Pleading the Sixth: (Part 1 of a two-part series.) The United States Department of Justice, Civil Rights Division (DOJ-CRD) delivered a report to Shelby County, Tennessee (Memphis) in April 2012 stating the Juvenile Court of Memphis and Shelby County (JCMSC) fails to ensure a meaningful right to counsel for children in delinquency proceedings. The Sixth Amendment Center explains why the local court is being cited when Tennessee supposedly has a “state-funded, state-administered” indigent defense system and concludes that the problems DOJ-CRD uncovered in Memphis are those of a “non-system.” In a companion piece, we discuss the implications for future changes in Shelby County.
On April 26, 2012, the U.S. Department of Justice, Civil Rights Division (DOJ-CRD) delivered a report, Investigation of the Shelby County Juvenile Court, to officials in Shelby County, Tennessee (Memphis) stating that the Juvenile Court of Memphis and Shelby County (JCMSC) “fails to ensure due process for all children appearing for delinquency proceedings,” in direct violation of the U.S. Supreme Court’s ruling in In Re Gault, 387 U.S. 1 (1967). The DOJ findings, as reported in the August 12th edition of the Memphis Commercial Appeal, describe a system of “unprepared and uninformed defense attorneys.” (Note: subscription required to read Commercial Appeal articleson mobile devices).
That the DOJ-CRD cited the local court may seem at odds with the general characterization of Tennessee as having a “state-funded, state-administered” right to counsel system. To fully appreciate the enormity of the problems identified by DOJ-CRD in Memphis – and to understand how analogous deficiencies in your own backyard could lead to a visit from the DOJ-CRD – a review of how indigent defense is structured and funded throughout the state of Tennessee is required.
Understanding the Right to Counsel in Tennessee
In the immediate wake of the Gideon v. Wainwright, 372 U.S. 325 (1963) establishing the right to counsel in felony cases where a person’s liberty is at stake, the state of Tennessee assumed the responsibility for paying for indigent defense services in the various courts throughout the state’s 31 judicial districts (encompassing 95 counties). The vast majority of state courts implemented Gideon by relying on private attorneys paid hourly to provide representation. That is, the local judges would appoint local attorneys, approve payment vouchers and forward them to the state Administrative Office of the Courts (AOC) to cut the attorneys’ paychecks.
However, two counties had existing public defender offices prior to the Gideon decision, Shelby County and Davidson County (Nashville). In fact, the Shelby County Office of the Public Defender (OPD) was one of the very first public defender offices in the United States (founded in 1917). In 1961, the Tennessee legislature passed an act at the urging of Nashville policy-makers authorizing the creation of the Metropolitan Public Defender Office (MPDO) in Davidson County. In August of 1962, the MPDO became one of the first offices in the country to be overseen by a popularly elected chief defender. Though the state of Tennessee assumed the primary responsibility for funding these offices with the Gideon decision, both Shelby County and Davidson County augment the state money with local resources and the staffs of the two offices remained county employees.
District public defenders
In 1986, the state of Tennessee began expanding the public defender model through a series of pilot programs aimed at allowing the state to more effectively budget from year-to-year. The public defender expansion culminated in the creation of the Tennessee District Public Defender Conference (TDPDC) in 1989. TDPDC is essentially a state funded umbrella organization that coordinates training, provides assistance, and disseminates state funding to each of the states 31 judicial districts. Following the Davidson County model, the chief defender in each district is locally elected to an 8-year term. Actually, that is a mischaracterization. All district defenders are elected to eight-year terms except for the Davidson County chief defender (who is elected every four years) and the Shelby County public defender (who is not elected at all). In Shelby County, the chief is appointed by and serves at the pleasure of the county mayor.
Under Tenn. Code Ann. § 8-14-402, the 31 district defenders vote to elect the Executive Director of TDPDC to a four-year term by simple majority vote. It may be tempting to think of the TDPDC Executive Director as analogous to a statewide Chief Public Defender in another state, but that would be incorrect. The TDPDC Executive Director carries out policies as determined by the district public defenders. To facilitate more efficient decision-making, the 31 district defenders annually elect an executive committee that run the day-to-day operation of the Conference through the executive director. Similar to the election of the TDPDC Executive Director, the election of the executive committee and policy positions (including budget) are determined by majority vote of the district defenders. The budget for TDPDC is then presented and defended by the TDPDC Executive Director at the state level.
District public defender funding
In the formative years of TDPDC, a statutory framework was created for the existing public defender offices in Shelby (Memphis) and Davidson (Nashville) counties to establish a baseline commitment of state-funding that would prospectively increase in future years at the same percentage rate as the state-funding increases given to TDPDC. Tenn. Code. Ann § 8-14-210 requires that “in addition to the amount appropriated in 1992-93 or any subsequent year, the state shall pay to the county or metropolitan government an amount equal to the percentage of any general increases in appropriations for district public defenders.”
