In the Supreme Court of Georgia

Decided: March 15, 2021

S20A1522. DUKE v. THE STATE.

 MELTON, Chief Justice.

We granted interlocutory review in this case1 to decide whether 

the trial court erred in determining that an indigent defendant in a 

criminal case who is represented by private, pro bono counsel has 

neither a statutory right under the Indigent Defense Act of 2003, 

OCGA § 17-12-1 et seq. (“IDA”), nor a constitutional right to statefunded experts and investigators needed to prepare a defense. 

Contrary to the trial court’s conclusion, the IDA allows an indigent 

defendant to obtain such ancillary defense services through a 

contract between pro bono counsel and either the Georgia Public 

Defender Council (“GPDC”) or the appropriate circuit public 

defender. Consequently, we reverse the judgment of the trial court 

 1 This is the third time this Court has addressed pre-trial issues in this 

case. See Duke v. State, 306 Ga. 171 (829 SE2d 348) (2019); WXIA-TV v. State, 

303 Ga. 428 (811 SE2d 378) (2018).
2

in part, vacate it in part, and remand the case with direction.

1. Procedural History

An Irwin County grand jury indicted Ryan Duke in April 2017 

for malice murder and related offenses in connection with the

October 2005 death of Tara Faye Grinstead. For approximately 17 

months, Duke was represented by a public defender from the Tifton 

Judicial Circuit’s Public Defender’s Office. Then, in August 2018,

Duke’s public defender withdrew from representation and John

Merchant and Ashleigh Merchant filed an entry of appearance, 

indicating that they were representing Duke pro bono.2 

In November 2018, defense counsel filed motions seeking funds 

from Irwin County to hire an expert in false confessions and an 

investigator. The trial court denied the motions on December 7, 

2018, ruling that the IDA no longer required local governments to 

provide funding for such requests. A week later, defense counsel refiled the motions for funds, this time requesting that the trial court 

 2 John Gibbs from the law firm Troutman Pepper (formerly Troutman 

Sanders) later filed an entry of appearance in February 2019, joining the 

defense team as pro bono counsel.
3

order the GPDC and the State of Georgia to pay for the defense 

team’s investigator and expert, instead of Irwin County. The trial 

court subsequently denied these motions. 

Then, in February 2019, defense counsel sent a letter to the

GPDC directly, requesting it provide funding for the defense team

to hire a DNA True Allele expert, a forensic psychologist, an expert 

in false confessions, and an investigator, arguing that Duke was 

entitled to such funding under the IDA by virtue of his indigency. 

The director of the GPDC formally denied the request in a detailed 

letter, explaining that, because Duke was represented by private 

counsel, Duke did not qualify for financial assistance, even though 

defense counsel were representing him pro bono. 

Around this same time, defense counsel filed a consolidated 

motion in the trial court requesting funds to hire the same DNA 

True Allele expert, forensic psychologist, false confessions expert, 

and investigator. The trial court held an ex parte hearing on the

motion on February 28, 2019. At the hearing, defense counsel 

presented testimony from John Mobley, the Circuit Public Defender 
4

for the Tifton Judicial Circuit, and Brandon Bullard, who was then 

the Chief Legal Officer of the GPDC, concerning their interpretation 

and application of the IDA as it related to Duke’s request for public 

funds. While Mobley and Bullard agreed that the IDA allowed the 

GPDC and circuit public defenders to contract with consultants and 

lawyers not otherwise employed by the public defender system, 

Bullard testified that there was no mechanism within the IDA that 

would allow private, pro bono counsel to contract with the GPDC in 

order to access state funding for experts and investigators. Further, 

Mobley testified that his office determines whether a defendant 

qualifies for public defender services based upon whether that 

person meets the IDA’s definition of “indigent.” See OCGA § 17-12-

2 (6) (C). Mobley testified that, because Duke had retained private 

counsel, he no longer met that definition. Mobley also noted that 

the director of the GPDC had recently sent Duke a letter explaining 

why he no longer met the IDA’s definition of indigence, and Mobley

“defer[red] to her answer” on the question of indigence. 

After the hearing, but before issuing a written order, the trial 
5

court wrote to defense counsel stating that, though it would likely 

deny the consolidated motion,

it is the opinion of the Court that the [GPDC] cannot 

decline to provide counsel to Mr. Duke because he has pro 

bono counsel or [counsel] that is paid by a third party. So, 

if Mr. Duke reapplies to Mr. Mobley’s office for services, 

declining such an application [on] that ground would 

violate Mr. Duke’s right under the Georgia Constitution.

However, on March 14, 2019, the trial court entered a written order 

denying defense counsel’s consolidated motion. Though the trial 

court found Duke to be indigent and noted that “[t]he record 

developed as to [Duke’s] need for the experts he requests is 

compelling,” the court concluded “that while [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.” In the meantime,

Duke, through his pro bono counsel, re-applied to the Tifton Circuit 

Public Defender for representation. The Circuit Public Defender 

responded, in pertinent part, that the office “is legally and ethically 

obligated to represent only those clients who are qualified for public 

defender services. As [Duke] is currently represented by counsel, 
6

the application . . . is, unfortunately, denied.”

Thereafter, Duke sought certification to appeal the trial court’s

March 14 order. When the trial court refused to certify its order for 

immediate review, Duke filed, in this Court, an Emergency 

Application for Leave to Appeal Interlocutory Order pursuant to 

Waldrip v. Head, 272 Ga. 572 (532 SE2d 380) (2000), along with an 

Emergency Motion for Supersedeas. This Court issued an order 

staying the case, but later dismissed Duke’s application for lack of 

jurisdiction, overruling Waldrip. See generally Duke v. State, 306 

Ga. 171 (829 SE2d 348) (2019).

On remand, Duke renewed his motion for funds for experts and 

an investigator. In his motion, Duke requested that the trial court 

find him indigent again. He also requested that the trial court grant 

state funding for his experts and an investigator, or declare the IDA 

unconstitutional. After a hearing, at which the prosecutors were 

present along with Duke and his defense team,3 the trial court 

 3 All prior motions, hearings, and orders concerning funding were 

handled ex parte. This was the first hearing at which the prosecutors were 

present.
7

denied Duke’s renewed motion in a lengthy order on January 3, 

2020. As to whether Duke qualified as indigent under the IDA, the 

trial court concluded that

[w]hether or not [Duke’s three] pro bono attorneys evinces 

the existence of [his] “other resources” enabling him to 

have counsel without undue hardship is debatable. The 

Tifton Circuit Public Defender obviously believes it does. 

And while his determination in this regard is certainly 

reviewable by the judiciary, in deference to the statutory 

scheme established by the Georgia legislature entrusting 

this determination to the executive branch, the various 

circuit public defenders’ determinations should not be 

disturbed by the judiciary absent such conduct arising to 

a clear and intolerable violation of constitutionally 

guaranteed right(s).

Concerning Duke’s request for funds, the trial court first looked to 

the IDA and concluded that

state-funded ancillary services are authorized solely 

through the circuit public defender and are not severable 

from representation by the GPDC. The [IDA] explicitly 

contemplate[s] state-funded investigators and other 

personnel for the assistance of the circuit public 

defenders. The IDA does not authorize state funds for an 

indigent defendant’s necessary, ancillary services of his 

choice. The IDA does not contemplate a method whereby 

an indigent criminal defendant represented by private or 

pro bono counsel could obtain state funds for ancillary 

defense services. Thus, an indigent defendant is entitled 

to state-funded ancillary services only if represented by 

a public defender.
8

(Emphasis supplied.) Having determined that the IDA did not 

provide a mechanism through which an indigent defendant with pro 

bono counsel could obtain state-funded ancillary services, the trial 

court turned to the constitutional questions presented by this case 

and concluded that the IDA did not violate Duke’s Sixth Amendment 

right to counsel or his Fourteenth Amendment right to due process

under the United States Constitution. At the request of Duke’s 

defense counsel, the trial court timely certified its order for 

immediate review. 

