Is This the Worst Place to Be Poor and Charged with a Federal Crime?

In early August, a forty-one-year-old man whom I’ll call Albert—he asked me not to use his real name—was released from a medium-security prison in South Carolina. Albert grew up in Statesboro, in the southeastern corner of Georgia. His mother struggled with a drug addiction, and he didn’t have a good relationship with his father; his grandmother raised him. He made it to the tenth grade before dropping out of school. Eventually, he became a small-time drug dealer. In 2009, when he was in his late twenties, the Bureau of Alcohol, Tobacco, Firearms and Explosives set up a phony store in his home town that ostensibly sold legal goods but actually existed to solicit guns and drugs from unsuspecting dealers. The bureau called the sting Operation Statesboro Blues. Sixty-seven people were arrested and charged with federal crimes. Most of them, like Albert, were young Black men.

Albert was charged in federal court, in the Southern District of Georgia, with multiple counts of possessing and dealing guns and drugs. He could not afford an attorney. In many places in the United States, the first option for legal counsel for someone in Albert’s situation would be a federal defender, someone who works full time for the government or a nonprofit representing indigent clients facing federal charges—in an office that, ideally, has the resources to fund a vigorous defense. But the Southern District of Georgia is one of three judicial districts, out of ninety-four, that do not have a defenders’ office. (The District of the Northern Mariana Islands is not eligible for such an office; the Eastern District of Kentucky also does not have one.) What it does have, in common with all federal districts, is a panel of private attorneys who can be appointed by the court to represent someone like Albert. But, while other districts maintain strict standards for membership on their panels—experience in criminal litigation, enrollment in continuing legal-education courses—Georgia’s Southern District, for a long time, required anyone who practiced law in the area to be available for appointment. Several people told me that lawyers were appointed to criminal cases almost willy-nilly. “It did not matter if you knew what you were doing or not,” Christina Hunt, the executive director of the defenders’ organization in Georgia’s Middle District, said. “Whether you practiced bankruptcy law or real-estate law. It just kind of went on a rotating basis: ‘Who hasn’t got a case? Oh, this guy. Let’s get him one.’ ”

Albert’s court-appointed lawyer was a man named Matthew Marvin Wathen. “Every question I asked him, he knew nothing,” Albert said, of Wathen. “He just kept telling me, ‘Hey, they just appointed me to you. I don’t even know your case.’ ” Albert, who speaks with a quiet directness, added, “I kept asking questions, questions. He was writing on a pad. He said he’d come back. The only other time I saw him was at my sentencing.” The judge, a Carter appointee named B. Avant Edenfield, deemed Albert an “armed career criminal,” on account of his previous drug and burglary convictions, and gave him fifteen years. At that point, there was little Albert could do: although he did not know it, pleading guilty had severely limited his right to legal counsel if he wished to challenge his sentence.

Last year, the United States Sentencing Commission released a report on federal sentencing practices from 2005 to 2017, dividing the years into three different periods to reflect changes in sentencing guidelines. The Southern District had some of the highest sentencing averages in the country, exceeding the Middle and Northern Districts of Georgia in nearly every criminal category. The report found that sentencing disparities had increased since 2012, when a similar study was done. David Patton, who serves as the federal defender in the Southern and Eastern Districts of New York, and who has written extensively on the need for independence in federal public defense, urged caution when evaluating such data. “As someone who’s given a lot of thought about how to judge attorney performance, I’ve not found a useful way to use data to make those assessments,” he told me. “This is something that’s vexed the profession, generally,” he added. (The court, when presented with these statistics, also maintained that there were factors other than the quality of defense that played a role.) Nonetheless, Patton said that all districts should have a defender program: “I have a very strong belief that the level of practice is much higher when you have a well-run defender office in the district.”