Additionally, although the State of Tennessee funds prosecutors throughout the state (called “district attorney generals”), local jurisdictions may augment that funding if they so choose. However, Tenn. Code Ann. § 16-2-518 requires that any “increase in local funding for positions or office expense for the district attorney general shall be accompanied by an increase in funding of seventy-five percent (75%) of the increase in funding to the office of the public defender in such district for the purpose of indigent criminal defense.” This statute (“75% rule”) comes close to meeting the American Bar Association, Ten Principles of a Public Defense Delivery Systemdemand that there be “parity between defense counsel and the prosecution with respect to resources” (Principle 8).
Knox County (Knoxville) is one of the few jurisdictions in the Tennessee that augments its state-funding through the “75% rule.” More than a quarter of the budget of the Knox County Community Law Office (the Knox County district defender) is local funding. The funding, in part, accounts for the office’s reputation as a national model for the delivery of holistic representation and client-centered advocacy.
But the general characterization of Tennessee as a primarily “state-funded” indigent defense system does not hold up in the states two most populous counties (Shelby and Davidson counties). According to an opinion piece authored by the Shelby and Davidson district defenders in the May 5, 2012 Commercial Appeal, the state of Tennessee has never fulfilled that statutory mandate to keep their funding on par with TDPDC. While state funding for TDPDC has increased over 200% from 1993 to 2012 – or, “from approximately $11 million to more than $34 million” – the state funding for Shelby and Davidson counties reportedly increased only 42% over the same time period. In the opinion piece, the public defenders argue that the disparity occurred because the state appears to have calculated increases for “Shelby and Davidson counties only when there are across-the-board salary increases for state employees.” If true, the two urban counties “do not benefit when state district public defenders receive general increases to cover the normal costs of doing public defender business – costs like employer contributions to health insurance benefits, technology, training and capital improvements.”
If the state-funding gap does exists (and, if it exists for the reasons stated by the two urban defenders), then the mandated local funding of the public defenders in Shelby and Davidson counties under “75% rule” would be severely watered down. That is, instead of balancing increases to the prosecution function, the local “75% rule” funding for the district defenders in those jurisdictions would be going to pay for the costs of existent personnel that should be paid for by the state. Whether or not the opinions of the Shelby and Davidson district defenders are factual, it is empirically true that local funding under the “75% rule” in Shelby County is the primary source of funding for OPD (state-funding accounts for only approximately 29% of the Shelby County OPD budget). Similarly, though Davidson County does not adhere strictly to the “75% rule,” the funding of the Metropolitan Public Defender Office has historically been in line with the statute (though in some years MPDO local funding is above and in some years below the 75% parity goal). The end result is that approximately three-quarters of the MPDO budget is derived locally.
Tennessee Supreme Court Rule 13 establishes the rules for the appointment, qualification and payment of attorneys in those cases where the public defender has a conflict of interest (public defenders, for example, cannot ethically represent co-defendants). Tenn Sup. Crt. Rule 13(1)(e)(4)(A-D) directs the court to appoint district public defenders unless there is a conflict of interest or unless the district defender “makes a clear and convincing showing that adding the appointment to counsel’s current workload would prevent counsel from rendering effective representation in accordance with constitutional and professional standards.”
To handle conflict and overload representation, Tenn. Sup. Crt. Rule 13(1)(b) directs each trial court to “maintain a roster of attorneys from which appointments will be made.” Although the court rule lists extensive qualifications for lead and co-counsel in capital cases, there are no qualification parameters set out for the trial-level representation of adults and juveniles in non-capital cases. In short, discretion is left to the local courts about which lawyers are or are not qualified.
The same court rule delineates how such attorneys will be compensated. Attorneys can bill the court $40 per hour for out-of-court case preparation and $50 per hour for in-court work, though total compensation cannot exceed pre-set limits (e.g., the maximum an attorney can bill for a juvenile delinquency case is $1,000). Though the local judge is responsible for approving the voucher – and for approving case-related expenses – the state Administrative Office of Courts (AOC) pays the attorney out of state funds.
