Is Tennessee Going to Fix Its Death Penalty?

The 2007-2008 Legislative Death Penalty Study Committee

The Survival of the Tennessee Death Penalty System Depends Upon Comprehensive Reform
Informed by the accumulation of examined experience since the death penalty was reinstated in Tennessee in 1977 and in light of the evolving standards set by the United States Supreme Court, beginning in 1976, it is becoming increasingly apparent that the process by which this state selects those it will execute is, at best, problematic. The death penalty does not do what it was designed to do and what it is constitutionally required to do " identify the worst offenders for execution in a fair and reliable manner. In the shadow of the work of the 2007-2008 legislative Death Penalty Study Committee, it is may be inevitable that the administration of the death penalty in Tennessee is sooner or later due for a comprehensive overhaul if is ultimately to survive in Tennessee.

The Unresolved Need for Reform of the Death Penalty in Tennessee.

In Furman v Georgia (1972),[1] the United States Supreme Court ruled that the death penalty had been administered in this country unfairly and unreliably in violation of the 8th Amendment of the United States Constitution. Four years later, in five different opinions arising from cases out of five different states, the United States Supreme Court authorized the reinstatement of the death penalty, but only under circumstances that would insure that the death penalty is being administered in a manner that is fair and reliable, and not in a manner that is discriminatory, arbitrary, or capricious.[2]

As the administration of the death penalty in Tennessee has evolved over the past generation, however, several studies, reports, and judicial commentary have consistently agreed that this constitutional mandate has not been satisfied in Tennessee. In a September 2005 article in the Tennessee Bar Journal, Gilbert Merritt, former Chief Judge of the Sixth Circuit Court of Appeals, stated: "The administration of the death penalty nationwide remains broken and arbitrary, and that seems particularly true in Tennessee."[3] In a recent Sixth Circuit Court of Appeals death penalty case, Judge Boyce Martin concluded that the efforts "attempting to ensure the fairness, proportionality, and accuracy" in the administration of the death penalty have "utterly failed," and further concluded that the system remains "arbitrary, biased, and ... fundamentally flawed at its very core."[4]

In a report released in 2007, the American Bar Association (ABA) comprehensively evaluated numerous issues relevant to the administration of the death penalty in Tennessee.[5] Applying protocols or standards for "a fair and accurate capital case system that complies with constitutional standards," this ABA Tennessee Study made ninety-three recommendations for reform, only seven of which Tennessee was in full compliance.[6] Specifically, the ninety-three recommendations addressed problems in need of reform in the following areas that impact the administration of the death penalty in Tennessee: (1) the collection, preservation, and testing of DNA and other types of evidence; (2) law enforcement identifications and interrogations; (3) crime laboratories and medical examiner offices; (4) prosecutorial professionalism; (5) defense services; (6) the direct appeal process; (7) the state-post-conviction process; (8) clemency; (9) capital jury instructions; (10) judicial independence; (11) racial and ethic minorities; (12) mental retardation and mental illness.[7]

Much of the critical commentary since Furman has been focused specifically on the problems in Tennessee with regard to the adequacy of indigent defense representation in death penalty cases.[8] For example, a joint state/federal Tennessee Committee of the Sixth Circuit Death Penalty Task Force concluded in 1987 that the "availability of competent, willing lawyers is woefully inadequate" in Tennessee death penalty cases.[9] In 1992, The Spangenberg Group, which has analyzed indigent defense systems throughout the United States, concluded that defense representation in Tennessee death penalty cases "falls short of virtually every standard."[10] In 2004, a Tennessee Bar Association report concluded that defense representation in Tennessee death penalty cases was "woefully out of step with national standards," and that "[t]he result of the Tennessee system is that it perpetuates providing defense services that satisfy only the lowest common denominator in the quality of representation."[11] In the 2005 Tennessee Bar Journal article, referred to above, Judge Merritt described "a consistent pattern of ineffective assistance of counsel" in Tennessee death penalty cases.[12] The 2007 ABA Tennessee Study, referred to above, made five recommendations for reform specifically with regard to indigent defense representation, concluding that Tennessee was in compliance with none of them.[13]

Numerous Tennessee death sentences have been reversed in state[14] and federal[15] court, pursuant to the test promulgated in Strickland v. Washington, due to the ineffectiveness of appointed counsel.[16] But, these reversals are only the "tip of the iceberg" of inadequate defense representation in Tennessee death penalty cases; because, as Justice Blackmun of the United States Supreme Court put it, "practical experience establishes that the Strickland test has failed to protect a defendant's right to be represented by something more than 'a person who happens to be a lawyer,'" which is patently insufficient in a death penalty case.[17]

