John and Ashleigh Merchant, The Merchant Law Firm, Atlanta. (Photo: Rebecca Breyer/ALM)

With trial nearly a week away, the volunteer lawyers representing the man accused of killing former beauty queen and schoolteacher Tara Grinstead say they have no money to hire essential experts and that the state agency responsible for indigent defense has declared it cannot legally provide the funding or appoint additional counsel.

In response, the lawyers for Ryan Duke have asked the trial judge to declare the Indigent Defense Act—the law creating the Georgia Public Defender Council—unconstitutional because it does not provide access to adequate assistance for poor defendants who are not represented by public defenders.

Failing that, Duke's pro bono attorneys—John and Ashleigh Merchant with Marietta's Merchant Law Firm and John Gibbs III with Troutman Sanders—on Tuesday asked the Georgia Supreme Court to halt the trial while they seek to have the GPDC or county declared responsible for providing the necessary funding.  

Ashleigh Merchant said the issue is particularly pressing because the key expert whose testimony is being sought specializes in “touch DNA,” which can analyze small amounts of DNA from a few skin cells.

A hearing on the admissibility of such evidence is set for Thursday, but there is so far no funding to pay him, nor has there been time to properly prepare for trial.

“The majority of our time has been tied up with this dual litigation over these funding issues,” Ashleigh Merchant said.

“The expert's lined up and ready to go,” she said.   

Irwin County Superior Court Judge William Reinhardt II denied a defense motion earlier this month that sought to have the GPDC pay for the experts, but he seemed to invite the defense to have the Tifton Circuit PD sign on as co-counsel to access the necessary funding.

The PD office and GPDC declined to comment.

Duke was arrested and charged with Grintead's slaying in 2017. Duke was represented by the office of Tifton Circuit Public Defender John Mobley until September, when the Merchants signed on as pro bono counsel.

Reinhardt turned down Duke's requests in December and February that he order Irwin County or GPDC to provide the funding. In February, Mobley and GPDC Chief Legal Officer Brandon Bullard told the judge that the council does not have the authority to pay for experts in a case in which it does not represent the defendant or to appoint a PD.

In a followup email attached to Duke's pleadings, Bullard told the judge that other courts have been asked to approve funding for indigent defendants who have appointed, non-PD lawyers.

“Those courts have concluded that they can order the government of the county where the indictment was returned to cover those expenses, and I do not see a bar to the court ordering that here,” Bullard wrote.

On March 11, Reinhardt told the lawyers via email that he would deny the request for the county to assume the expense, writing that 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 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.”

Duke's lawyers immediately asked Mobley's office to provide representation, which it declined to do because he already has counsel.

On March 14, Reinhardt entered an order formally denying Duke's request for the funding, writing that, while he “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.”

Reinhardt wrote that Duke “may face a choice between being represented by the Merchants without government-funded experts, or by the GPDC with those resources. Is that an untenable or intolerable choice? Does that mean the mechanism employed by the state of Georgia to ensure the delivery of the right to counsel and critical expert services to indigent defendants is constitutionally flawed? The court decides not.”

Duke's lawyers filed a motion asking permission to appeal to the state Supreme Court, which has jurisdiction over murder cases, but Reinhardt never ruled upon it and the statutory deadline for his decision expired March 25.

“We're scheduled to start picking a jury Monday, and unless the court does something we're going to go to trial and have an unconstitutional trial,” said Ashleigh Merchant. “We don't have any more rabbits in our hat.”    

Neither Mobley nor Bullard responded to requests for comment.

A co-defendant charged with helping conceal Grinstead's murder in 2005, Bo Dukes, was convicted March 21 and sentenced to 25 years in prison in Wilcox County on charges including giving a false statement, hindering the apprehension of a criminal and concealing a death.

Dukes is also facing more charges in Ben Hill County, where he is accused of helping burn Grinstead's body in a pecan orchard.