This Court granted Duke’s application for interlocutory appeal 

and subsequently posed three questions to the parties.4 However, 

 4 Initially, upon granting the application, this Court asked the parties:

Did the trial court err in holding that an indigent defendant in a 

criminal case who is represented by private, pro bono counsel 

does not have a constitutional right or a statutory right under 

the Indigent Defense Act, OCGA § 17-12-1 et seq., to state-funded 

experts and investigators?

After receiving the parties’ briefs, as well as briefs from amici curiae, we

requested oral argument and posed two additional questions:

Does an indigent defendant have a due process right to publicly 

funded experts if he chooses to be represented by private, pro bono 

counsel? 
9

based upon the current record in this case, we need not answer those 

questions for two reasons: (1) because the trial court erred by 

adopting the GPDC’s and circuit public defender’s legal 

interpretation that, under the IDA, simply because Duke is 

represented by pro bono counsel, he is not indigent; and (2) because 

the trial court erred by concluding that the IDA provides no 

mechanism for an indigent defendant represented by pro bono 

counsel to obtain state funds for ancillary defense services from the 

GPDC or the circuit public defender. Accordingly, we reverse those 

parts of the trial court order, vacate the trial court’s constitutional 

rulings because those issues did not need to be decided at this time, 

and remand the case for further proceedings consistent with this 

opinion.

2. Analysis

Duke argues that he is indigent, that his indigent status

 

If so, then what government entity is responsible for providing the 

funding for such experts and investigators in this case? 
10

entitles him to state-funded ancillary services – here, experts and 

an investigator – under the IDA, and that the trial court’s 

conclusions that he is not indigent and that he is not entitled to 

state-funded ancillary services were erroneous. He further argues 

that his decision to exercise his constitutional right to counsel of his 

choice cannot impede his constitutional right to due process and a 

fair trial by denying him, as an indigent defendant, access to statefunded ancillary services. In response, the State argues that the 

trial court properly ruled that Duke no longer met the definition of 

“indigent” under the IDA because he had retained “high profile” pro 

bono counsel, that the IDA does not provide a mechanism for the 

GPDC to pay for Duke’s ancillary services, and that Duke waived 

his constitutional right to state-funded ancillary services when he 

chose to forgo representation by state-funded counsel. 

a. Indigency under the IDA

First, we review the trial court’s ruling on Duke’s indigent 

status. The IDA establishes the GPDC as “an independent agency 

within the executive branch of state government,” OCGA § 17-12-1 
11

(b), that is “responsible for assuring that adequate and effective 

legal representation is provided . . . to indigent persons who are 

entitled to representation under this chapter,” OCGA § 17-12-1 (c). 

(Emphasis supplied.) OCGA § 17-12-2 (6) (C) defines an “indigent 

defendant” for purposes of the IDA as 

[a] person charged with a felony who earns or, in the case 

of a juvenile, whose parents earn, less than 150 percent 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, or, in the case of a juvenile, 

his or her parents or the parent’s dependents.

(Emphasis supplied.). The parties agree that the IDA applies only 

to indigent defendants as so defined, and it is undisputed that Duke 

is charged with a felony and earns less than 150% of the federal 

poverty guidelines. The parties disagree, however, as to whether 

pro bono counsel qualifies as “other resources that might reasonably 

be used to employ a lawyer,” therefore removing Duke from the 

statutory definition of indigency. We agree with Duke that the trial

court erred in adopting the GPDC and circuit public defender’s

interpretation of OCGA § 17-12-2 (6) (C) that pro bono counsel 
12

qualifies as “other resources” under the IDA’s definition of 

indigency. 

It is well settled that “[a] statute draws its meaning . . . from 

its text.” (Citation omitted.) Chan v. Ellis, 296 Ga. 838, 839 (1) (770 

SE2d 851) (2015). When interpreting a statute, we must give the 

text its plain and ordinary meaning, view it in the context in which 

it appears, and read it in its most natural and reasonable way, see 

Deal v. Coleman, 294 Ga. 170, 172-173 (1) (751 SE2d 337) (2013) 

while also giving meaning to all words in the statute, see Arby’s Rest. 

Grp., Inc. v. McRae, 292 Ga. 243, 245 (734 SE2d 55) (2012). When 

we construe a statute on appeal, our review is de novo. See Hankla 

v. Postell, 293 Ga. 692, 693 (749 SE2d 726) (2013). 

OCGA § 17-12-2 (6) (C) contemplates that a criminal defendant 

with earnings below certain poverty guidelines is indigent unless he 

has “other resources that might reasonably be used to employ a 

lawyer.” (Emphasis supplied.). While the parties focus their 

arguments on the phrase “other resources,” we must consider the 

meaning of this phrase in conjunction with the rest of the sentence, 
13

and, in doing so, we must determine what it means to “employ” a 

lawyer. The term “resources” is broadly defined to mean “a source 

of supply or support; an available means,” “a natural source of 

wealth or revenue,” and “computable wealth.” Merriam Webster’s 

Collegiate Dictionary 997 (10th ed. 1995). Meanwhile, “employ,”

when it is used in connection with personal services, is defined as 

hiring a person for pay. See, e.g., Webster’s New World College 

Dictionary 446 (4th ed. 2007) (defining “employ” in this context as 

“to provide work and pay for, to engage the services or labor for pay” 

and “the state of being employed, esp. for pay; paid service”); 

Merriam Webster’s Collegiate Dictionary 379 (10th ed. 1995) 

(defining “employ” in this context as “to provide with a job that pays 

wages or a salary”); The New Shorter Oxford English Dictionary, 

Volume 1, 810 (1993) (defining “employ” in this context as to “use or 

retain the services of (a person), esp. in return for payments; pay (a 

person) to work for oneself or one’s organization”). Giving the

pertinent text of the statute its plain and ordinary meaning in the 

context in which it appears, the “other resources” – i.e., resources 
14

other than “earnings” – must be usable to “employ” – i.e., provide 

work and pay for – a lawyer. But the very definition of pro bono 

counsel is lawyers who represent clients without pay. See Black’s 

Law Dictionary (11th ed. 2019) (defining “pro bono” as 

“[u]ncompensated, esp. regarding free legal services performed for 

the indigent or for a public cause”). 

Simply put, when a defendant is represented by pro bono 

counsel, that lawyer is not an “other resource” available to “employ 

a lawyer.” Further, the fact that a defendant has pro bono counsel 

is not evidence that he has “other resources that might reasonably 

be used to employ a lawyer” for the purpose of determining indigence 

under OCGA § 17-12-2 (6) (C). The trial court’s adoption of an

interpretation to the contrary was error.5

b. Pro bono counsel’s potential access to state funds under 

the IDA

Next, we turn to the question of whether the IDA includes a 

 5 The record does not indicate that Duke has any “other resources that 

might reasonably be used to employ a lawyer,” although, we recognize that a 

finding of indigency or non-indigency can always be reconsidered if 

circumstances change.
15

mechanism for pro bono counsel to access state funding for ancillary 

defense services. Reading the statute as a whole, we conclude that 

the trial court’s ruling (in accord with the GPDC’s assertion) that 

pro bono counsel have no means by which to access state-funded 

ancillary services under the IDA is erroneous. 

