Seaton: More Hollow Promises For Tennessee’s Indigent Defense Waltz

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.

—My statement to the Tennessee Indigent Defense Task Force on May 20, 2016.

If you ask just about any current member of the General Assembly, they will tell you that the annual appropriation to fund indigent defense representation programs is among the least popular appropriation they make every year. In fact, many legislators lean toward cutting this appropriation…I mention this only to help you understand that there is no chance…that the General Assembly will agree to appropriate more money to fund the current system. Thus, any proposal to increase the current appropriation…to represent indigent criminal defendants is and will continue to be dead on arrival.

—Task Force Chairman William Koch, Letter, February 10, 2016. (Emphasis mine)

Tennessee continues its waltz around indigent defense funding with more ham-fisted “recommendations” that do nothing to solve a key problem. Lawyers with experience are turning from indigent representation in droves, and no “recommendations” from the Volunteer State’s Supremes can fix that.

The latest illusion crafted by Tennessee’s Supreme Court is an increase in compensation for private attorneys handling indigent defense cases to $65 an hour and raising the felony cap to $1,500. It’s no surprise public defenders, those with little to gain under current proposals, are calling bullshit.

Last week, the state’s high court weighed in with a release supporting the task force’s work and resulting report. The court said it would change its own rules to boost hourly pay for private lawyers handling court-appointed cases to $65 and raise the maximum total pay per felony criminal case to $1,500. But the court has no power to fund that increase and must instead look to state legislators and Gov. Bill Haslam.

[Knox County Public Defender Mark] 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.”

Stephens isn’t wrong in his assertion. When any attorney is guaranteed pay for only twenty-three hours of work on a felony case, it is incentivizing them to do less. Lawyers are charged to zealously advocate for their client’s best interests, but they have to eat and pay bills too. Working for less than a full day to finish a felony with payment means more attorneys will be inclined to cut corners and move to the next case.

It’s also worth noting that every new recommendation carries no more weight than “Tennessee’s Supreme Court said so.” Almost three years have elapsed since the High Court acknowledged a problem with Tennessee’s indigent defense system and no meaningful changes have actually occurred.

That lack of change is reflected in the quote from Chairman Koch’s letter to me in February, 2016. Its words, which he would later regret, ring with a somber truth. The problem isn’t the good intentions and tummy rubs of the Task Force or the Supreme Court. It’s the folks in the General Assembly who want to keep their jobs by appearing “tough on crime.”

So the dance begins again, with different recommendations from the last tune and no actual incentive to the General Assembly to honor the new empty promises. Can Tennessee finally wake up and realize the lauded Indigent Defense Task Force was a sham?

As long as the Task Force keeps up with its press releases, and the state Supreme Court nods their head in approval, most Tennesseans will remain satisfied with the work their taxpayer dollars fund. Unless you’ve been through the system and faced the massive resources of the State that compel you to give up and plead guilty, there’s no reason for you to care.

Meanwhile, the Task Force members get to pat themselves on the back for all the hard work they did listening to complaints of underfunded public defenders and uncompensated members of the private bar. Each new press release with more recommendations and praise from the current Justices on the state Supreme Court gives more credence to their aura of respectability, the illusion that they have any teeth to enact meaningful reform.

When those recommendations reach the General Assembly, the state legislators collectively stick fingers in their ears and go “NA NA NA I CAN’T HEAR YOU.” It’s the easier route, allowing them to appease constituents by allowing Sunday wine sales and criminalizing talking on cellphones in school zones.

There was never a desire to actually fix indigent defense in Tennessee. Doing so in an effective way requires spending money. The Legislature knew that back in 2015 when they paid people with no skin in the game to address the State’s indigent defense problems. They know it today, because three years’ worth of study, listening and recommendations produced no change whatsoever.

Enough with the recommendations. It’s time for apologies. The Task Force and the state Supreme Court need a new tour. An apology tour, where they admit to the public what they really wanted was a way to make it look like they cared without actually spending real money. Where they apologize to every Tennessean whose tax dollars they squandered to hear public defenders lament taking cases to trial. Admitting it was the equivalent of “bringing a plastic fork to a gun fight.”

The Task Force and the General Assembly failed the people of Tennessee by throwing money at a problem with a mandate to make sure no extra funds were allocated for indigent defense. Enough with the recommendations. It’s time for “we’re sorry.”

17 thoughts on “Seaton: More Hollow Promises For Tennessee’s Indigent Defense Waltz

  1. Richard Kopf

    I feel a real kinship with Tennessee. After all, in July 1925, William Jennings Bryan went out of Lincoln, Nebraska where I live to prosecute a Tennessee devil who taught his students about evolution. Billy successfully argued that men were not monkeys

    With the foregoing in mind, I have a question. Why are Volunteer State CDLs expected to perform like organ grinder monkeys working for peanuts?*

    All the best.

    RGK

    * Or as Billy once said, “you shall not crucify [CDLs] upon a cross of gold.”

  2. CLS

    Judge:

    The answer is harsh but simple. The General Assembly and the Administrative Office of the Courts (the bureaucratic arm of the Tennessee Supremes) operate under the assumption that if there’s enough hungry attorneys out there looking for work they’ll take whatever they can get, be paid for their work, and like it.

    And the state can look the other way because each year newly minted lawyers start looking for work once they’re sworn in. If you don’t have an offer from a firm coming out of school the first way to start getting paid for your shiny new law license is to take indigent defense cases.

    Consider the scruffy little city I call home, Knoxville. Right now there’s about three thousand practicing attorneys in the city and new lawyers coming out of two law schools every year. Unless you’ve got connections with a big firm or a job offer from an existing practice, really your only option is to go solo and start taking indigent defense cases.

