office to do pro bono/public defender work. A judge shouldn’t be able to appoint someone to represent another person for free while also saddling them with the costs it takes to defend that person.

      To some of your other questions, I don’t know the answer. It seems we may be on the opposite sides of the issue here and both still frustrated with how it all works. Every time I vocalize my concerns, people say…”But still, it’s the best system in the world.” Which is true. But it could be better.

      I don’t refute your points about the indigent, but I do think the law needs to be tightened or eliminated because it currently does leave room for interpretation and appeal.

  2. Jessica Badeaux

    June 12, 2019 at 11:19 am

    “A judge shouldn’t be able to appoint someone to represent another person for free while also saddling them with the costs it takes to defend that person.”
    The judge did not appoint the Merchants to defend Ryan Duke, they chose to take his case pro bono and he chose to accept that, therefore his right to all of the free help and everything that goes along with it was forfeited by his choice.

    • Jessica Szilagyi

      June 12, 2019 at 12:18 pm

      I understand that the Merchants weren’t appointed. I was speaking in response to a comment about the system as a whole, that judges do that reguarly, and if you want the taxpayers to be off the hook completely, then judges shouldn’t be able to appoint private practice attorneys. The article mentions the Grinstead case, but the discussion is about a systematic problem and a grey area of the law as a whole.

  3. Swanee Owen

    June 12, 2019 at 11:40 am

    Ryan Dukes pro bono lawyers were not appointed by the judge. If pro bono lawyers step in and volunteer to take a case and an indigent client fires his public defender the judge has to “approve “ them but he does not appoint them per say. The legal term may be “appointed “ but Ashleigh Merchant and her husband stepped into this case on their own. Mrs Merchant was giving her opinion about this case on the Up and Vanished Pod Cast months before she ever took on the case as part of the 18 city tour done by Payne Lindsay. Tickets were actually sold nation wide on this tour and Lindsay profited by spreading hearsay and lies thru social media about Tara Grinstead as well as others who were falsely accused of this crime while claiming fame for himself and others while playing amateur detectives and interfering with an official police investigation. You may not be aware of the pod cast but Ashleigh Merchant was interviewed on the podcast and was sought out by Ryan Dukes mothers desperate pleading for anyone to help defend her son according to her own Facebook page. Judges dont pull private practice lawyers names out of a hat and assign them to work pro bono cases to defend indigent people. That’s why we have public defenders. That is their job. Ryan Duke fired his public defender and chose private counsel and they agreed to take the case pro bono. Private practice lawyers from Atlanta would not be appointed to defend someone pro bono 3/12 hrs away from where they practice law. They could have said no to Ryan’s Mother’s request. Ryan’s lawyers were brought in by his family not by the Judge in Irwin Co. With all due respect it’s pretty clear to me that you aren’t aware of all of the facts in this case or exactly how the system works. You stated Irwin Co had already paid for a trial for a co defendant. That’s not true. The co defendant was tried in Wilcox county which is a totally different circuit than Irwin Co. You also stated Irwin Co had paid for the cost of selecting jurors from a pool of 600 people. Again that’s not true. A jury never convened from the 600. The only thing that’s been paid for by the taxpayers concerning convening a jury in Irwin Co is the postage and the questionnaires sent out to a jury pool of 600.
    I understand your point in your article but please get the facts right. You also said “This is bigger than the Tara Grinstead case. “ I can assure you it may feel that way to you but to our family and to those who were named as possible suspects and falsely accused on social media nothing is bigger than the Tara Grinstead case.
    You say people say our justice system it’s the best in the world. Your opinion is “ But it could be better”. Your right it could be better. How could it be better? Family’s who have lost loved ones to crime could get justice sooner if it weren’t for the fact that no matter how much evidence there is against someone people who have confessed as well as those already convicted have an endless amounts of rights and appeals while the victims family have zero.
    In Australia it only takes 10 out of 12 jurors to convict someone of a crime. Is our system not better? Here it takes 100% to convict. Do you know how hard it is to get 12 people to agree on what to eat for dinner? Never mind agreeing on the guilt or innocence of someone. Yet your opinion is it could be better by providing more services for defendants.
    Let me make a comparison here. If I were on food stamps and went to the store to buy groceries and wanted to buy something that was not covered by the food stamp program should I throw my food stamps away then have lawyers go to the Supreme Court and say my client doesn’t like the items covered under the program. My client wants the whole food stamp program changed so she can buy anything she wants that’s not covered by the program everyone else uses. My client acknowledges the food stamp program is good enough for everyone else but it’s not good enough for her.
    My opinion is if you our think our justice system is the best in the world “but it could be better “ do something about instead of writing articles you have not fact checked.