The IDA provides state-funded legal defense services for 

indigent defendants, which includes attorneys and investigators. 

See OCGA §§ 17-12-23 (discussing representation of indigent 

defendants by circuit public defenders); 17-12-28 (authorizing 

employment of investigators by circuit public defenders); 17-12-29 

(authorizing employment of administrative, clerical, and 

paraprofessional personnel by circuit public defenders). The IDA 

further requires the director of the GPDC to 

work with and provide support services and programs for 

circuit public defender offices and other attorneys 

representing indigent persons in criminal or juvenile cases 

in order to improve the quality and effectiveness of legal 

representation of such persons and otherwise fulfill the 

purposes of this chapter. Such services and programs 

shall include, but shall not be limited to, technical,

research, and administrative assistance; educational and 

training programs for attorneys, investigators, and other 

staff; assistance with the representation of indigent 
16

defendants with mental disabilities; assistance with the 

representation of juveniles; assistance with death penalty 

cases; and assistance with appellate advocacy.

(Emphasis supplied.) OCGA § 17-12-5 (b) (1). See also OCGA § 17-

12-5 (b) (3) (“The director may . . . contract with outside consultants 

on behalf of the office as may be necessary to provide the services 

contemplated by this chapter.”).6 The text and structure of the IDA

therefore indicate that the GPDC and its director will support 

attorneys who represent indigent defendants but are not in a circuit 

public defender office. 

The IDA also allows the GPDC and circuit public defenders to 

contract with outside counsel and then provide ancillary service 

funding to indigent defendants represented by such attorneys. The 

IDA expressly requires the GPDC to contract with conflict attorneys 

in death penalty cases. See OCGA § 17-12-12.1. The statute also 

allows circuit public defenders to employ, in addition to assistant 

and deputy public defenders, “other attorneys” where authorized by 

 6 The General Assembly also granted the GPDC the general authority to 

contract. See OCGA § 17-12-4 (a) (3) (“The council . . . [m]ay contract.”).
17

local law and funding. See OCGA § 17-12-31 (a). 

It is clear that “other attorneys” refers to attorneys who do not 

work in circuit public defender offices. See OCGA §§ 17-12-5 (b) (1) 

(“The director shall work with and provide support services and 

programs for circuit public defender offices and other attorneys

representing indigent persons in criminal or juvenile cases . . .”) 

(emphasis supplied); 17-12-31 (a) (“The circuit public defender in 

each judicial circuit may employ additional assistant circuit public 

defenders, deputy circuit public defenders, or other attorneys . . . .”) 

(emphasis supplied). But, the State argues that “other attorneys”

refers only to the non-public defenders specifically mentioned within 

the IDA, namely conflict counsel and capital defenders. Duke

argues that “other attorneys” need not be read so restrictively, and

that doing so would violate his Sixth Amendment right to counsel of 

his choice and his Fourteenth Amendment right to due process and 

a fair trial. Instead, Duke argues that the legislature intended 

“other attorneys” to extend generally to counsel outside the public 

defender system who represent criminal defendants who qualify as 
18

indigent under the IDA. As a textual matter, we agree with Duke

that “other attorneys” is best read broadly.

“Other,” an expansive term, is defined as “the remaining one 

or ones of two or more; different or distinct from that or those 

referred to or implied; different in nature or kind; further or 

additional; former.” Webster’s New World College Dictionary 1021 

(4th ed. 2007). See also Merriam Webster’s Collegiate Dictionary 

823 (10th ed. 1995) (defining “other” as “being the one (as of two or 

more) remaining or not included; being the one or ones distinct from 

that or those first mentioned or implied”); The New Shorter Oxford 

English Dictionary, Volume II, 2031 (1993) (defining “other” as “that 

remain(s) from a specified or implied group of two or (later) more” 

and “existing besides or distinct from that or those already specified 

or implied; further, additional”). And the General Assembly utilized 

the word “other” throughout the IDA to broadly refer to things

beyond those specified in the statute. See, e.g., with all emphases 

supplied, OCGA §§ 17-12-6 (a) (1) (“The [GPDC] may assist public 

defenders throughout the state . . . [with t]he preparation and 
19

distribution of a basic defense manual and other educational 

materials”); 17-12-10.2 (“The members of the [GPDC] as created by 

this article, the members of the circuit public defender supervisory 

panel created by Article 2 of this chapter, and other policy-making 

or administrative personnel acting in a policy-making or 

administrative capacity shall not be subject to civil liability”); 17-12-

32 (“The governing authority of such county or municipality shall 

transfer to the council such funds as may be necessary to cover the 

compensation, benefits, travel, and other expenses for such 

personnel”); 17-12-51 (a) – (d) (multiple provisions authorizing trial 

courts to order defendants represented by a public defender to pay 

“all or a portion of the cost for providing legal representation and 

other expenses of the defense” as a condition of probation).

Moreover, the General Assembly references attorneys 

representing indigent defendants in various parts of the IDA

without limiting the meaning of those “attorneys” to either conflict 

counsel or capital defenders. See, e.g., with emphases supplied 

OCGA §§ 17-12-5 (b) (1); 17-12- 6 (a) (3) (explaining that the GPDC 
20

may help in “[t]he promotion of and assistance in the training of 

indigent defense attorneys”); 17-12-11 (b) (providing “the circuit 

public defender or other attorney who represented the indigent person

at the time of the finding of not guilty by reason of insanity” the 

option to continue representation of that person); 17-12-31 (a) (“The 

circuit public defender in each judicial circuit may employ additional 

assistant circuit public defenders, deputy circuit public defenders, 

or other attorneys . . . .”). Indeed, when the General Assembly wished 

to limit the IDA’s reach as it applies to “other attorneys,” the 

legislature did so explicitly. See, e.g., with all emphases supplied, 

OCGA §§ 17-12-24 (c) (“The circuit public defender shall keep and 

maintain appropriate records, which shall include the number of 

persons represented, including cases assigned to other counsel based 

on conflict of interest”); 17-12-33 (a) & (b) (referring to “other 

attorney[s] at law employed full time by the circuit public defender”); 

17-12-50 (2) (defining “[p]ublic defender” as “an attorney employed 

by a circuit public defender office or any other attorney who is paid 

from public funds to represent an indigent person in a criminal 
21

case”). If the General Assembly wanted to limit the GPDC’s ability 

to contract with “other attorneys” exclusively to conflict counsel and 

capital defenders, it could have done so explicitly, instead of simply

utilizing the expansive term “other.” For all of these reasons, we 

conclude that the IDA provides pro bono counsel representing 

indigent defendants access to state-funded ancillary defense 

services by contracting with either the GPDC or the appropriate 

circuit public defender. The trial court’s contrary conclusion was 

erroneous.

The State asserts that allowing pro bono counsel access to 

public funds for ancillary services through the IDA would drain the 

GPDC’s resources to provide competent representation to indigent 

defendants represented by public defenders. We disagree. The IDA 

established a system, supervised by the GPDC, for funding defense

counsel and ancillary services for indigent defendants to ensure that 

defense lawyers and ancillary service providers are competent and 

conflict-free, and that public funds are used in compliance with the 
22

statutory scheme.7 The GPDC exercises that oversight not just for 

its own employees and the circuit public defenders and their 

employees, but also through contracts with outside counsel and

ancillary service providers. See, e.g., OCGA §§ 17-12-12.1; 17-12-28; 

17-12-29; 17-12-31 (a). Indeed, the State’s asserted fiscal interests 

are actually advanced by the ability of the GPDC and the circuit 

public defenders to contract with pro bono counsel representing 

indigent defendants. In that scenario, the GPDC retains oversight 

of the competence and cost of ancillary services while avoiding the 

expenditure of additional public funds to provide counsel because

pro bono counsel need not be compensated for the work. 