    So you go introduce yourself to judges and their assistants. They put your name on a list. If you happen to be one of the lucky ones in court when the Public Defender conflicts out on a Defendant, there’s a chance the judge will look at you and say “Mr. Seaton, are you interested in this case?”

    Then in a bizarre twist, you say “Yes, Your Honor.” You’ve got a new client with the State of Tennessee footing the bill. And as Dean Strang (Stephen Avery’s attorney in the Netflix series “Making a Murderer”) told Forbes, in some cases you end up kicking a portion of your fee to the State that’s prosecuting your client.

    Meanwhile the client doesn’t know their attorney is fresh out of law school, bright eyed and lacking any trial experience. As Dean Martin once said, “Ain’t that a kick in the head?”

  3. Gloria Wolk

    That describes too many appointed private attorneys in federal court. Sole practitioners who depend on court referrals to pay their bills, who learn nothing after passing the bar because they are busy scrambling to earn a living and have no mentor, no devil’s advocate to test their ideas or strategy . . . . I think it’s a leading cause of wrongful convictions.

    1. CLS

      Whether it’s a “leading cause” of wrongful convictions is uncertain. And Federal Court isn’t the issue here, though the pay is better than what Tennessee doles out for its state defendants.

      It does incentivize the attorney to work less, and it does cast the idea that anyone can handle a felony in 23 hours. Trial lawyering is hard, from establishing rapport with your client all the way to the jury verdict. Thinking that anyone can do it is asinine, and asking for cases to end in a tidy day’s work to get paid does no justice to the citizens in Tennessee charged with a crime.

  4. Richard Kopf

    CLS,

    Tennesse license plates should be changed to proudly proclaim: “The Volunteer State–Where If You Can’t Afford Justice You Don’t Deserve It.”

    All the best.

    RGK

    1. CLS

      Judge:

      I’m strangely comfortable with that idea. Or we could simplify it to “Your attorney is a Volunteer.”

      1. PseudonymousKid

        Ties must be made with the slogan immediately. Cosmic justice, and greed, demands it.

  5. Christenson

    Seems to me that the *just* solution to indigent defense is that if they can’t fund the indigent defense, they should spring the accused.

    Or maybe they should be more transparent: What does it cost to fund the prosecuting apparatus (cops, labs, district attorneys) compared to the defense? or fund an hour of defense attorney for every hour of DA work.

    1. CLS

      In an effort to at least illuminate Christenson on his generic comment, I will say this:

      Tennessee’s facing a crisis the likes of what happened in April of 2016 in Orleans Parish, Louisiana where Derwyn Bunton Jr, the Chief Public Defender, announced his office would no longer take cases because the volume of defendants was too much for his office to handle. This caused a judge, Arthur Hunter Jr. of the Louisiana Criminal District Court to release seven defendants from jail with charges ranging from rape to armed robbery. Judge Hunter’s rationale was the following:

      “The defendant’s constitutional rights are not contingent upon budget demands…and the failure of the legislature to adequately fund indigent defense.”

      At least one PD’s office in the state has followed Derwyn Bunton Jr,’s suit and stopped taking cases. What happens when others take the same action?

      And there’s already transparency. The Volunteer State allocates around $36 million for the entire state’s Indigent Defense Fund each year. Back in 2014, Knox County (my little corner of the world), designated over $77 million in the name of “public safety.” If one county can spend over double what the entire state gets for indigent defense, who do you think’s getting the better deal?

      This is why the issue of adequately funding indigent defense is so important. You have overworked public defenders’ offices admitting no one could get effective representation for the amount of time and money they can spend on each case while the State gives immense resources to make sure you plead guilty. And the private Bar attorneys taking the overflow get shafted in a system that actually kicks a little back to the State that’s prosecuting their clients.

      1. Christenson

        So if I have you correctly, i need a spare hundred grand or so for a *reasonable* defense? I’m waiting for the indigent defense bar to bring up this huge disparity and point out that even with SHG himself defending, it isn’t constitutionally adequate, especially not with the prosecution “science” labs doing junk science like bite marks or just plain fake drug tests.

        I liked what the new Philadelphia DA said to his staff, in effect: You are gonna spend a lot of the poeple’s money — make sure it counts for something, and small time drugs isn’t it.

        1. SHG

          While it’s bizarrely unclear how you pulled “i need a spare hundred grand or so for a *reasonable* defense” out of Chris’ reply, it’s not important. One of the things we don’t do is here is reduce intransigent complex problems into grossly simplistic conflations of baseless assumptions ignorance and empty platitudes.

          I was too kind to allow your initial comment, which fell below reddit quality “thought,” post here. That was my mistake. Everyone is stupider for having read your comment. It’s my fault for allowing it, not your fault for being incapable of any better. Mea culpa. Now it’s done.

    1. CLS

      Anyone with a keyboard can make a press release. It doesn’t make it valid. Behold:

      **FOR IMMEDIATE RELEASE**

      Tennessee’s Indigent Defense Task Force is a sham. Its ranks are filled with people whose mothers are hamsters and fathers smell of alderberries.

      For inquiries, contact the Spanish Inquisition.

  6. Dudeman

    I didn’t know that accepting public defender cases in Tennessee was so lucrative. In Wisconsin, the public defender appointed rate is $40 per hour ($25 for out-of-county travel). The rate was last changed in 1995ish when it was reduced from $50 per hour. Both parties have at times controlled the legislature with that party in the governor’s mansion. It comes down to a lack of political will, which is shameful.
    As to a dollar amount cap, a three day trial burns up 23 hours.

    1. SHG

      Reminds me of sitting in the pediatric waiting room, where parents would listen to another parent tell of their child’s dreaded illness only so they could top the story with their own child’s misery.

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