The level of practice in Albert’s case does not seem to have been very high. His lawyer, Matthew Wathen, was admitted to the Georgia bar in 2005. He then helped start a firm in Savannah with four partners, including an attorney named Amit Navare. The other founders in the firm mainly took on criminal cases, Navare told me, but they recruited Wathen because his professed specialty was civil matters—specifically, personal-injury and business law, which could generate more revenue for the firm. Wathen quickly revealed two other specialties: sloth and theft. “He didn’t really give a damn,” Navare said. “I don’t think he was ever geared toward actually helping the client. It was always, How can I make more money?” Two years before he was appointed to be Albert’s defense attorney, Wathen represented a client who’d been in an automobile accident. Without his client’s authorization or the knowledge of the firm, he settled with the insurance company for $2,250, and used the money for personal expenses. Navare found out and confronted him. “He conjured up fake child-support documents—cut-and-pasted stuff—to make it look like all of the money he got was garnished,” Navare said. Navare and one of his partners shared what they knew with the Georgia Bar Association, and, in January, 2012, Wathen was disbarred.

Wathen ended up in Mississippi, working for the U.S. Geological Survey. “He actually put my partner down as an employment reference,” Navare told me. “I was sitting right there when the federal government called. They were, like, ‘Do you know this guy?’ My partner was, like, ‘You realize he got disbarred for stealing, right?’ Apparently, they didn’t care.” In late 2015, Wathen began stealing from the government, and managed to charge nearly thirty thousand dollars in personal expenses to a work credit card before pleading guilty to embezzlement, in 2018. He faced up to ten years in prison. Albert, by this point, had been incarcerated for about that long. But Wathen had committed his crime in a district where the federal defender program exists; his court-appointed lawyer was the assistant federal public defender for the Southern District of Mississippi. Wathen was sentenced to five years of parole along with restitution of the stolen funds. “He’s lucky,” Navare said. “If he was here in the Southern District, he would have actually served time.”

Georgia’s Southern District encompasses forty-three counties and is roughly the size of West Virginia. It takes about four hours to drive its length, from just north of Augusta to the Florida line, and two hours to drive its width, from Dublin to Savannah. It may be the worst place in the country to be a poor person charged with a federal crime.

Until the nineteen-thirties, the right to an attorney, which is enshrined in the Sixth Amendment, was mostly interpreted to mean that anyone who could pay for a lawyer was welcome to hire one. Only in federal death-penalty cases were lawyers typically appointed to those who couldn’t afford them. In 1931, nine boys between the ages of twelve and nineteen, all of them Black, were accused of raping two white women in Scottsboro, Alabama. The boys were tried in two and a half days. Their defense was led by an elderly lawyer who hadn’t practiced in years and a real-estate attorney from Tennessee. They did not interview any witnesses, beyond the accused themselves, or file any motions. Eight of the boys were sentenced to die. “That case really shook us—not unlike the brutal killings of George Floyd and Breonna Taylor,” Jonathan Rapping, a professor of law and the founder of Gideon’s Promise, a nonprofit that provides training and support to public defenders, told me. “It started a bit of a revolution.” Twice, guilty verdicts for the nine boys were successfully appealed to the Supreme Court. In its first ruling, the Court held that competent defense in capital trials was a legal right. Ultimately, charges against four of the boys were dropped; the other five were convicted a third time, even though, by then, one of the alleged victims had said she made up the story. In 1938, the Supreme Court ruled, in a separate case, that the government must provide a lawyer to indigent defendants in all federal criminal trials.

It was another quarter century before the Court expanded that right to criminal trials at the state level, in its ruling in Gideon v. Wainwright, the case of a Florida man who was charged with burglary and was not appointed legal counsel. A year later, in 1964, Congress passed the Criminal Justice Act, which funded the necessary lawyers at the federal level. (Funding at the state level remains extremely uneven.) Judicial districts enlisted local attorneys to form Criminal Justice Act panels, made up of lawyers, typically in private practice, who could represent defendants in federal criminal proceedings. In 1970, Senators Barry Goldwater and Edward Kennedy co-sponsored an amendment to the act to create federal-defender organizations. “The personal freedom of the individual citizen is at stake in these cases, and I want to be sure that his liberty does not become an accidental casualty to the size of his wallet,” Goldwater said. Federal defenders’ offices employ attorneys full time, and have the resources to hire experts and file appeals. But the decision to create such an office in a given district was left up to each district’s judges.