3. Conclusion

 7 See, e.g., OCGA §§ 17-12-4 (b) (requiring GPDC to establish an auditing 

procedure for the handling of public funds); 17-12-5 (b) (1) (requiring the 

director of the GPDC to work with and provide support services and programs 

for attorneys representing indigent defendants “in order to improve the quality 

and effectiveness of legal representation of such persons”); 17-12-5 (d) 

(detailing, among other things, the financial oversight duties of the GPDC 

director); 17-12-6 (b) (1) (establishing the GPDC as “the fiscal officer for the 

circuit public defender offices [who] shall account for all moneys received from 

each governing authority”); 17-12-7 (requiring the GPDC to “at all times act 

in the best interest of indigent defendants who are receiving legal 

representation” under the IDA). 
23

Based on the foregoing, we conclude that the IDA provides a 

mechanism for pro bono counsel representing an indigent defendant 

to access public funding for ancillary defense services: by entering

into a contractual relationship with either the circuit public 

defender or directly with the GPDC. We note that, although Duke’s 

pro bono counsel applied for funding from the GPDC, the record does 

not indicate that his counsel has tried to contract for ancillary 

services with either the GPDC or the Tifton Judicial Circuit Public 

Defender, as is authorized under the IDA. But, given the GPDC’s 

legal position, the circuit public defender’s adoption of the same

position, and the trial court’s endorsement of that position in its 

January 2020 order, such a request for a contract likely would have 

been futile before our opinion today.

To be clear, we do not hold that an indigent defendant who has 

pro bono counsel is entitled to more favorable conditions in terms of 

ancillary services under the IDA through a contract with the GPDC 

or a circuit public defender than any other indigent defendant who 

is represented by counsel under the IDA. Instead, we merely hold 
24

that there is a mechanism under state law for pro bono counsel 

representing an indigent defendant to access public funding for

ancillary services. This also means that we need not conclusively 

decide at this time whether, in this case, the United States 

Constitution requires provision of ancillary services for indigent 

defendants by some other mechanism outside the IDA.

Accordingly, we reverse the parts of the trial court’s order 

ruling that pro bono counsel qualify as “other resources that might 

reasonably be used to employ a lawyer” under the IDA’s definition 

of indigency, and that the IDA does not provide a mechanism by 

which an indigent criminal defendant represented by pro bono 

counsel can obtain state funds for ancillary defense services. 

Because the contractual mechanism is available to Duke, there is no 

need at this point to address the difficult constitutional questions 

that would arise if Duke is unable to obtain needed ancillary services 

in this case.8 Because the trial court also did not have to decide 

 8 For example, it is not clear under the United States Constitution how 

an indigent defendant who exercises his Sixth Amendment right to counsel of 
25

those questions, we vacate that portion of the trial court’s order. 

And we remand the case to allow Duke to seek a contract with the 

GPDC or the circuit public defender that would provide him access 

to state-funded ancillary services.9 

Judgment reversed in part and vacated in part, and case 

remanded with direction. All the Justices concur, except Bethel, J., 

who dissents.

 

his choice, either by choosing pro bono counsel or by proceeding pro se, can 

obtain public funding for ancillary services to which he is entitled as a matter 

of due process under the Fourteenth Amendment if a state’s statutory indigent 

defense system does not provide such funding. Indeed, as briefed by the parties 

and amici curiae in this case, appellate courts across the country have wrestled 

with this question and have reached differing conclusions. Compare, e.g., State 

v. Wool, 648 A2d 655, 660 (Vt. 1994); Ex Parte Sanders, 612 S2d 1199, 1201

(Ala. 1993); State v. Boyd, 418 SE2d 471, 475-476 (NC 1992), with, e.g., 

Crawford v. State, 404 P3d 204, 216 (Alaska Ct. App. 2017); Moore v. State, 

889 A2d 325, 343 (Md. 2006); People v. Cardenas, 62 P3d 621, 623 (Colo. 2002).

The dueling analyses by the concurring and dissenting opinions further 

demonstrates the difficulty of deciding this question. Moreover, a 

determination by this Court that a constitutional right to state-funded 

ancillary services exists outside the IDA would create additional issues in 

determining which public entity should provide such funding. 

9 We express no opinion as to whether the ancillary services that Duke 

has requested are needed under Ake v. Oklahoma, 470 U.S. 68 (105 SCt 1087, 

84 LE2d 53) (1985).
26

S20A1522. DUKE v. THE STATE.

 PETERSON, Justice, concurring.

I concur in the majority opinion. I write separately to make 

explicit something the majority leaves implicit: the GPDC would be 

most unwise to decline to contract with Duke’s counsel on remand. 

This is because, contrary to the dissent’s dismissal of Duke’s

constitutional arguments, Duke may very well have a constitutional 

right to state-funded experts. To determine whether Duke in fact 

does have such a right notwithstanding his representation by pro 

bono lawyers would require us to decide a thorny constitutional 

question of first impression in this jurisdiction. Happily, the 

majority’s interpretation of the IDA renders such a difficult analysis 

unnecessary today. 

We have often observed that the Constitution does not forbid 

the criminal justice system from imposing hard choices on 

defendants. See, e.g., Elliott v. State, 305 Ga. 179, 211 (IV) (B) (824 

SE2d 265) (2019) (“[T]his poor option set [posed to a DUI arrestee] 
27

is merely a consequence of there being probable cause to arrest a 

person for driving under the influence. And making a choice between 

two unpalatable options is still a choice.”). This is so even when those 

hard choices involve competing constitutional rights; the criminal 

justice system need not invent new procedures to eliminate the 

natural consequences of choosing a particular path. And the United 

States Supreme Court has repeatedly observed that its holdings that 

indigent defendants are entitled to certain state-funded assistance 

do not dictate to the states a specific mechanism for providing that 

assistance. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 83 (105 SCt

1087, 84 LE2d 53) (1985) (“Our concern is that the indigent 

defendant have access to a competent psychiatrist for the purpose 

we have discussed, and as in the case of the provision of counsel we 

leave to the States the decision on how to implement this right.”); 

Griffin v. Illinois, 351 U.S. 12, 20 (76 SCt 585, 100 LE2d 891) (1956) 

(“We do not hold, however, that Illinois must purchase a 

stenographer’s transcript in every case where a defendant cannot 

buy it. The [Illinois] Supreme Court may find other means of 
28

affording adequate and effective appellate review to indigent 

defendants.”).

But, as discussed below, neither of those familiar principles 

decides this case, which involves two unrelated and not incompatible 

rights — the right to counsel of choice and an indigent criminal 

defendant’s right to publicly funded ancillary defense services. Both 

the United States and Georgia Constitutions enshrine strong rights 

to counsel of choice. The United States Supreme Court has long held 

that the Sixth Amendment includes, within limits, a right for the 

defendant to choose the counsel he thinks will best serve him. See 

United States v. Gonzalez-Lopez, 548 U.S. 140, 146-48 (126 SCt 

2557, 165 LE2d 409) (2006) (“So also with the Sixth Amendment 

right to counsel of choice. It commands, not that a trial be fair, but 

that a particular guarantee of fairness be provided — to wit, that 

the accused be defended by the counsel he believes to be best. . . . 

