Seaton: Tennessee Supreme Court Fails The Public On Indigent Representation

Tennessee has an indigent representation problem. No less an authority than Justice Sharon Lee knows this. That’s why untold sums of taxpayer dollars were thrown at an “Indigent Representation Task Force,” which rambled across the state listening to aggrieved attorneys and citizens.

That task force, after nearly two years’ work, issued a series of recommendations on how to fix the indigent representation problem. When the recommendations were formally announced, attorneys across the state rejoiced. They were solid, responsible reforms to the current system that would fulfill the mandate of Gideon v. Wainwright. The justice system wouldn’t be a drawn out Tennessee Waltz, it would actually resemble justice.

Current Chief Justice Jeff Bivins understands there are major problems with the current system. He was happy enough to tell the world in a press release on October 3.

The task force confirmed what many of us already suspected: The system needs major [reforms.]

That press release announced the Tennessee Supreme Court’s decision to back certain aspects of the Task Force’s recommendations. Not all of them, but some. Here’s a brief list of what the Tennessee Supreme Court is interested in pushing for reform:

  • Increasing the rate of attorney compensation to $65 per hour.
  • Raising the fee caps on cases by $500 for felonies and $250 for juvenile matters.
  • Establishing an appellate division of the Public Defender’s office to handle appeals.
  • Periodic billing for cases that tend to take longer than most, like Dependency and Neglect cases.
  • Modifications to the state’s Affidavit of Indigency so judges are required to “explain and certify the existence of a conflict” before appointing private counsel.

Such reforms sound nice, if you’ve got the attention span of a gnat and don’t care much for those charged with a crime who cannot pay reasonable attorney fees. Here’s a few things the Tennessee Supreme Court neglected to back in their press release:

  • Establishing a certification process to make sure attorneys seeking court appointments would be qualified based on their training and expertise.
  • Treating driving on a revoked license and failing to pay court fines and fees as civil matters instead of criminal.
  • Overhauling the bail bonding system, including re-evaluating circumstances when defendants should be released on their own recognizance.
  • Creating a “release valve” for attorneys reaching the state mandated 2,000 hour per year mark for indigent representation so defendants wouldn’t be worried about attorneys “giving up” on their case.

Forget the fact the Task Force recommended a raise in compensation rates for private counsel to “no less than $75 per hour, but no more than $125 per hour.” The Task Force recommended fundamental reforms to indigent representation that would cut down time for defendants in court, make sure defendants had competent representation and could rely on their attorney to provide zealous advocacy regardless of the state’s “one size fits all” approach to cases.

No, the Tennessee Supreme Court chose to look the other way when it came to which recommendations it wanted to back. Compensation rates were a non-issue. If the Task Force recommended “no less than $75” per hour, then $65 would be just fine in their eyes. The bail bonding system, which the task force called a “dirty secret” in their report, is a non-issue. And if a cop stops you and finds out you’ve yet to pay your court fines and fees, you’re still going to jail with the Tennessee Supreme Court’s blessing.

The first response to the Tennessee Supremes’ press release came from Lucian Pera, the head of the Tennessee Bar Association. It’s sad to admit the response was completely predictable.

The TBA applauds the Supreme Court’s strong leadership on indigent representation reform. We look forward to partnering with the Court and others interested in making real improvement on the status quo.

In response to Pera’s remarks, a lawyer on a TBA listerv had the following to say: “We’re applauding? This TBA member isn’t applauding.”

Those words are telling. While Pera might be applauding, those of us in the trenches without a cushy job in Nashville aren’t. We see the Tennessee Supreme Court’s “backing” for what it is: nothing more than a mealy-mouthed attempt to spoon feed Tennessee’s legislature towards a modicum of reform. Not the reform the system needs, but the reform the Tennessee Supremes think will best suit the tastes of the General Assembly.

When the Listening Tour came to Knoxville, I came prepared with a statement the Task Force eventually understood. Sadly, the Tennessee Supremes did not heed my warning.

Adherence to the Constitution requires adequate funding. It isn’t satisfied by pretending to care. Either you will honor the Constitution by funding indigent defense, or you will fail the people of this State, but you will no longer trick them by putting on a show.