By 1973, fifteen districts had defenders’ offices. Two years later, Theodore Lidz left his job at the Legal Aid Society, in New York, and went to work at the Defender Services Office, in Washington, D.C. Lidz, a spry man who loves to talk and does so with professorial command, had worked in human relations for the Ford Motor Company before taking law-school classes at night and becoming an attorney. By 1982, he was the division chief of Defender Services, and he became a roving ambassador for the program—“a kind of bureaucratic Johnny Appleseed,” he told me, pitching it to districts around the country. Districts could establish either a community defenders organization—a nonprofit with a board of directors and funding from grants—or a federal public defender’s office, with a chief public defender appointed by the circuit court and a budget approved by the Judicial Conference. The former model offered more independence from the judiciary, but Lidz believed that both approaches enabled legal defense of the highest quality.

The earliest adopters of the defenders programs were generally districts with large cities and high caseloads. Georgia’s Southern District actually created a federal public defender office in the late seventies, selecting Robert Jackson Bates Smith, Jr., a former Nixon-appointed U.S. Attorney, to direct the office. Lidz suggested that the office was created as a favor for Smith, who died in 2002; the court told me that the judges, led, in those years, by Anthony Alaimo, another Nixon appointee, hoped to “strengthen the quality of representation” in the Southern District. Lidz maintains that Smith “felt constrained by the judges,” and that their pressure resulted in either an abbreviated second term for Smith, or a shortened first term for his successor.

Smith was replaced by Davis Cohen, a criminal-defense attorney based in Savannah. Cohen said that, after he was appointed, Alaimo called him into his chambers, handed him an undated letter of resignation, and told him that he had to sign it before he would swear him in. “I thought, Well, this is customary,” Cohen told me. “But, later on, I realized that it was not usual and customary with other public defender offices.” He said he didn’t think he would have signed it if he’d had more experience. Later, he recounted the incident to Lidz, who was troubled but not entirely surprised. “It struck me as consistent with other reports I’d heard—that judges there were exerting inappropriate direction, if not outright control, over the Defender office,” Lidz said. (Cohen, who still runs a private practice in the district, told me that Alaimo “never threatened to use” the letter or otherwise pressured him, and said that he didn’t want to malign Alaimo’s “professional standing or his character,” adding that the deceased judge’s “bark was worse than his bite.”)

Soon after Cohen’s appointment, Stephanie Kearns became the federal defender in Georgia’s Northern District, a position she still holds. Kearns, a tireless attorney without patience for foolishness, told me that she met Cohen a few times, and got the impression of a “zealous lawyer, not a rollover.” She recalled a big, multi-defendant case in which Cohen made “a couple motions for mistrial” that “really ticked off the judge.” She added, “He was stepping on toes you didn’t step on.” Cohen’s view was that he did everything for his client that the client would “do for himself if he had a law-school education.” As for the district’s judges back then, Cohen said, “I’m not so sure that they didn’t want somebody that was a little easier.” Cohen learned that the district was planning to close the defenders’ office, and offered to resign, in an effort to keep it open. But the court refused his resignation, and closed the office in 1987. The district’s current chief judge, J. Randal Hall, speaking for the court, told me that the defenders’ office “seemed to deteriorate in its performance after Jackson Smith’s departure,” and that the office was closed because it was “inefficient, redundant, and unnecessary.” Kearns offered a different interpretation. “In their view, I think, Davis was too much of an advocate,” she said, of the judges. “That’s not what they wanted.”