The right to select counsel of one’s choice . . . has never been derived 

from the Sixth Amendment’s purpose of ensuring a fair trial. It has 

been regarded as the root meaning of the constitutional 
29

guarantee.”); Powell v. Alabama, 287 U.S. 45, 53 (53 SCt 55, 77 LE 

158) (1932) (“It is hardly necessary to say that, the right to counsel 

being conceded, a defendant should be afforded a fair opportunity to 

secure counsel of his own choice.”). The provision now found at 

Article I, Section I, Paragraph XIV of the Georgia Constitution —

“[e]very person charged with an offense against the laws of this state 

shall have the privilege and benefit of counsel” — embodies a robust 

right to choice of counsel as well. See Registe v. State, 287 Ga. 542, 

544 (2) (697 SE2d 804) (2010) (“One element of the right to counsel 

in criminal prosecutions, as guaranteed by the Sixth Amendment . . 

. [and] the Georgia Constitution of 1983, is the right of a defendant 

who does not require appointed counsel to choose who will represent 

him.”); Delk v. State, 100 Ga. 61, 61 (1) (27 SE 152) (1896) (“The 

provision in the ‘bill of rights’ declaring that ‘every person charged 

with an offense against the laws of this State shall have the privilege 

and benefit of counsel’ confers upon every person indicted for crime 

a most valuable and important constitutional right, and entitles him 

to be defended by counsel of his own selection whenever he is able 
30

and willing to employ an attorney and uses reasonable diligence to 

obtain his services.”). And pertinent to this case, the United States 

Supreme Court has made clear that the federal right to choice of 

counsel extends to pro bono counsel. See Caplin & Drysdale v. 

United States, 491 U.S. 617, 624-25 (109 SCt 2646, 105 LE2d 528) 

(1989) (“[T]he Sixth Amendment guarantees a defendant the right 

to be represented by an otherwise qualified attorney whom that 

defendant can afford to hire, or who is willing to represent the 

defendant even though he is without funds.”).

The other right at issue in this case, an indigent criminal 

defendant’s right to publicly funded ancillary defense services, is 

clearly established by the United States Supreme Court. See 

McWilliams v. Dunn, __ U.S. __, __ (137 SCt 1790, 198 LE2d 341) 

(2017) (“Ake clearly established that a defendant must receive the 

assistance of a mental health expert who is sufficiently available to 

the defense and independent from the prosecution to effectively 

‘assist in evaluation, preparation, and presentation of the 
31

defense.’”).10 This right is rooted in the Due Process Clause, not 

merely derivative of the Sixth Amendment right to appointed 

counsel. See Ake, 470 U.S. at 76-83 (Fourteenth Amendment Due 

Process Clause confers a right to access to a psychiatrist to assist 

defense where sanity at time of offense is to be a significant factor 

at trial). The right of expert assistance thus is distinct from the right 

to choice of counsel and must be safeguarded independently. 

No case law supports forcing a choice between two 

constitutional rights that don’t already have some meaningful 

tension between them such that they are to some extent mutually 

exclusive. To be sure, “[t]he criminal process, like the rest of the 

 10 We have held that this right extends beyond psychiatric experts. See 

Bright v. State, 265 Ga. 265, 270 (2) (c) (455 SE2d 37) (1995); Roseboro v. State, 

258 Ga. 39, 40 (3) (b) (365 SE2d 115) (1988). An indigent criminal defendant 

generally is entitled to state funds for an expert to examine “critical evidence, 

which, in light of its novelty, is likely to be the subject of varying expert 

opinions.” Thornton v. State, 255 Ga. 434, 435 (2) (339 SE2d 240) (1986); see 

also Finn v. State, 274 Ga. 675, 677 (2) (558 SE2d 717) (2002).

In order to obtain funds for an expert witness, a motion on behalf 

of an indigent criminal defendant “should disclose to the trial 

court, with a reasonable degree of precision, why certain evidence 

is critical, what type of scientific testimony is needed, what that 

expert proposes to do regarding the evidence, and the anticipated 

costs for services.”

Williams v. State, 303 Ga. 474, 476 (2) (813 SE2d 384) (2018) (quoting 

Roseboro, 258 Ga. at 41 (3) (d)).
32

legal system, is replete with situations requiring the making of 

difficult judgments as to which course to follow.” McGautha v. 

California, 402 U.S. 183, 213 (91 SCt 1454, 28 LE2d 711) (1971)

(citation and punctuation omitted), vacated on other grounds sub. 

nom. Crampton v. Ohio, 408 U.S. 941 (92 SCt 2873, 33 LE2d 765)

(1972). “Although a defendant may have a right, even of 

constitutional dimensions, to follow whichever course he chooses, 

the Constitution does not by that token always forbid requiring him 

to choose.” Id. But a defendant’s constitutional rights may be 

violated when “compelling the election impairs to an appreciable 

extent any of the policies behind the rights involved.” Id. Here, 

compelling an indigent defendant to choose between his two rights 

⸺ accessing state-funded ancillary defense services and retaining 

his chosen pro bono counsel ⸺ potentially impairs to an appreciable 

extent one or both of those rights. There is no clear tension between 

the simultaneous exercise of those two rights that naturally leads to 
33

compelling such a choice.11

Whether the State may force an indigent defendant to waive 

his right to counsel of choice in order to invoke his right to statefunded experts is particularly questionable given that the State has 

offered no good reasons for such a requirement. The State argues 

that requiring it to provide ancillary services to those indigent 

defendants who choose counsel outside the services of the GPDC 

“poses a significant and seemingly exponential financial burden 

upon the State.” But budgetary concerns alone are insufficient to 

relieve the State of its obligations to safeguard both the right to 

counsel of choice and the right to ancillary defense services for 

 11 I also note that longstanding United States Supreme Court doctrine 

provides that the government may not deny a person a benefit — even one that 

it is not obligated to provide — on a basis that infringes upon the person’s 

constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597 (92 SCt 2694, 

33 LE2d 570) (1972) (even though a person has no “right” to a valuable 

governmental benefit and even though the government may deny him the 

benefit for any number of reasons, the government may not deny a benefit to a 

person on a basis that infringes his constitutionally protected interests).

Although this principle may not directly apply to the case at hand, it seems 

relevant here where the benefit — public funding for certain ancillary defense 

services for indigent defendants — is something that the State is in fact 

constitutionally obligated to provide. I question whether the State may 

condition access to that benefit on giving up one’s choice of counsel.
34

indigent defendants. See Garland v. State, 283 Ga. 201, 205 n.5 (657 

SE2d 842) (2008) (“In light of the constitutional rights involved, we 

find no merit in the Council’s policy arguments, e.g., the need for 

trial lawyers to gain appellate experience, or in its budgetary 

concerns that it raises as warranting a different holding.”). This is 

particularly true here, where there are other ways to ensure cost 

control and quality. As today’s majority opinion explains in detail, 

the IDA provides a mechanism for pro bono counsel representing 

indigent defendants to contract with either the GPDC or a circuit 

public defender in order to access state-funded ancillary defense 

services, giving the State a mechanism to control the terms of the 

provision of such services.12 And even in the absence of such a 

contract, the trial court retains the authority and responsibility to 

determine whether the defendant is entitled to the requested 

resources and approve the specific expert or other resource to be 

 12 I agree with the majority opinion that pro bono counsel may not dictate 

the terms of such a contract; I don’t see any constitutional reason why such 

contracts would have to be on any different terms than those the GPDC and 

the circuit public defenders already have with conflict attorneys.
35

provided. See Brown v. State, 260 Ga. 153, 157 (7) (391 SE2d 108) 

