Liberty Justice & for All Providing Right to Counsel Services in Tennessee Indigent Representation Task Force April 2017 Liberty Justice & for All Providing Right to Counsel Services in Tennessee Table of Contents Introduction .................................................................................................................1 Task Force Members ...................................................................................................3 Preface .........................................................................................................................5 Executive Summary .....................................................................................................7 Issue 1 – Data Regarding Cases ..................................................................................9 Issue 2 – Efficiency in Providing Representation ..................................................... 15 Issue 3 – Determination of Indigency ......................................................................25 Issue 4 – Compensation of Appointed Attorneys .....................................................33 Issue 5 – District Public Defender Resources ...........................................................39 Issue 6 – Representation of Children & Parents ......................................................45 Issue 7 – Expert Services ...........................................................................................51 Related Issues Requiring Additional Attention ........................................................55 Endnotes ....................................................................................................................62 Appendices A. Indigent Representation Task Force Member Biographies .................................67 B. History of Indigent Representation in Tennessee & Endnotes ............................75 C. Right to Counsel Services in the 50 States& Endnotes ........................................95 D. Tennessee Supreme Court Rule 13 .....................................................................139 E. Uniform Affidavit of Indigency ...........................................................................165 F. History of Compensation under Tennessee Supreme Court Rule 13 .................169 G. Expert Rates Enumerated in Tennessee Supreme Court Rule 13 .......................171 H. Public Defender Resources ................................................................................. 173 I. Indigent Claims Statistics .................................................................................... 177 J. Personal Appearances before the Task Force ..................................................... 179 K. Written Submissions to the Task Force ..............................................................185 L. Bibliography ....................................................................................................... 191 Introduction Tennessee’s programs providing legal assistance to eligible adults and children touch the lives of thousands of Tennesseans every day. Not only do they protect the liberty of persons accused of crime, but, by doing so, they protect the interests of their families. They protect children whose futures are clouded by delinquency or whose well-being is undermined by neglect, abuse, and abandonment. They protect those facing invol- untary hospitalization or the loss of their children. In short, these programs reflect our collective belief that all Tennesseans should be treated fairly when the government seeks to interfere with their most fundamental rights and liberties. The Tennessee Supreme Court created the Indigent Representation Task Force in Oc- tober 2015. The Court requested the Task Force review the current manner in which Tennessee is fulfilling its legal obligation to ensure that eligible adults and children receive appropriate representation. Noting the dual demands for effective representa- tion and for accountability to the public, the Court requested the Task Force to submit findings regarding the manner in which counsel is currently being provided and to recommend specific steps to buttress and improve the current system while ensuring eligible adults and children receive appropriate legal representation in the future. Since its creation, the Task Force has held nine public meetings in Nashville and has conducted lengthy listening sessions in eight urban and rural locations throughout Ten- nessee. During these meetings and listening sessions, the Task Force has received infor- mation from lawyers, judges, court clerks, elected officials, legal and judicial organiza- tions, and members of the public. In addition, it has reviewed prior studies and reports concerning the manner in which Tennessee has provided legal representation to eligible adults and juveniles. The Task Force has also considered reports of similar task forces in other states, as well as standards and recommendations developed by national organiza- tions with experience and expertise regarding the provision of legal services. The members of the Task Force are grateful to all who have participated in its meet- ings and listening sessions and to those who have otherwise submitted information for our consideration. We are particularly grateful for the many contributions of the mem- bers of our Advisory Council – and the U.S. Department of Justice, Bureau of Justice Assistance, National Training and Technical Assistance Center, for providing research and consulting services through the Sixth Amendment Center.* Indigent Representation Task Force April 2017 * This report was supported, in part, by Contract Number GS-00F-008DA awarded by the Office of Justice Programs, U.S. Department of Justice. Points of view or opinions in this report are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. 1 Task Force Members1 Justice William C. Koch, Jr., (Ret.), Chairperson President and Dean, Nashville School of Law Lela Hollabaugh, Esq. Partner, Bradley Arant Boult Cummings, LLP Judge Deanna Bell Johnson Circuit Court Judge, 21st Judicial District Professor Susan L. Kay Associate Dean for Clinical Affairs and Clinical Professor of Law, Vanderbilt Law School Representative William Lamberth State House District 44 Susan Mattson (non-voting member) Principle Legislative Research Analyst, Tennessee Comptroller of the Treasury Mark A. Mesler, II, Esq. Attorney, Rosenblum and Reisman Law Firm Judge Loyce Lambert Ryan Shelby County General Sessions Court Judge Vicki Snyder Henry County General Sessions Court Judge Barry A. Steelman Criminal Court Judge, 11th District Senator John Stevens State District 24 Dwight E. Tarwater, Esq. General Counsel, Office of the Governor 3 Advisory Council Jason Gichner, Esq. Attorney, Morgan & Morgan Law Firm Professor Victor S. (Torry) Johnson III Visiting Professor of Law, Belmont University College of Law DarKenya W. Waller, Esq.2 Managing Attorney, Legal Aid Society of Middle Tennessee and the Cumberlands Professor Christina A. Zawisza Professor and Director of Child and Family Litigation Clinic, Cecil C. Humphreys School of Law Drafting & Organizational Staff David Carroll Executive Director, Sixth Amendment Center Rachel W. Harmon, Esq. General Counsel, Administrative Office of the Courts Candi R. Henry, Esq. Partner, Dodson Parker Behm & Capparella, PC Ceesha E. Lofton Legal Project Assistant, Administrative Office of the Courts Virginia M. Misa Tabor Paralegal, Administrative Office of the Courts Lacy E. Wilber, Esq. Assistant General Counsel, Administrative Office of the Courts Michele L. Wojciechowski, Esq. Director of Communications and Engagement, Nashville School of Law 4 Preface For the signers of the Declaration of Inde- tion by counsel, without unreasonable in- pendence, “liberty” reflected their belief terference or limitation.”5 that all persons should be able to live their lives free from unreasonable government In 1963, the United States Supreme Court interference. In fact, the framers of the decided in Gideon v. Wainwright that the Sixth Amendment requires the govern- United States Constitution believed that ment to provide a lawyer to persons fac- “liberty” is so central to American democ- ing criminal charges who cannot afford racy that they created our Bill of Rights to hire a lawyer.6 In later decisions, the as a bulwark against encroachment by the Court emphasized that government-pro- government. vided lawyers must have the time, train- Preeminent in the Bill of Rights is the ing, and resources to be able to represent principle that the government must use their clients effectively.7 The scope of fundamentally fair procedures when it Tennessee’s constitutional protection of seeks to take away any person’s liberty. the right to effective assistance of counsel The right to a jury composed of ordinary is the same as the scope of the protection 8 persons, the protection against self-in- afforded by the Sixth Amendment. crimination, and the right to be repre- The obligation for complying with the sented by a lawyer are all essential ingre- requirements of the Sixth Amendment dients of American justice enshrined in and Article I, Section 9 of the Tennessee the Bill of Rights. Constitution falls on the State of Ten- 9 The drafters of the Constitution of Tennes- nessee. This does not mean that the see were equally committed to protecting State must shoulder this burden alone liberty from government encroachment. or that