    • Jessica Szilagyi

      June 12, 2019 at 12:18 pm

      I am well aware that the Merchants weren’t appointed. I was speaking to the system as a whole, that judges do that reguarly, and if you want the taxpayers to be off the hook completely, then judges shoulldn’t be able to appoint private practice attorneys. The article mentions the Grinstead case but is about a systematic problem and a grey area of the law as a whole. Go back and read my comments.

      Also, just because a defendant was tried in another county doesn’t mean there was no burden or cost on the initial circuit. There was. A considerable one.

      This is my full-time job, among other things. I don’t simply spout off about a single topic and move on. I believe this is the first article I’ve seen you comment on in my 8 years of writing, so I’m inclined to think that it’s a little unreasonable to make such grand assertions about a person’s work in isolation.

      My initial response to you was an attempt to be respectful, hear your point, and offer mine, but it seems you’d rather make the issues about me personally. It’s possible that you’re simply too close to this case to have an objective conversation about the system and probably don’t stand to gain anything with arguing with people on the internet. Best of luck to you and your family. Hope there is justice soon enough.

  4. Jessica Badeaux

    June 12, 2019 at 1:21 pm

    I personally didn’t view the previous comment as a personal attack on your work, but that’s just my opinion.
    It is interesting, however, that you are speaking about the in consistencies and perceived unfairness of the current laws that apply to indigent clients, and in doing so, you referenced a specific case that in fact DOES NOT represent the issue you are claiming to be concerned about. If you are “speaking to the system as a whole” with regards to judges not being able to appoint private attorneys to handle cases for the indigent, then why not site a case where that actually occurred? It comes across as disingenuous and hypocritical. The bottom line is that our current laws in our legal system were created long before now, and are enforced accordingly, so while you or I may not agree with a judge’s ruling, he is not factually wrong in his decision. He is doing what he was elected to do, and that is following the letter of the law as it is written. The right to an attorney in criminal proceedings is clearly stated in the 6th amendment, and then interpreted and put into practice in different jurisdictions based upon the need and availability of that location. Some have a list of attorneys to select from, some have to appoint attorneys. It is all dependent upon that jurisdictions structure. You should read the Foltz Defender Bill. Also, the very title of your article is offensive in nature. Stating that the prosecution has a bottomless war chest is not a factual statement- there are budgets and regulations that apply to the supply of state funds for criminal prosecutions. It also insinuates that the defense is somehow being slighted by not having access to the same presumed war chest, and therefore it is impossible for the defendant to properly represent himself. So the question we should be asking is perhaps even more complex. Why, as a taxpayer, should I have to pay into a system that affords a criminal defendant all of these rights in order to defend himself against accusations of a criminal act? If I don’t get to choose who my monies go to, whether it be the prosecution or the defense, then what right does the defendant think he has to those monies while still being represented by private counsel? That is a dangerous precedent to try and set. As far as appeals issues go, that is assuming a conviction, which in my mind only furthers my belief that regardless of what monies or experts or anything else that could be provided to the defendant, he may still be found guilty, in which case if his attorneys are any good at all at their jobs, they will find a reason for appeal regardless. That is where the bulk of our tax dollars go anyways, housing and financially supporting convicted criminals who get to languish in jail for years and years and clog up the judicial system with endless appeals at our expense. I didn’t find the previous poster to be attacking you personally, although clearly you feel that they were. But I do think the point being made was that we shouldn’t re-write the laws or expect an exception on the basis of one specific case that you find to be potentially unfair in nature, and conform to a defendant’s desire to have the best of both worlds afforded to him. He wants to have funds for experts etc? Great, tell him to fire the Merchants and go with the public defender, who then in turn would have access to that. He doesn’t want a public defender? Great, then you get what you get. And if the Merchants cannot afford what they deem to be an equitable and fair defense for their client, then frankly they shouldn’t have taken the case. If you can’t afford the steak, you don’t order it and eat it, and then expect someone else in the restaurant to pay for it.