The curtain has been lifted. That show has been exposed for the fraud it was. And sadly, five Justices who should know the law, who should take a keen interest in adhering to the Constitution, failed the Volunteer State.

12 comments on “Seaton: Tennessee Supreme Court Fails The Public On Indigent Representation

  1. B. McLeod

    Whenever something is substantially wrong, and has been for a long time, it is because someone with influence is vested in that wrongness, and benefits from it (or at least believes that to be the case).

    Reply
    1. CLS

      Those parties would be the General Assembly, who counts in their ranks a member who thinks attorneys should be compensated at $20 per hour for indigent defense because “attorneys are always begging for work…we can keep churning them out at law schools and they’ll take peanuts for their time.”

      The other guilty party is the Administrative Office of the Courts, who once had a staff administrator say on the 50th anniversary of Gideon to a room full of attorneys who worked indigent representation “If it were up to me you’d all be grateful to get $20 per hour.”

      Reply
  2. John Barlycorn.

    I guess it is somehow all still remains legitimate as long as the Tennessee Supremes, along with other Supremes across the nation, can keep ignoring their own “reflections” staring back at them from the abyss.

    But next time, I would put the scared shitless looking kid, in the reflection of your shades, in polished stainless steel cuffs to see if that makes any difference.

    null

    Reply
    1. CLS

      Huh. I’d never noticed the kid in that photo before.
      Maybe someone with mad photoshop skillz can fit the kid with a set of metal bracelets?

      Reply
  3. Richard Kopf

    Chris,

    You were once termed “an angry good ol’ boy” by our host when he “crossed” you on Fault Lines. It was both a well-deserved compliment and an apt description. Stay thirsty (and angry) my friend.

    With enormous respect, and wishing you all the best,

    RGK

    * PS the story of neutering Hitler the cat brought tears (of laughter) to my eyes. But that’s probably a post for another day.

    Reply
    1. CLS

      Judge:

      I’m a little less angry these days, thanks largely to my work helping Hitler the cat from ever breeding again.
      But I still keep a fire lit for justice, and when the Tennessee Supremes got my red up it did evoke the “Angry Good Ol’ Boy” in me.

      And your respect means more than I can say.

      Reply
  4. Sgt. Schultz

    You fought the good fight, Chris. It may not have worked out as it should, though it’s not over yet, but you should be proud of yourself. Without someone like you, there wouldn’t have even been a fight.

    Reply
    1. CLS

      Sarge:

      The fight isn’t over, and this redneck isn’t done fighting for what’s right.
      I would point you to a noted legal scholar and sage named Roger Alan Wade who penned a song called “If you’re going to be dumb you gotta be tough.”

      I may be dumb, but i’m tough enough to weather the TBA, the Tennessee Supremes, and other’s critiques while I fight for meaningful indigent reform.

      Reply
    1. CLS

      I suspect as much. Tennessee’s various associations have hemmed and hawed about indigent defense reform for years and accomplished nothing.

      Sadly, it’s telling that one lone attorney calling bullshit with some help from his friends was able to accomplish what the TBA couldn’t.

      Reply
  5. Billy Bob

    Let me see if I got this straight: It’s a crime to be indigent in the Volunteer State (of Mind). How is anyone to make money if everyone is volunteering? Perhaps we should start calling it the Indigent State!
    Finally, volunteerism is to Tennessee as constitutionality is to the Constitution State of CONnecticut. Conundrums and enigmas abound. I.e., indigent defense folks should be volunteering their services, no? Why couldn’t Justice Bivins just say so!

    Why do they call New York the Empire State? Oh, now I get it! Our Fearless Leader could not have come from any place other than New York. If he had grown up in TN, he’d be nothing more than a PD schlep, trust it, orange hair and all. Notice, we did not say “red neck” once?

    Reply
    1. CLS

      It’s long been a crime to be indigent in a state where most residents are at or below the poverty level.
      Chief Justice Bivins essentially said in his press release that those of us who represent indigent defendants should volunteer and like it.
      Finally, this proud redneck isn’t ashamed of being called a redneck.

      Reply

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