If you are a State Supreme Court Justice issuing a press release on which areas of indigent representation reform the state’s highest court intends to back, it’s easy to shrug off calls of “bullshit” from the private bar. When the Public Defenders, the first line of defense for the poor in the state call bullshit, you might want to rethink your stance.
“The devil’s in the details,” Tennessee District Public Defenders Conference Executive Patrick Frogge said in an interview last week. “I’m glad the Supreme Court is taking some actions. The recommendations they’ve made in their press release share a common theme of steering more cases to public defenders. I’m not sure the recommendations carry with them a commiserate increase in the number of public defenders.” (Emphasis added.)
Frogge is correct in his analysis. The Tennessee Supremes want the public defenders’ offices to take on more cases. They don’t want to actually fund those offices or adequately staff them. They want the public defenders to take every case possible.
Mark Stephens, the head of Knox County’s public defender office, cut Chief Justice Bivins’ press release, and the work of the task force, straight to the bone.
“I would think the number one priority would be to adequately address funding for public defenders, and they didn’t do that,” he said. “It’s really about controlling costs. But I didn’t hear that (theme) at these (task force) forums.” (Emphasis added.)
So the Tennessee Supreme Court is really interested in making sure the mandate of Gideon v. Wainwright looks fulfilled while spending as little money as possible? It’s almost as if someone said exactly that during one of the Indigent Representation Task Force’s “Listening Tour” stops.
Mark Stephens has a keen eye on numbers when it comes to indigent defense. During his time at Knoxville’s Listening Tour stop, he informed the members of the Task Force who bothered to show up his staff handled 83 more felonies and 100 more misdemeanors than the nationally recommended maximum caseload. Each case handled by Stephens’ office cost the state a whopping $313 dollars.
“No one could hire an effective lawyer for less than $500, or get an effective defense,” Stephens said.
Following Chief Justice Bivins’ press release, Stephens responded with another statistic. If the funding increases were enacted hypothetically, your court appointed counsel would be paid for less than a day to work your case.
Stephens noted that even if those increases are funded, a lawyer would only be paid for 23 hours of work on a felony case no matter how serious the allegation or complicated the defense work.
“You’re saying any lawyer can handle a felony in 23 hours,” he said. “You’re incentivizing lawyers to do less.”
One can take issue with Stephens’ remarks about incentivizing lawyers to do less, as all of us with a bar card are tasked with the zealous representation of our clients, regardless of how poorly the state thinks we should be compensated. This is about the defendants, and the optics that the Tennessee Supreme Court’s “reforms” send to those charged with crimes.
Imagine for a moment that you’re a defendant charged with first degree murder. After finally proving you are unable to pay reasonable attorney fees, you are introduced to your court-appointed counsel who will be paid for less than 24 hours’ work on your case. Your life rests in this person’s hands, and they will be paid for only twenty-three hours to work on a decision that determines whether you live or die.
How can you place trust in a system like that, where justice is served to the lowest bidder? No, the defendant in that scenario will more likely plead guilty and hope for life plus cancer.
These cries of bullshit from Tennessee Public Defenders’ offices must be heard. If the public defenders get to a point where they legitimately feel they can’t provide adequate representation to indigent defendants, then the Volunteer State could see a statewide recreation of what happened in Orleans Parish, Louisiana. If public defenders’ offices across the state stop accepting cases due to inadequate funding, how can Tennessee’s highest court compel them to do otherwise?
Put aside the words of the private bar. Listen to guys like Patrick Frogge and Mark Stephens, who are in the trenches daily and are Tennessee’s first line of defense when the State charges an indigent citizen with a crime. When those guys say the Volunteer State is in a crisis scenario, the Tennessee Supremes would be wise to listen.
Failure to do so means judges across the state will start recreating the dreaded scenario in Orleans Parish, Louisiana, where those who understand the mandate of Gideon take a stand and utter words similar to Louisiana Judge Arthur Hunter, Jr.:
“The defendants’ constitutional rights are not contingent upon budget demands, waiting lists, and the failure of the legislature to adequately fund indigent defense.”
It’s time for Tennessee’s Supreme Court and the General Assembly to take a stand. Do you want justice and meaningful reform, or will you revert to the “tough on crime” stance that brought the state to this flashpoint? One hopes the former will be the end result, but as a noted legal scholar once said, “Hope is a Virus.”