Willie Palmer was convicted of two counts of malice murder and other offenses and was sentenced to death. This Court affirmed the judgments in Palmer v. State , 271 Ga. 234 517 SE2d 502 1999. On petition for writ of habeas corpus, Palmer’s convictions were vacated, and we affirmed, ordering a new trial. Schofield v. Palmer , 279 Ga. 848, 853 3 621 SE2d 726 2005. After inquiry by habeas counsel and by the trial court in 2006, Michael Mears, who was then the director of the Georgia Public Defender Standards Council Council, assured the trial court that counsel would be selected to represent Palmer on retrial and that all attorney’s fees and expenses would be paid by the Council. Mr. Mears asked Michael C. Garrett to represent Palmer and to employ co-counsel, and informed Mr. Garrett that he would be paid out of the Council’s conflict funds. Mr. Garrett agreed and employed J. Randolph Frails as co-counsel. Neither Mr. Garrett nor Mr. Frails Attorneys had previously been involved in Palmer’s defense. During their representation, Attorneys submitted periodic invoices, and the Council eventually denied their requests for funding, stating through its chief legal officer that the Council is not the responsible entity for the compensation for legal services in this case because notice of intent to seek the death penalty was given prior to January 1, 2005. Palmer was again convicted and sentenced to death, and Attorneys submitted a final bill for $68,946.61. On August 24, 2007, the trial court ordered the Council to pay Attorneys’ fees and expenses pursuant to former OCGA § 17-12-127 b, which read as follows: If for any reason the Office of the Georgia Capital Defender is unable to defend any indigent person accused of a capital felony for which the death penalty is being sought, the presiding judge of the superior court in which the case is pending shall appoint an attorney or attorneys to represent the defendant. Counsel appointed pursuant to this subsection shall be paid with state funds appropriated to the Council for use by the Capital Defender. . . . Ga. L. 2003, pp. 191, 217, § 1. This code section was part of Article 6 of Chapter 12 of Title 17. That Article created the Office of the Georgia Capital Defender and became “effective on January 1, 2005.” Former OCGA § 17-12-128 Ga. L. 2003, pp. 191, 217, § 1. We note that Article 6 was repealed in 2008 when the Office was succeeded by the capital defender division of the Council, but comparable provisions are now found in OCGA § § 17-12-12 and 17-12-12.1. Ga. L. 2008, pp. 846, 865-867, 873, § § 26, 27, 42. The trial court held that former OCGA § 17-12-127 b did not expressly exclude reimbursement by the Council where, as here, the defendant was indicted prior to January 1, 2005 and his attorneys were appointed after that date. The Council failed to comply with the August 24, 2007 order, and the trial court entered an order on September 12, 2008 holding the Council in contempt and directing the Council to pay $68,946.61 into the registry of the court pending appeal. The Council appeals pursuant to OCGA § 5-6-34 a 2.
The Council contends that the August 24, 2007 order is void because the County is responsible for payment of Attorneys’ fees and expenses incurred during Palmer’s retrial. Under former OCGA § 17-12-44, which was enacted in 1979, a court was empowered to order a county to pay for legal services for an indigent defendant in a capital felony case. Cits. However, this Code section was only effective until January 1, 2005, following establishment of the Georgia Public Defender Standards Council. Cits.