    • Jessica Szilagyi

      June 12, 2019 at 1:39 pm

      As I stated in the article, the contention under the law is what it means to be a public defender — which is representing someone who is indigent, which is why it applies in this case. If you read the state statute I referenced and linked, it’s a fairly concise definition that is conflict with what both people commenting here are saying. I’m not saying anyone should pay for it, but if there is an issue with the law, people should advocate for it to be changed…not for it to be applied unequally because of their feelings about a particular case. I thought I was pretty thorough in explaining that aspect.

      Anyways, I appreciate your feedback.

    • laineymcveigh

      June 24, 2019 at 5:58 am

      You lost me when you said” he is not factually wrong in his decision. He , the judge, is doing what he was elected to do, and that is following the letter of the law as it is written.” I’m sorry to disagree. My experience is that judges in South Georgia make
      “the law” up as they go and more so than not, their decisions and rulings are for their personal benefit and /or the benefit of their political connections. The self motivated, tainted, rulings of judges in South Georgia, should be saved for another article entirely separate from this one.

  5. Jessica Badeaux

    June 12, 2019 at 1:46 pm

    Oh, and one last comment. It’s interesting to me that neither my nor the previous poster’s comments appear on the online article. Only the 3 comments that agree with your stance show up. Why is that?
    …so much for non-biased journalism as well

    • Jessica Szilagyi

      June 12, 2019 at 1:53 pm

      Not sure what you’re referring to…I wouldn’t be able to reply to your comments if they weren’t showing on the website – which is the online article. Currently, 9 comments are showing and this one makes 10.
      If you’re referencing Facebook pages, the comments on the actual article don’t connect to social media. You’d have to comment directly there.
      You don’t have to assume everything is a conspiracy theory. Sometimes people are just mistaken.

    • eric cumbee

      June 12, 2019 at 1:59 pm

      I see everyone of your comments.

  6. Jessica Badeaux

    June 12, 2019 at 2:07 pm

    “the contention under the law is what it means to be a public defender — which is representing someone who is indigent, which is why it applies in this case”
    It doesn’t apply in this case because the Merchants are not public defenders. He chose a private firm to represent him, so your point is moot. While I agree that it seems hypocritical on the judge’s part to have expressed and deemed Mr. Duke as indigent, which he in fact is, but then deny him the public funds based upon that indigent status, what do you really expect the judge to do? Taken out of context in this manner it sounds unfair and unjust, but neither is untrue or unjust. He is, in fact, indigent under the law definition, regardless of who represents him. By such status he is afforded the right to an attorney provided to him by the public defender’s office. Since he waived that right in lieu of hiring the Merchants, your argument about the definition of what it means to be a public defender does not apply. Should the law be changed to allow defendants in criminal proceedings to have access to the same funds regardless of who they choose to represent them? Perhaps. But there would still be the issue of the cost of a private attorney, and based upon what a good criminal attorney charges these days, I doubt very many people can afford that kind of representation out of pocket anyway. So then what, should we also allow the attorneys to charge whatever they want, and we have to pay it so that the defendant isn’t slighted in some way out of what he perceives to be a good defense? In my experience the only defendants who feel they had adequate and appropriate counsel are those that win their cases. Why not put a cap or set amount on attorneys for what they can charge for a defense? Maybe that is an answer? There are many different arguments that you can make with regards to fairness or unfairness in the legal system. It can all be very subjective depending upon who you ask. But again, as I said, the bottom line is that under our current laws the defendant cannot expect public funds to mount a defense while simultaneously choosing to hire a private attorney. It doesn’t work that way. Advocation to change the laws for criminal defendants is all well and good, but at the end of the day, this case is not a fair example for the point you are attempting to make, and your title for the article is an insult to the family of the victim, all of those in that community who were affected and still are affected by this tragedy, and to the legal system as a whole. How about don’t commit a criminal act in the first place, then you won’t have to worry about where the money or the attorneys come from? There’s a novel idea.

