Tennessee’s Indigent Defense Task Force Does Nothing
Feb. 15, 2016 (Mimesis Law) — I ruffled some more feathers last Thursday when I called out Bill Koch, Jr., Dean of the Nashville School of Law, former Tennessee Supreme Court Justice, and Chairman of the Tennessee Indigent Defense Task Force, for getting upset over an October 2015 post claiming this “Task Force” would accomplish exactly nothing. I hurt Bill’s feelz, and responded to his letter filled with a mix of honesty and lip service in the most measured way I could.
Less than ten minutes worth of searching on their own website proves the Task Force’s sole “work” is to placate concerned lawyers, acknowledge “work needs to be done,” and congratulate themselves by enlightening their membership on cursory topics an ordinary trench lawyer could explain in five minutes.
I tried to be nice, but since the Task Force doesn’t seem to want more work than they necessarily have to do, beyond providing talking points to those who call bullshit, I’m going to do their work for them and explain the crucial points of the indigent defense system no one on the Task Force decided pertinent to address, plus give Bill and his motley band all the historical data they could possibly need.
When it comes to misdemeanor or felony cases in Tenessee, the first person to get the case is the Public Defender. If the Public Defender’s office can’t handle the case due to a “conflict of interest,” the judge will look through the courtroom and see which attorneys are present. If a judge finds one in the room that can competently handle the case, the judge will ask counsel if he or she will take the case. Then representation commences.
Juvenile Court is a touch different. If it’s a Parent’s Attorney case or Guardian ad Litem, you’re more likely to get a phone call from a clerk asking whether you’re game to take the appointment. Regardless, when you get that appointment, you take it and you are that person’s counsel until the resolution of their case. You will do so with fee caps set by people who have never practiced law and work within the bounds of making sure the “taxpayer,” who’s never had to face a judge, is happy, and you do so with “hour caps” making defendants numbers, not people with actual legal issues.
You will do all of this with an understanding that the $36 million paid out by the state will never change, that you have an administrative wing “auditing” your bills at their whim and leisure, and each year this administrative wing wants to figure out a way to see you get paid less for the services you provide to those who cannot afford reasonable attorney rates.
That “Administrative Wing” is the Tennessee Administrative Office of the Courts, or AOC. They set policy, propose rule changes, and make the decisions on how indigent defense attorneys get paid. That pay scale is defined in Tennessee Supreme Court Rule 13.
In 2011, the AOC, at the Tennessee Supreme Court’s behest, conducted a state-by-state investigation of how indigent defense funds were maintained and to make the system more “efficient.” In this report, the AOC determined the best way to utilize the indigent defense appropriation would be requiring court-appointed attorneys to enter into a fixed fee system similar to those government contractors use. You submit a bid for how much you’ll accept to take cases, and if it’s accepted by the AOC, you are placed on a list. If the public defender can’t take the case, it goes to the list of “preferred” contractors. If no one on the list can take it, an outside attorney might get the appointment.
When the proposed change to Rule 13 reached a period for public comment, enough attorneys, judges, and legislators called the proposed rule change “a slap in the face to a lot of attorneys” nationally. This caused the court to back off a bit, and only use the system for child support cases in a “test county.” That “test county’s” savings were of such a nature the system was implemented statewide at the juvenile level, with mealy-mouthed language about how the AOC was “authorized,” but not “required,” to enter into contracts with attorneys to provide services. In 2013, the AOC, with the Tennessee Supreme Court’s blessing, set a cap of two thousand hours for attorneys to handle court appointed cases. Indigent defense attorneys were given a helpful guide to tell them how long their cases should take, and were told that it was incumbent upon them to remember just how many hours they’d worked with indigent clients. Keep yourselves well within the cap, or you simply do not get paid.
That same year, the National Association of Criminal Defense Attorneys released a study called “Gideon at 50” which revealed Tennessee’s $40/hour out-of-court, $50/hour in-court pay scheme, with caps set on payments for each appointed case, constituted one of the lowest rates of pay in the country. The AOC, in full damage control mode, told the media it had “increased payments,” was limited by budget constraints, and that “criminal defense expenditures” represented “nearly half the court system’s budget.” Exposure of this problem accomplished exactly nothing.
In 2014, the Tennessee Bar Association, scratching its head as to why lawyers didn’t want to extend their kindness and generosity to help poor people for little to no pay, surveyed attorneys across the state. The survey findings were consistent with silent attorney complaints spanning years. The fee caps were hit frequently, especially with Guardian ad Litem duties, the amount of time and paperwork required to submit a fee claim was so great that over seventy percent of the attorneys surveyed didn’t bother submitting payments. A third of those surveyed had stopped taking appointments completely, with eighty percent of those indicating rate of pay was a factor in not taking these cases. The survey accomplished exactly nothing.
In October of 2015, the Indigent Defense Task Force is announced. Everyone congratulated themselves through a press release. I expressed absolutely no enthusiasm, as history and experience shows this is an issue where “Task Forces” and “Blue Ribbon Panels” accomplish exactly nothing.
The Task Force held one meeting in November, 2015, filled with deferential back-slapping bullshit and a PowerPoint presentation from Pam Hancock, the AOC’s “Fiscal Services Director” and David Byrne, the AOC’s Assistant General Counsel. It details out such important topics as the definition of “indigency,” when someone should fill out an “Affidavit of Indigency,” and reiterates the pay rates and fee caps. Information judges and attorneys already knew, and the politicians assigned to this feel-good celebration already should have known.
All is silent until February, 2016, when the Chairman of the Task Force writes me a letter full of hurt feelz, talking points, and one nugget of truth. The General Assembly doesn’t care about those who truly cannot afford “reasonable attorney’s fees” and any proposal to raise the indigent defense appropriation or increase rates of pay for court appointed attorneys will always “be dead on arrival.”
All of the “systemic flaws” and “historical data” compilation not covered in Pam Hancock and David Byrnes’ PowerPoint took me about two hours to compile and type. Bill Koch, if you’re reading this, I’m glad I could be of service to the Task Force and the State of Tennessee. Where should I send the bill?