Mimesis Law
18 February 2019

Tennessee Indigent Defense Task Force Responds (and So Do I)

Feb. 11, 2016 (Mimesis Law) — Back in October of 2015, I wrote an open letter to the Tennessee Indigent Representation Task Force.  In that letter, I offered three suggestions that could be implemented immediately to fix the quality of indigent representation in the Volunteer State, noted the lip service paid to the Tennessee taxpayer with regards to how the Task Force would work, and remarked the panel was made up with people who had absolutely no skin in the game when it came to the day-to-day representation of those who could not afford a reasonable attorney’s fee.  Apparently someone in Nashville has been reading my posts, and decided to respond.

Chairman William G. Koch, Dean of the Nashville School of Law, has acknowledged this is no easy fix. I took Koch to task in October with the following statement:

It’s imperative that Tennessee meet the constitutional obligation owed to all criminal defendants. But, there is also the necessity to do so in the most accountable, efficient, and effective manner possible,” said Koch. “I look forward to undertaking this important task.

Running that statement through the Bullshit-to-Honesty translator produces the following: “We have to make sure we jump through all the hoops so people most at risk of being screwed by the justice system can’t play the “ineffective assistance of counsel” card, but we have to make sure we do it on the cheap.” Good going, Mr. Koch.

This statement prompted Bill Koch to respond in a letter format and a telephone conversation with me concerning the issue. He’s also given me the full authority to reproduce the letter sent to me. I want to address his various comments, both in written and verbal form, as they arrived.

While I was glad to read the Court’s press release amused you, the tenor of your letter reflects great dissatisfaction in the way Tennessee currently provides representation to indigent persons facing criminal prosecution.  I share many of your concerns, as do my colleagues on the Task Force despite your apparent low opinion of their qualifications.

Bill, let’s get this out of the way first. I don’t have an issue with the qualifications of your colleagues.  What I do have issue is that you’ve surrounded yourselves with people who can spout empty platitudes about “access to justice,” “accountability,” “efficiency,” and “effectiveness,” and have absolutely no skin in the game when it comes to answering the defendant waiting on why their lawyer doesn’t know much about their respective case or what’s going on or why that person is interested in pleading the case out despite the merits of that defendant’s case.

Bill, review the makeup of your “task force.” Not a single person on that panel requires indigent defense compensation for a living.  Not a single person has listened to Administrative Office of the Courts staff tell them that after working a certain number of hours, they won’t get paid.  And these are the people who are tasked with reforming the way indigent defense is handled in this state?  Call me a cynic, but I can’t see much change coming from a panel of people who already have a steady paycheck.

Because you seem to value honesty, permit me to provide you with this reality wake- up call. If you ask just about any current member of the General Assembly, they will tell you that the annual appropriation to fund indigent representation programs is among the least popular appropriation they make every year. In fact, many legislators lean toward cutting this appropriation, and it has been a challenge for quite some to maintain the status quo. I mention this only to help you understand that there is no chance – 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 for the purpose of increasing the hourly rate paid to private attorneys appointed to represent indigent criminal defendants is and will continue to be dead on arrival. (my emphasis)

Well. Thank you, Bill, for finally admitting the truth that the legislators in Nashville are too cowardly to admit.  They don’t like the fact that people in Tennessee facing crimes are entitled to counsel if they can’t afford reasonable attorney rates. They want to take steps every year to screw people out of that right by looking at just how the business of law works, how the way the low rates of compensation affect indigent clients and the lawyers who represent them, and how the result turns Tennessee’s indigent defense representation into nothing more than a glorified plea mill that keeps the parties who ask for a court appointed attorney in a scenario where they’re more likely to end up with a plea deal than a full and fair trial on the merits.  You make it very clear with this one paragraph that Tennessee does not give a damn about those who are charged with a crime.  Your honesty is refreshing.

The shared challenge facing all of us is to examine the current system from top to bottom and then to consider and recommend significant structural changes after receiving input from the stakeholders and considering the best practices in other states. These recommended changes must be grounded in the imperatives in the Sixth Amendment and Article I, § 9 of the Tennessee Constitution. However, to receive serious consideration, they must also be accountable, efficient, and effective. In my opinion, anything short of this will not convince the General Assembly to increase funding. (my emphasis)

During our phone conversation, I asked you what you meant by “stakeholders.” You were kind enough to relay that this means everyone in the legal system.  “Stakeholders” were public defenders, judges, prosecutors, and private appointed counsel.  I would challenge you and the rest of the Task Force to look at this from the perspective of one other stakeholder.  That’s the person charged with a crime who can’t afford “reasonable attorney rates.”

There is a great deal of work to do. The Task Force is currently compiling historical and current data and other information…In addition, we are currently planning a series of fact-finding meetings around the state to enable lawyers, judges, and other interested persons to talk directly with Task Force members about the strengths and weaknesses of the current system.

When we spoke on the phone, you likened this to a legal version of Jenga. The “Task Force” was responsible for making sure people received effective representation, but was cognizant that if you pull too hard on one piece, the entire framework would fall apart.  I respect that.  Just make sure when you start with your “fact-finding meetings,” you begin with those of us in the trenches who have fifteen minutes to explain to a client why they’re not getting a bond reduction.

You advocate “three actions” in your open letter. Each of these are already on the Task Force’s agenda for consideration. If you would like to be part of the solution, I hope you will considering attending and speaking at one of the meetings in East Tennessee.

Bill, I advocated for those three simple actions because they would reverse the tide that is the “plea mill” in Tennessee, increase quality of representation for the sake of indigent defendants, and give experienced attorneys who are interested in taking on indigent defense cases, but are unable to do so because of the return on investment, a stab at getting back in the game.

Regardless, I look forward to meeting with you.  You promised in our phone call you’d keep me apprised of the meetings in East Tennessee.  I plan to be there, and I look forward to our meeting in person.

And I look forward to discussing what steps the Task Force takes on Fault Lines.

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  • Win Or Lose, You Pay | Simple Justice
    15 February 2016 at 8:00 am - Reply

    […] But Sammons chose to put the screws to her anyway.  Then again Tennessee is doing everything possible to cheap out on indigent defense, because, well, it just doesn’t want to pay. […]

  • The Task Force: Doing What Needed To Be Done – Mediation is Dead
    23 May 2016 at 7:38 pm - Reply

    […] Knoxville News-Sentinel article regarding Chairman William Koch’s attempts at backpedaling on a letter he sent me in February, claiming any attempts to raise rates of funding for indigent defense […]

  • Debate: Extra Rights For Victims Strip Everyone Else Of Theirs
    22 November 2016 at 9:18 am - Reply

    […] proposition? Not to mention the taxpayer dollars wasted on such resources. Legislators already love admitting they’re tough on crime when cutting indigent defense appropriation budgets. There’s […]