  7. Jessica Badeaux

    June 12, 2019 at 2:15 pm

    My apologies. The comments show up on this particular site, but not the other one that I was reading the original article on.

  8. Swanee Owen

    June 12, 2019 at 3:43 pm

    It took me a while before commenting again because frankly i was floored by your response. I apologize I did not mean to insult your integrity as a writer. That was not my intent. Nor was i attempting to be argumentative. I was stating my opinion. Can I not disagree and give my opinion without you saying perhaps I’m too close to the issue and can’t be objective? I found your comment unbelievably cruel. My family has been through unspeakable horror for 14 yrs and all kinds of things have been written about Taras case that are inaccurate and some are just plain not true. And because I feel that the wording of your article indicates you may have some incorrect facts , and apparently another poster agrees, you go back and check to see if I’ve ever commented before in the 8 yrs you’ve been doing this. What does that have to do with anything? I was sent this article by a friend. It’s the first time I’ve ever seen anything written by you. I’ve spoken to reporters , writers and commented on numerous occasions over the yrs. I’ve told others they needed to get their facts right before they wrote an article and no one has ever taken it as an insult. I wasn’t trying to make anything I said about you. I was simply saying make sure your facts are straight. Just because your a writer doesn’t mean your opinion is more valuable than anyone else’s. Don’t worry you won’t hear from me or anyone from Tara’s family again. As a person who’s professional enough to be a Fox contributor I would have never expected such a mean hateful comment.

    • Jessica Szilagyi

      June 12, 2019 at 8:40 pm

      Your initial comment to me was to ‘do something about it instead of writing about it” when my job is a writer. Your commentary was helpful, which is why I prefaced my first reply to you the way I did, but also, in my opinion, misguided. I noted that we weren’t familiar with each other – outside of one article – because it seemed that intentions were assumed instead of taking what I said at face value. Just like you took my statement that judges should stop appointing private attorneys to be public defenders to mean that Dukes lawyers were appointed by a judge, even though I did not say that.

      I’m not offended or insulted by anything you’ve said because I don’t know you…but you did make comments about me. That is why I said you weren’t objective, which you aren’t…you’re party to the case in the story. It isn’t a hateful thing, it’s just reality and a part of being human. We are all shaped by experiences.

      You took offense to me saying the issue is bigger than the Grinstead case, which is also the truth. That wasn’t a negative statement or to minimize anything your family has endured. Repeatedly in the article, and to other commenters, I referenced the problem with precedent and state law…both of which have nothing to do with the Grinstead trial. Whatever decision is made by the courts will impact other cases, which means the reach of the subject matter is bigger than the Grinstead case.

      I’m not defending any attorney, media outlet, or anyone else. I can only speak for myself and all I have been saying from the get go is that you made assumptions about what you thought I was saying when I did no such thing. As I said earlier, I do hope your family sees justice and the door of finality soon enough. Take care.

  9. Swanee Owen

    June 12, 2019 at 9:35 pm

    As you said yourself repeatedly go back and read your own article. You clearly said Irwin Co funded a trial for a co defendant. That is not accurate information. That trial was in Wilcox county because that crime occurred in Wilcox Co. and was funded by the taxpayers in that county not the taxpayers in Irwin Co. I clearly stated I felt your information was inaccurate and still do. I didn’t tell you not to write. I said do something instead of writing articles that haven’t been “fact checked “. Spinning my words indicates to me that you’ve got to have the last word no matter what so just say what you want to whether it’s accurate or not. Im beyond wasting my time now.

    • Jessica Szilagyi

      June 12, 2019 at 10:16 pm

      “You won’t hear from me or anyone in Tara’s family again.” – You, before telling me that I’m the one that has to have the last word in your follow-up comment.

      You clearly aren’t reading my comments to you, but I addressed your position on Irwin County, conceding part and countering part. As I said before, you came to argue, not to share, enlighten, or learn. You’re literally back where you started, despite me acknowledging what you’ve said. I do hope the amount of time you’ve spent on here is unique to me and this article.

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