Back to the DOJ-CRD report
What does all this mean to the problems of delinquency representation in Shelby County? Despite Tenn. Sup. Crt. Rule 13 requiring the appointment of district defenders in the first instance, the Shelby County Office of the Public Defender (OPD) has not handled juvenile delinquency representation in over 25 years. Rather, the Juvenile Court of Memphis and Shelby County (JCMSC) runs the Juvenile Defender’s Office (JDO) as a division of the court – with the presiding judge hand-picking the office head and certifying all of the JDO defenders. Moreover, JDO is not a public defender office in the traditional sense. Indeed, even the term “office” is a misnomer. JDO is just a collection of private attorneys that operate out of their own private law practices. The JDO head is a court employee that, according to a 2007 report on JCMSC by the National Center for State Courts, mainly “manages the scheduling of attorneys and monitors the availability of panel members” and “assists in the processing of applications for payment.”
The judicial appointment of the JDO director and selection of panel attorneys directly violates ABA Principle 1 requiring independence of the defense function from the judiciary. In our experience in other states, judicial interference is often most detrimental to the aims of the sixth amendment when judges control appointments locally without being accountable to a local budgetary process. That is, when judges can appoint anyone – campaign contributor, inexperienced counsel, and/or attorneys willing to keep the docket moving – and authorize payment from a state agency that is not set-up to monitor the quality of the services rendered (as required by ABA Principle 10), the accused is left with no avenue for redress for poor services other than the complicated ineffective assistance of counsel appeals process. No one locally (other than the judge) would have a reason to step in since there is no financial imperative to do so. And, has been reported before, a judge simply cannot play the role of supervisor over indigent defense representation. As the United States Supreme Court stated in Powell v. Alabama, 287 U.S. 45 (1932):
[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that, in the proceedings before the court, the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.
With no outside mechanism for quality assurance in Shelby County’s juvenile delinquency courts, it was not surprising that DOJ-CRD determined that a “juvenile defender must balance the duty of representing the child client with the inherent duty of loyalty to his or her employer.” Without a “structure” for juvenile defense services (things like training, caseload controls, and supervision/evaluation) that can indoctrinate young attorneys as to the parameters of ethical representation, attorneys simply learn to function in the court environment as it has operated down through the years. The DOJ-CRD report makes this clear: “Against the backdrop of a court culture that frequently discourages an adversarial testing of facts for children and misinterprets the proper role of defense counsel, the Juvenile Defenders in JCMSC are challenged to meet ethical and professional obligations to their clients.”
As the U.S. Supreme Court said in United States v. Cronic, 466 U.S. 648 (1984):
The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. …[I]f counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.
It was the lack of such “meaningful adversarial testing” that led DOJ-CRD to conclude that Shelby County “fails to ensure due process for all children appearing for delinquency proceedings.” And, the collateral consequences that result from the lack of meaningful advocacy in JCMSC are numerous. For example, DOJ-CRD further determined that the Shelby County Court “engages in conduct that violates the constitutional guarantee of Equal Protection and federal laws prohibiting racial discrimination, including Title VI” and that the Court’s “failures interfere with the proper administration of juvenile justice, erode public confidence in the system, and fail to promote public safety.” According to DOJ-CRD, the racial discrimination leads to limited access to treatment in lieu of sentencing, disparity in initial detention, and disparity in the rates of transfer to adult court, among others.
What occurred in Memphis is that a “non-system” was allowed to devolve in a state that was once in the forefront of jurisdictions attempting to meet Gideon’s promise through state funding. Because JCMSC is county-funded and because JDO was a division of the court (despite the state paying the bills), the county bears the responsibility for fixing the deficiencies. The motto of the story is that focusing simply on who pays the bills or on the expansion a particular delivery model (in this case public defender offices) without adherence to structural standards and guaranteeing the resources to meet those standards does not a “system” make. All jurisdictions that similarly have right to counsel systems controlled by the judiciary and that fail to provide attorneys with sufficient time, training and supervision to put the prosecution’s case to “meaningful adversarial testing” are “non-systems” that could become the next target of DOJ-CRD – including Tennessee’s own mode for providing conflict representation.
 To complete the funding picture, Tenn. Code Ann. § 40-14-210 allows criminal courts to assess a $12.50 local tax on all criminal warrants with the revenue collected to be dedicated to the local district defender. But, Tenn. Code Ann. § 40-14-210 is discretionary (it takes a two-thirds vote of the county commissions to even implement it) and even then, if put into practice, there is no requirement about where in the chain of other court assessed fees the indigent defense dedicated fee is to be situated. In short, the amount of money generated through this alternative revenue source (if any) varies across the state. For example, in Davidson County the generated revenue simply reverts back to the county general fund to offset their other local funding, whereas in Knox County the money goes to the district defender in addition to other local and state funds. In Shelby County, this resource stream simply generates very little funding at all. Because of the marginal impact this funding has on the defense of the indigent accused, the Sixth Amendment Center opted to not interrupt the flow of the story with this additional funding information.