(1990) (indigent defendant’s right to expert assistance is not a “right 

to choose a psychiatrist of his personal liking or to receive funds to 

hire his own”); Thornton v. State, 255 Ga. 434, 435 (3) (339 SE2d 

240) (1986) (providing that the trial court “shall appoint an 

appropriate professional, whose experience, at minimum, is 

substantially equivalent to that of the state’s expert witness, to 

examine the state’s evidence on behalf of” the defendant and 

“approve the payment of reasonable compensation for such 

services”).13 Thus, Duke’s claim is not resolved merely by applying 

the familiar principles that the Constitution does not forbid 

compelling hard choices and does not dictate the specific 

mechanisms for providing constitutionally required expert 

 13 The State’s claim that Duke’s position would impose on it a severe 

financial burden is itself a bit mystifying. The State’s position would seem to 

discourage lawyers from taking on the cases of indigent criminal defendants 

pro bono, shifting additional defense representation costs onto the State. See 

English v. Missildine, 311 NW2d 292, 294 (Iowa 1981) (“It would be strange if 

the Constitution required the government to furnish both counsel and 

investigative services in cases where the indigent needs and requests public 

payment for only investigative services. The State’s theory would impose an 

unreasonable and unnecessary additional burden on the public treasury.”).
36

assistance.14

And it is perhaps for that reason that the dissent advances a 

wholly different and unfamiliar principle: that the State may 

condition its compliance with the federal Due Process Clause’s 

mandate to provide a fair trial upon the waiver of unrelated state 

and federal constitutional rights — here, the right to counsel of 

choice. The dissent does not cite a single case for this novel 

proposition.15 Nor does the dissent explain how much further its 

proposition might extend. If the State may condition satisfying its 

constitutional obligation to provide expert assistance upon a waiver 

 14 I agree with the dissent that even if the IDA did not permit contracting 

with Duke’s counsel, the statute would still not be unconstitutional. But in my 

view, that’s because even then the IDA would not prohibit Duke from receiving 

ancillary services; it simply would not be the vehicle for providing them and 

Duke would have to look directly to the trial court for such services. Thus, to 

the extent constitutional claims must satisfy a higher standard when they 

challenge a statute, I don’t consider that higher standard applicable here.

15 For that matter, not a single case cited in the dissent even involves the 

guarantee that we have found in the Georgia Constitution of indigent 

defendants to at least some state-funded expert assistance that is distinct from 

the federal right articulated in Ake. See Williams v. Newsome, 254 Ga. 714, 

715-16 (334 SE2d 171) (1985) (finding it unnecessary to decide applicability of 

Ake because the Georgia Constitution provided independent and adequate 

state grounds for decision that criminal defendant was entitled to psychiatric 

examination).
37

of unrelated constitutional rights, what’s to stop the State from 

requiring waivers of other rights? I see little reason why the State 

may require waiver of the rights to counsel of choice, but not, say, 

waiver of the rights against unreasonable searches or seizures, or 

waiver of the rights to a jury trial, or, for that matter, waiver of the 

rights to say things critical of the government.16 And the dissent 

cites no decision from our Court or the United States Supreme Court 

requiring rejection of Duke’s claim that he is constitutionally 

entitled to ancillary defense resources simply because he has 

secured lawyers to represent him pro bono, and I have found no such 

authority.17

 16 It seems to me that the State could make a pretty good case that the 

assertion of each of these rights creates inefficiencies of one kind or another. 

Or, at least, that requiring their waivers would generate more efficiencies than 

the State’s attempt in this case to force Duke to accept state-funded counsel 

when he doesn’t want it. Many of the most important provisions of the state 

and federal constitutions sacrifice efficiency for liberty. That’s generally 

considered a feature, not a bug.

17 I note that both the federal and Georgia constitutions embody robust 

rights to self-representation. See Faretta v. California, 422 U.S. 806, 821-32

(95 SCt 2525, 45 LE2d 562) (1975); Oliver v. State, 305 Ga. 678, 679-80 (2) (827 

SE2d 639) (2019); see also Ga. Const. of 1983, Art. I, Sec. I, Par. XII (“No person 

shall be deprived of the right to prosecute or defend, either in person or by an 

attorney, that person’s own cause in any of the courts of this state.”). The 

dissent expressly reserves the question of whether an indigent defendant 
38

The dissent alludes to limitations on the right to choice of 

counsel. In particular, “the right to counsel of choice does not extend 

to defendants who require counsel to be appointed for them.” 

Gonzalez-Lopez, 548 U.S. at 151. But this merely reflects that the 

scope of the right to state-funded appointed counsel does not include 

the right to choose your attorney. Again, in the criminal defense 

context, the right to counsel of choice is the right to choose “an 

otherwise qualified attorney whom that defendant can afford to hire, 

or who is willing to represent the defendant even though he is 

without funds.” Caplin & Drysdale, 491 U.S. at 624-25. And the 

right to appointed counsel is the indigent criminal defendant’s right 

for the state to appoint for the defendant counsel at the state’s 

expense and of the state’s choosing. This right does not contain 

within it the right of an indigent defendant to choose the appointed 

lawyer. Duke is not asserting this right; it has nothing to do with 

 

proceeding pro se (and thus rejecting public defenders) has a constitutional 

right to state-funded ancillary defense services. But I see no convincing reason 

for treating defendants exercising the right to self-representation differently 

from those exercising the right to counsel of choice.
39

this case. And so any relation this right may have to the due process 

right to ancillary services for indigent criminal defendants is wholly 

irrelevant to whether the State may condition those ancillary 

services on the waiver of the separate right to counsel of choice.

A few appellate courts in other jurisdictions have concluded 

that a state may constitutionally bundle together legal 

representation and ancillary defense services, such that an indigent 

defendant must accept a state-funded attorney in order to access 

other state-funded defense services. But these cases either assume 

that the right to state-funded ancillary defense services is a 

subsidiary of the right to counsel, or are otherwise poorly reasoned. 

For instance, in State v. Earl, 345 P3d 1153 (Utah 2015), the Utah 

Supreme Court framed the rights at issue as subsidiaries of the right 

to counsel, saying, “The constitutional right to counsel encompasses 

the prerogative of choosing counsel of one’s choice and of receiving 

resources necessary to an adequate defense.” Id. at 1158. Although 

the Utah court cited Ake for that proposition, Ake makes clear that 

the availability of funding for ancillary defense services involves a 
40

right independently rooted in the Due Process Clause. See 470 U.S. 

at 76-83. This makes Earl’s bases for concluding that the federal 

constitution does not forbid denying public defense resources to an 

indigent defendant who opts out of public representation — that the 

right to choice of counsel is circumscribed, and an indigent defense 

is entitled to only the tools for an adequate defense, see 345 P3d at 

1158-59 — particularly unsatisfying. A Colorado appellate decision, 

People v. Thompson, 413 P3d 306 (Colo. Ct. App. 2017), does no 

better. It assumes that because the Sixth Amendment right to 

counsel of choice does not confer a right to public funding to pay the 

defendant’s chosen attorney, the right to counsel of choice “does not 

extend to indigent defendants who require courts to spend public 

funds to pay for their ancillary services.” Thompson, 413 P3d at 317-

18. Having offered up this unpersuasive syllogism that examined

the issue solely through the Sixth Amendment lens, the court then 

attempted to grapple with the due process right to experts 

recognized in Ake, focusing on language in Ake to the effect that a 

defendant “did not have ‘a constitutional right . . . to receive funds 
41

to hire his own’ experts.” Thompson, 413 P3d at 319 (quoting Ake, 

470 U.S. at 83). The Colorado decision thus fails to recognize that, 

even in the absence of public representation, the trial court may 

control the appointment of experts.18

Thankfully, we need not answer definitively today the question 

of whether Duke’s pro bono representation means he is not 

constitutionally entitled to publicly funded expert defense services. 

