Task force pushes for change in representing the poor

Fifty-four years after the nation’s highest court ruled an accused citizen should not stand alone against a well-funded government bent on taking away liberty and even life, a task force has reached an unpalatable conclusion – justice is too often measured in Tennessee’s courtrooms by the size of one’s wallet.

A task force appointed by the Tennessee Supreme Court at the behest of then-Chief Justice Sharon Lee released its findings Monday on the state of the state’s system of providing attorneys for those unable to shell out thousands of dollars in legal fees for such things as representation in criminal cases and the protection of both children’s and parents’ rights in juvenile court proceedings.

“What we are talking about are programs designed to protect the liberties of people from inappropriate interference by the government,” said former Tennessee Supreme Court Justice William C. Koch Jr., who served as chairman of the Indigent Representation Task Force.

Knoxville attorney Stephen Ross Johnson, a leader in both state and national associations of criminal defense lawyers, was even more pointed in his assessment of the current system of providing court-appointed counsel for the poor in Tennessee.

“If you are poor, your lawyer is often overworked and grossly underfunded, and is no match for the power of the state to take away your freedom, your property, and, in some cases, your life,” Johnson said Monday. “In this situation, the integrity of the adversarial system breaks down. For far too long in Tennessee, justice has been lopsided.”

The report recommends sweeping changes. They include:

• Raising the rates for private attorneys who agree to represent the poor from $40-50 per hour to a minimum of $75 and as much as $125 per hour;
• Eliminating caps on how much time a private attorney can spend working on a poor person’s case and still get paid;
• Increasing funding for public defenders whose sole jobs are representing the poor to boost staffing and lower caseloads;
• Creating a training and certification process for new lawyers to ensure they have the legal ability to defend the poor with as much as skill as private attorneys hired by the rich;
• Creating a commission to manage the entirety of the system of providing legal counsel for the poor in all judicial arenas, particularly juvenile court, instead of the piecemeal approach in place now;
• Boosting pay and crafting standards for the use of experts as witnesses

Koch said in an interview with USA TODAY NETWORK-Tennessee that the report, which came after 18 months of “listening tours” and research, will now go to the Tennessee Supreme Court.

“The court will decide which of the recommendations they pursue and how to do it,” Koch said.

Although the high court could carry out some of the recommendations on its own, including raising the rates of pay for court-appointed attorneys, it is the state Legislature that controls the purse strings, so buy-in by both Gov. Bill Haslam’s administration and state legislators is key, the report’s authors noted.

The task force members were careful in the report not to cast blame on the Legislature or the governor’s office for the underfunded indigent representation system.

“The current circumstances are not the result of deliberate indifference on the part of Tennessee’s decision-makers,” the report stated. “Rather, they reflect the dramatic increase in the ratio of cases to the justice system’s capacity during the 20th century.”

In 1963, the U.S. Supreme Court ruled in the case of Clarence Earl Gideon, an accused thief too poor to hire a lawyer, that the U.S. Constitution guarantees citizens the right to an attorney no matter the size of their wallet.

In Tennessee, that ruling has led to a hybrid system in which a separately funded public defender’s office is the primary means through which legal defense is provided the poor while private attorneys are paid on a per-case basis to handle what the public defender’s office cannot.

For a quarter-century, the pay rate for private attorneys – $40 for each hour of work out of court and $50 per hour for court appearances – has remained unchanged as the price of everything else went up.

“Attorneys have to feed their families, too,” said attorney Christopher Seaton, who stopped taking appointed cases because of the low rates.

“Would you want someone representing you in a second-degree murder who would take your whole life in their hands for an IOU for 2,500 bucks?” asked Memphis defense attorney Mike Working. “What kind of lawyer do you think you’d get? You don’t get the money until about six months after the case is over.”

Working, who addressed the task force in Nashville last summer, said few lawyers are doing appointed work besides “brand-new, baby lawyers.”

“We’ve got very compromised candidates, people coming straight out of law school, who don’t even have an office,” he said. “They are meeting clients at coffee shops. They are meeting clients at the library. They are practicing law on their iPhone. Their office is the cloud.”

Because those inexperienced lawyers also faced caps on how much they could be paid on a single case and because public defender’s offices were experiencing burgeoning caseloads and fights for funding, the task force found a system that looks like “an assembly line” of hustling the poor from court to prison. The report said 94 percent of all convictions in state courts "are the result of guilty pleas."

The task force also concluded there is an even great shortage of experienced attorneys willing to handle cases in juvenile court, where children are at risk of being made wards of the state either through their own behavior or abuse and neglect and parents face the loss of their children to the state. Some public defenders offices, like that of Knox County Public Defender Mark Stephens, try to staff juvenile courts, many do not.

There is no shortage of attorneys on the other side – with both criminal prosecutors and state Department of Children’s Services attorneys assigned to juvenile courts in each jurisdiction.

Although the task force’s recommendations, if implemented, will cost money, Koch and the fellow members of the task force argue streamlining the indigent defense system through a single commission and boosting funding for public defenders who can more cheaply defend the poor will save the state money, too.

Knox County’s Stephens has been battling funding woes for more than a decade. He has long argued – and once even mounted a court challenge – the poor suffer when public defenders have only minutes to spend on each case. He’s heartened by the task force report.

"I applaud the call of the Chair and the other members of the Task Force for a fully-funded, independent, accountable system for providing the right to counsel in Tennessee,” Stephens said.

Josh Spickler, executive director of the Memphis-based criminal justice reform group Just City, said the recommendation to appropriate sufficient funds to public defenders offices is key to a "much more efficient, much fairer justice system.

Shelby County Public Defender Stephen Bush said he was "hopeful" the report will drive change.

"Based on the task force report, I’m hopeful Tennessee will finally establish reasonable workload controls that ensure we can meet the minimum ethical obligations that all lawyers owe their clients," Bush said.

Knoxville attorney Mike Whalen, one of the few experienced criminal defense lawyers who still carries a full caseload of court-appointed work, was cautious.

“Both the caps and the rates, the (state) Supreme Court could fix with the stroke of a pen,” Whalen said. “We have ‘cautiously’ discussed this issue for 26 years … It’s a small handful of us who are experienced trial lawyers who will take these cases. God help you if you’re in a smaller county.”