Panel says defense of boys not state's job

JONESBORO — The state's public defense attorneys say it's not their place to defend the two Westside Middle School shooters in an forthcoming civil trial.

Besides, leaders of the Public Defender Commission say, they can't afford the expense.

Craighead County officials say its public defenders budget can't handle the financial burden either.

The parents of Andrew Golden and Mitchell Johnson say the cost is too much for any middle-class family to absorb.

So, who will pay? Who, if anyone, should pay?

The issue of financial burden has been tossed around like a hot potato for almost four months, with no party anxious to foot the bill.

Craighead County Circuit Judge David Burnett has wavered as well. In July, he said the commission would have to cover defense costs. Then, in August, he decided that Craighead County should pay.

On Tuesday, he put the burden back on the commission.

"I've said this before, but this could set a precedent if we have to pay for it," Didi Sallings, executive director of the state's Public Defender Commission, said. "We could end up having to pay for every kid being sued."

Attorneys for the Public Defender Commission will ask Burnett to change his mind one more time. If Burnett rejects their pleas, Sallings said the commission may appeal.

Sallings has said defense costs in the civil trial of Johnson, 15, and Andrew, 13, could reach $500,000.

The boys shot at students and teachers at the Westside Middle School, killing five and wounding 10 others March 24, 1998. The families of the five who were killed have sued the two boys, their parents, Doug Golden, who is Andrew's grandfather, and two gun companies.

Craighead officials say the lawsuit against Johnson and Andrew has no connection to the county.

"Those two are not even in our custody. We had nothing to do with them once they left the [Craighead County] jail," Craighead County Judge Dale Haas said Thursday.

If the state doesn't pay, Sallings concedes that she's not sure who should. Maybe, she said, no one should.

"The real question is whether they are entitled to counsel," Sallings said. "There are all kinds of folks in the Department of Correction who have been sued and received default judgments because they can't afford attorneys."

Default judgments are those in which a defendant pays a settlement if and when he earns money.

Haas suggested an idea similar to the default judgment -- bill the two boys for monetary damages and garnish their wages after they are released from custody.

"When they get out, they can work it off," he said. "If people didn't like it, at least it would cut out a lot of frivolous lawsuits."

Sallings said she expects her attorneys to cite Gideon v. Wainwright to convince Burnett to change his ruling. The case led to a 1963 U.S. Supreme Court decision that defined who should be afforded legal counsel.

The case revolved around Clarence Gideon, a Florida man who broke into a pool hall. Gideon claimed he was indigent, but the court denied him counsel because he wasn't charged with a capital offense.

Gideon acted as his own attorney, but lost and was sentenced to five years in prison. He appealed and lost. The U.S. Supreme Court on March 18, 1963, overturned the lower courts' rulings and said he should have been appointed an attorney.

Sallings said the case applied to criminal cases because Gideon's liberty was at stake.

"This guy was going to jail," she said. "He should have all right to counsel."

Sallings said civil matters revolve around monetary judgments, not jail time. "It's money," she said of the Westside civil case. "I know symbolically it's a whole lot more. But it's not the loss of liberty."

In his first ruling, Burnett noted Arkansas Code 14-21-102 which allows for "representation in civil and criminal matters of persons deemed incompetent by the court due to minority or mental incapacity..."

Because Andrew and Johnson are youthful offenders, they are considered under civil law to be incompetent and indigent. Therefore, the law reads, the state is required to provide them with counsel.

The parents of Johnson say they're not sure who should pay for the boys' defense. They just know they can't.

Johnson's mother, Gretchen Woodard, doesn't work. Her husband, Terry Woodard, does, but doesn't earn enough to hire attorneys.

They live in a mobile home about a mile from the Westside school campus.

"I'd give the shirt off my back to help anyone," Gretchen Woodard said. "But surely, we can't pay for an attorney."

The lawsuit seeks damages and a provision preventing the boys or their families from profiting from the shootings through the sale of book deals, magazine articles or movie deals.

The suit also states two gun companies were negligent when they didn't provide trigger-locking devices for the weapons used in the shootings.

The two boys were found guilty of five counts of capital murder and 10 counts of first degree battery during a juvenile criminal hearing on Aug. 11, 1998.

Craighead County public defenders Val Price and Bill Howard represented the boys during that hearing because the families could not afford attorneys.

Golden and Johnson are incarcerated at the Youth Services Division youth-offender facility at Alexander. They won't be released from custody until they both turn 21.

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