But it may well be that Duke is correct that the nature of his 

relationship with his counsel does not preclude his access to such 

services. Now that the GPDC understands that it has the authority 

to contract with Duke’s counsel and thereby provide funding for 

experts necessary to Duke’s case, the GPDC would do well to do so, 

 18 Another state appellate court decision holding that the federal 

constitution does not require providing experts to indigent criminal defendants 

represented by pro bono counsel relies heavily on a prior decision by the court 

about access to transcripts. See Moore v. State, 889 A2d 325, 344-46 (Md. Ct. 

App. 2005) (discussing State v. Miller, 651 A2d 845 (Md. Ct. App. 1994)). 

Although an indigent defendant’s right to a free transcript may stem at least 

in part from the same due process right as the right to a publicly funded expert, 

see Griffin, 351 U.S. at 18-19, the prior Maryland decision did little analysis of 

the former issue before concluding that “[f]ailure to provide a free transcript to 

the indigent appellant cannot interfere with the right to choice of counsel 

where no such absolute right exists.” Miller, 651 A2d at 853.
42

lest the already-considerable delays in bringing this case to trial 

grow even longer.

I am authorized to state that Justice Boggs and Justice Warren 

join in this concurrence. 
43

S20A1522. DUKE v. THE STATE

BETHEL, Justice, dissenting.

When the State charges an indigent person with a crime in 

Georgia, state and federal constitutional considerations require the 

State to ensure the defendant has access to competent and effective 

legal representation and appropriate defense resources at the

expense of the State. See Ake v. Oklahoma, 470 U. S. 68, 76-83 (III) 

(A) (105 SCt 1087, 84 LE2d 53) (1985); Strickland v. Washington, 

466 U. S. 668, 686 (II) (104 SCt 2052, 80 LE2d 674) (1984); Britt v. 

North Carolina, 404 U. S. 226, 227 (92 SCt 431, 30 LE2d 400) (1971); 

Gideon v. Wainwright, 372 U. S. 335, 339-345 (II) (83 SCt 792, 9 

LE2d 799) (1963); Roberts v. State, 263 Ga. 764, 765 (1) (438 SE2d 

905) (1994); Lewis v. State, 255 Ga. 101, 105 (3) (335 SE2d 560) 

(1985). The indigent defendant is not obligated to accept these 

publicly funded resources, but he effectively forfeits his 

constitutional right to private counsel of his own choosing while he 

uses the publicly funded resources. See United States v. GonzalezLopez, 548 U. S. 140, 151 (IV) (126 SCt 2557, 165 LE2d 409) (2006) 
44

(“[T]he right to counsel of choice does not extend to defendants who 

require counsel to be appointed for them.” (citations omitted)). 

Similarly, reliance on public funding for defense resources 

results in the State taking responsibility for selection and 

engagement of those resources. See Ake, 470 U. S. at 83 (III) (A) 

(noting that states have discretion with regard to how to provide 

counsel and expert assistance to indigent defendants). Provided the 

State’s indigent defense system satisfies constitutional 

requirements relative to the rights to counsel and due process, the 

State is allowed to manage an indigent defendant’s access to publicly 

funded legal representation and defense resources according to its 

own preferences and priorities. See id. The State must, at least, 

retain this same discretion when an indigent defendant has elected 

to use the services of private legal counsel. That is to say, an indigent 

defendant who secures free, substantially discounted, or third-party 

funded private representation cannot thereby obtain more rights 

over the selection, management, and funding of ancillary defense 
45

resources than a defendant being represented by state-appointed 

counsel.

In this case, Duke questions the constitutionality of the

indigent-defense statutes enacted by the General Assembly. Of 

course, the Georgia Constitution vests “[t]he legislative power of the 

state” in the General Assembly, Ga. Const. of 1983, Art. III, Sec. I, 

Par. I, and as we have explained, the lawmaking power of the 

General Assembly is “plenary.” Bryan v. Ga. Public Service Comm., 

238 Ga. 572, 573 (234 SE2d 784) (1977); see also Sears v. State of 

Ga., 232 Ga. 547, 553-554 (3) (208 SE2d 93) (1974) (“The inherent 

powers of our State General Assembly are awesome . . . . [The 

General Assembly] is absolutely unrestricted in its power to 

legislate, so long as it does not undertake to enact measures 

prohibited by the State or Federal Constitution.” (citation omitted)). 

For that reason, when this Court is asked to consider the 

constitutionality of an act of the General Assembly, we begin with a 

strong presumption that it is a proper exercise of the legislative 

power. See Service Employees Int’l Union v. Perdue, 280 Ga. 379, 380 
46

(628 SE2d 589) (2006). This presumption can only be overcome by a 

showing of a “clear and palpable” conflict with either the United 

States Constitution or the Georgia Constitution. (Citation omitted.) 

JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 

490 (2) (712 SE2d 820) (2011). The burden is on the party alleging 

that a statute is unconstitutional to demonstrate as much. See Dee 

v. Sweet, 268 Ga. 346, 348 (1) (489 SE2d 823) (1997).

With respect to the statutory provisions providing for indigent 

legal representation and ancillary defense services, I have concluded 

that the strong presumption of constitutionality has not been 

overcome in this case by a showing of a “clear and palpable” conflict 

with the United States Constitution or the Georgia Constitution. 

Thus, because Duke has not shown that the State of Georgia 

deprived him of access to counsel and indigent defense services 

guaranteed by the United States Constitution or the Georgia 

Constitution, I would affirm. 

Although the State of Georgia is obligated to provide indigent 

legal services, it is not obligated to provide such services on terms 
47

agreeable to the indigent defendant. See Gonzalez-Lopez, 548 U. S. 

at 151 (IV); Ake, 470 U. S. at 83 (III) (A); Lewis, 255 Ga. at 105 (3). 

Where, as here, an indigent defendant has elected to be represented 

by private counsel, the State may — but is not required to — pursue 

a contractual relationship with the defendant’s chosen counsel to 

provide public resources to aid the defense. See OCGA §§ 17-12-5 (b) 

(3) (permitting the Georgia Public Defender Council (“GPDC”) to 

contract with outside consultants to provide indigent defense 

services); 17-12-31 (a) (authorizing circuit public defenders to 

employ attorneys and independent contractors, as resources and 

local law allow, to provide indigent defense services). And Georgia 

law allows circuit public defenders and the GPDC to pursue such 

arrangements with outside attorneys and other professionals not 

employed by their agencies, including attorneys who otherwise 

engage in private law practice. See id; see also OCGA §§ 17-12-2 (8) 

(defining “public defender” as “an attorney who is employed in a 

circuit public defender office or who represents an indigent person 

pursuant to [the Georgia Indigent Defense Act of 2003].”); 17-12-33 
48

(a) (providing that only attorneys who are employed full time by the 

circuit public defender and who are compensated, in whole or in 

part, with state funds are ineligible to engage in the private practice 

of law). However, other than the avoidance of a legal conflict of 

interest, neither constitutional constraints nor state law compels

those agencies to do so.19

Where a defendant has eschewed legal representation by the 

circuit public defender or the GPDC, those agencies do not have any

constitutional or statutory obligation to provide funding for 

ancillary defense services to the defendant, even when he is 

indigent.20 My review of decisions of the Supreme Court of the 

United States and this Court leads me to conclude that the rights to 

counsel and ancillary defense services guaranteed by the Sixth 

 19 The Indigent Defense Act specifically requires the GPDC to enter into 

a contractual agreement with an “attorney who is not employed by the circuit 

public defender office” in the event such attorney is appointed to represent an 

indigent defendant in a case in which the circuit public defender office has a 

conflict of interest. See OCGA § 17-12-22 (b). Such attorneys must meet the 

requirements for training, experience, qualifications, and standards of 

representation established by the GPDC. See OCGA § 17-12-22 (c).

