Ashleigh Merchant, The Merchant Law Firm, Atlanta. (Photo: John Disney/ALM)

The Georgia Supreme Court decided on Thursday to hear a pretrial appeal over whether the state should pay for experts and investigators hired by the private attorneys who agreed to provide pro bono defense in the case of a man accused of murdering teacher and beauty queen Tara Grinstead 15 years ago.

In an unsigned order, the court granted Ryan Duke's application for interlocutory appeal:

"The Court is particularly concerned with the following: 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?"

The justices set deadlines for notice of appeal and briefing on the question.

"We are very pleased that the Supreme Court agreed that this issue was so important that it needed to be heard prior to trial," Ashleigh Merchant of the Merchant Law Firm in Marietta said. The Merchant Firm is defending Ryan Duke pro bono, along with John Gibbs of Troutman Sanders.

On the other side is Tifton Judicial Circuit District Attorney C. Paul Bowden. He could not be reached for comment.

"This is an issue that affects our entire state and all indigent defendants' ability to receive a fair trial," Merchant said. "This is also important to the legal community because the inability to obtain experts and other ancillary services that are necessary for a fair trial serves as a limit on attorneys' ability to accept pro bono or 'low bono' work."

It's the second try. The high court considered, then dismissed, an application for appeal on the same question last June.

"So after we lost that case, we renewed our motions in the trial court and—based on comments that the Supreme Court felt this was important and needed to be heard pretrial—the judge re-entered (and re-denied) our original motions and this time granted a certificate of immediate review," Merchant said.

Duke dismissed his public defender to hire the Merchant Firm when they offered to take his case pro bono.

"Our indigent defense system needs attorneys to be willing to accept pro bono or low bono legal representation of criminal defendants," Merchant said, noting an "already overburdened public defender system."

Although he still has not been tried, this will not be the first time Duke's case has gone before the Supreme Court. The justices heard oral arguments in October 2017 over a gag order imposed on lawyers, police and even witnesses by then-Irwin County Superior Court Judge Melanie Cross, who has since stepped down. The case is now before Tifton Judicial Circuit Chief Judge William Reinhardt II.

"We're here today because of that rarest of judicial remedies—a gag order," S. Derek Bauer of Baker & Hostetler, representing WXIA 11 Alive TV in Atlanta and WXIA TV in Macon, told the court at that time, during a special session at the University of Georgia law school in Athens. While the U.S. Supreme Court has always "left open the possibility" of the need to restrict communications to protect the right to a fair trial, it was always meant as a "remedy of last resort," Bauer said.

"Protection from prior restraint is a primary guarantee of the Constitution," Bauer said then. "Our way of life doesn't allow the government to say you cannot speak on these topics."

Bauer won. But that appeal delayed the case for two years.

Then, just as the trial was starting, this new appeal put the brakes on again.

Duke was arrested in 2017 and charged in the mysterious disappearance of Grinstead—the high school history teacher, Miss Tifton and Miss Georgia contestant from 2005. After helping out at the Miss Georgia Sweet Potato Pageant and attending a cookout at the family home of a former school superintendent, she headed back to her neat, white wood frame house in the small town of Ocilla and was never seen again.