20 I agree with the majority that the participation of pro bono counsel, 

alone, does not impact Duke’s indigency status.
49

Amendment and Fourteenth Amendment to the United States 

Constitution and Article I, Section I, Paragraphs I and XIV of the 

Georgia Constitution of 1983 do not impose such a requirement on 

indigent defense agencies.21 Neither are states prohibited from 

linking indigent legal representation and ancillary services in an 

“all or nothing” option for represented defendants.22 See Ake, 470 U. 

S. at 83 (III) (A) (“Our concern is that the indigent defendant have 

access to a competent psychiatrist for the purpose we have 

 21 The well-reasoned and citation-rich concurrence takes issue with the 

lack of citation to authority for this proposition, but provides no explanation 

for its failure to include authority for the inverse proposition. There is no 

dispute that the right to counsel and the due process right to ancillary defense 

services are prized rights under both the United States Constitution and the 

Georgia Constitution. The question presented is what the State of Georgia 

must do to ensure those rights for indigent defendants. Given the broad 

discretion the decisions of the United States Supreme Court confer on states 

and the absence of any binding authority to the contrary, I conclude that 

packaging of these indigent defense services is not a violation of either the right 

to counsel or the right to due process.

22 My consideration in this respect is limited to represented defendants, 

and I express no view on how such considerations would apply to a selfrepresented defendant. The concurrence suggests a lack of a principled 

distinction in this caveat. On the contrary, my view is that the State could 

provide the ancillary defense services to a self-represented defendant on far 

better, and arguably preferable, terms through a public defender than through 

a private attorney not subject to the state agency’s management. Moreover, the 

competing interests would be demonstrably different for a defendant seeking 

to access these ancillary defense services of the State without accessing Statefunded counsel. No contractual or other special relationship would need to be 

formed to allow such a defendant to be a client or customer of the state agency.
50

discussed, and as in the case of the provision of counsel we leave to 

the State the decision on how to implement this right.”); Lewis, 255 

Ga. at 105 (3) (no violation of due process clauses of the United 

States Constitution or the Georgia Constitution where trial court 

followed local procedure for appointing counsel for indigent 

defendant and there was no showing that counsel was unqualified 

or ineffective). Moreover, as the majority notes in its opinion, OCGA 

§§ 17-12-5 (b) (3) and 17-12-31 (a) clearly contemplate that circuit 

public defenders and the GPDC may make funds available to 

indigent defendants who are not represented by those agencies at 

their discretion, to the extent resources and local law allow. But 

nothing obligates them to do so.23

 23 The concurrence complains that I have provided no support for the 

proposition that the State can make provision of ancillary defense resources 

dependent upon utilization of a public defender. But the concurrence seems 

comfortable with the State conditioning those resources on a requirement that 

the defendant’s self-selected attorneys give up their independence by 

contracting with the State as a precondition to receiving funding for the 

services. Once bound to the State in such a contract, the “private” counsel has 

clearly established a contractual relationship with the State and, for all intents 

and purposes, has become a public defender. 
51

In short, the General Assembly has elected to provide indigent 

legal representation and ancillary defense resources in what 

amounts to a “one stop shop” for indigent defendants. While 

certainly subject to criticism, I do not think this choice by the 

General Assembly violates the United States Constitution or the 

Georgia Constitution. I agree with the majority’s analysis of the 

availability of contractual options for public funding of defense 

resources for indigent defendants not represented by the circuit 

public defender or the GPDC. I also agree with Duke and some of 

our amici that there are a whole host of public policy justifications 

for a State to discharge its constitutional obligations regarding 

indigent defense with greater flexibility than the system currently 

in place in Georgia requires. But the General Assembly makes that 

policy choice in Georgia, and its choice controls as long as it complies 

with the applicable constitutional standards. See Ake, 470 U. S. at 

83 (III) (A); Sears, 232 Ga. at 553-554 (3).

The Georgia model provides that in cases like this where an 

indigent defendant has chosen private representation, such counsel 
52

may be brought under the umbrella of either the circuit public 

defender or the GPDC, respectively, for purposes of the specific 

contract-covered case. To utilize public resources for the defense, 

such counsel must contract in some way with the relevant indigent 

defense agency on terms agreeable to the agency. Once subject to 

such a contract, the private counsel is essentially converted to a 

public defender for purposes of the case covered by the contract. 

Absent such arrangement, public funds are simply not available to 

an indigent defendant in Georgia who is represented by private 

counsel of his choice. Stated differently, Georgia requires indigent 

defendants seeking the benefit of public resources for their defense 

to either use a single system (which may include a private attorney 

contracting with the State) or venture forth on their own.24 Duke 

 24 The concurrence complains about the lack of a limiting principle for 

my analysis of this issue and suggests that my view opens the door for the 

State to coerce or force the defendant into making other concessions or difficult 

choices. But the link here is, obviously, the State action required to directly

fund indigent defense. The State is obligated to satisfy a defendant’s right to 

counsel and the right to ancillary defense services even though these rights 

spring from different provisions of the United States Constitution and the 

Georgia Constitution. The difference between the State saying it will provide 

indigent defense services (whether legal or ancillary) in a single package and 
53

identifies this as a difficult Hobson’s choice, and I wholeheartedly 

agree that there is potential for a difficult choice. I simply do not 

think it is an unconstitutional choice.

The record in this case makes clear that Duke, through his 

private counsel, has not yet elected to pursue a contractual 

relationship with either the circuit public defender or the GPDC 

through which Duke could receive public funds to assist his private 

counsel in his defense. Such a path seems worthy of exploration, but 

I do not believe it to be constitutionally required, either on the part 

of his counsel or the relevant State agencies.25 Even were Duke to 

 

the State predicating the provision of defense resources on a defendant’s 

waiver of search and seizure protections seems plain to me.

25 The Court appears to avoid deciding the constitutional questions 

presented here by sending the case back to compel Duke to pursue an available 

statutory remedy. That is an understandable choice. But, in doing so, I believe 

we send mixed messages to the circuit public defender, the GPDC, and the trial 

court. I fear the message of our opinion will be that either the circuit public 

defender, the GPDC, or both, are obligated to enter into a contract with Duke’s 

private attorneys. But, it is not so. Inevitably, there will be counsel and other 

professionals with whom circuit public defenders and the GPDC would rather 

not be affiliated or who fail or refuse to meet the contracting requirements of

those agencies providing indigent defense services. Then we will be called upon 

to decide this question as well as how much the State is constitutionally 

required to give in contractual negotiations with outside service providers. But 

the General Assembly has already made that determination. The State may

give if it is so inclined, but is not required to meet the demands of an indigent 
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make such efforts through his counsel at some point in this case, I 

see no constitutional requirement compelling those agencies to 

agree to a contract with Duke’s private counsel. And absent such 

contract, the agencies are not compelled to provide Duke with any 

funding for ancillary services so long as he continues to be 

represented by private counsel unaffiliated with a state indigent 

defense agency.

For these reasons, I would affirm the judgment of the trial 

court. Thus, I respectfully dissent.

 

defendant who has elected not to be represented by an attorney employed by 

the relevant agency. I read the cases as requiring the State to provide 

reasonable access to competent services in the manner it deems appropriate. 

While I may not have constructed this model if I was the policy maker, I view 

it as discharging the obligations identified in the case law.