With regard to the five Tennessee inmates who have been executed since Furman, serious questions remain regarding their criminal responsibility or culpability.[18] Three of the inmates executed suffered from diagnosed, serious mental illness.[19] Evidence was discovered after trial that one, and perhaps two, of those three mentally ill inmates may have been innocent.[20] Regarding a fourth inmate, even stronger evidence developed after his trial indicated that he was innocent of capital murder.[21] And regarding the fifth inmate, most recently executed, it is uncertain whether the assailant was the executed inmate or his accomplice who was spared the death penalty because he testified for the prosecution.[22] Evidence developed and presented in litigation after and collateral to the trials of all five of the executed inmates revealed the defense representation of each to have been below the accepted professional standard of care.[23]

Any rudimentary examination of the population of Tennessee inmates convicted of homicide serving sentences of less than death when compared, based on valid sentencing criteria, to those awaiting execution reveals that there is no discernible or demonstrable difference between the two groups. The only characteristic truly shared by all the inmates on Tennessee's death row is that they are poor and powerless, not that they are the most culpable offenders. In sum, for more than 30 years since the beginning of the post-Furman death penalty regime, notwithstanding the mandates of the United States Supreme Court, those responsible for the administration of the death penalty in Tennessee have not been able to ensure that death sentences are being imposed in a fair, reliable and constitutional manner.

The 2007-2008 Legislative Death Penalty Study Committee

Informed by this history of a failed system by which our state unfortunately attempts to meet its most extreme and controversial responsibility, i.e., the determination of who among its citizens lives and who dies, the Tennessee General Assembly passed a bill in early 2007 that created a Committee to study the administration of the death penalty in Tennessee.[24] The term of that Committee expired at the end of 2008.

The membership of the legislative Death Penalty Study Committee (DPSC), as promulgated by the enabling statute, consisted of representatives from the following entities: General Assembly (Senate and House); Governor; State Attorney General; District Attorney Generals Conference (DAGC); Tennessee Bar Association (TBA); Tennessee Association of Criminal Defense Lawyers (TACDL); District Public Defenders Conference (DPDC); Post Conviction Defenders Office (PCDO); Tennessee Justice Project (TJP); National Alliance on Mental Illness Tennessee (NAMI); and, two victims' rights organizations: Murder Victims Families for Human Rights (MFHR), and "You Have the Power." Three of the entities " Senate, House, and Governor " had two representatives each on the DPSC. The remaining ten entities had one representative each.

The DPSC was co-chaired by Sen. Doug Jackson and Rep. Kent Coleman.[25] The DPSC began its work on October 15, 2007. Originally, the term of the Committee was for one year; but, the 2008 General Assembly extended the life of the Committee for three months, which took it to the end of 2008.

During the fall of 2007, interrupted by the 2008 session of the General Assembly, the full DPSC held hearings and received statements from relevant witnesses. In June 2008, as the size of the scope and the scale of the inquiry became more evident to the co-chairs Jackson and Coleman, they selected three subcommittees from the DPSC membership in order to expand the capability of its investigation.[26] The subcommittees were named with the intent to reflect the goals of the DPSC for reform of the administration of the death penalty, as follows: the Accuracy, Fairness, and Promptness subcommittees. Topics for investigation were assigned to the three subcommittees.[27] After June 2008 until the end of the year, the three subcommittees held hearings and received statements from witnesses. The full DPSC convened to consider its final recommendations in December 2008.
Before its work was completed, the full DPSC or its subcommittees heard from 27 witnesses who testified regarding a myriad of subjects relevant to the administration of the death penalty.[28] Most of the witnesses filed documents supporting and supplementing their testimony. The statements of the witnesses were recorded and their documentary submissions preserved. Shortly after the beginning of 2009, the DPSC agreed upon a final report that summarized the contributions from witnesses, and the discussions, deliberations, and recommendations of the members of the DPSC.[29]

As a result of the work of the DPSC, in the current 2009 term of the General Assembly, Co-chairs Sen. Jackson and Rep. Coleman have sponsored proposed legislation that represent a first step toward a meaningful reform of the administration of the death penalty in Tennessee:

SB 1679/HB 1447: The Tennessee Death Penalty Representation Services Act of 2009, which would create an office of indigent defense representation that would be charged with: setting and enforcing standards for effective defense representation in death penalty cases, such as for qualifications, compensation, workload, and training; administering the Indigent Defense Fund to the extent that it funds defense representation in death penalty cases; recruiting and appointing counsel qualified and able to provide effective representation in death penalty cases; and, providing consultation and assistance to counsel appointed in capital cases. In addition to providing necessary, and currently nonexistent, indigent defense representation services, this legislation would allow the capital indigent defense bar for the first time to do that which the prosecution has always done, i.e., independently administer and supervise its own budget and function without the supervision and approval of the judiciary.

SB 0261/HB 0596: Recordation of custodial interrogations related to homicide, which would require that all statements made by a person during a custodial interrogation relating to a homicide be electronically recorded and preserved.

SB 1402/HB 1456: Tennessee Death Penalty Open File Discovery Act, which would require that the district attorney general make available to counsel for the defendant for inspection and copying all documents relevant to the investigation, tangible objects and statements, together with complete files of all investigative agencies, as well as any expert witnesses that the state reasonably expects to call as witnesses at trial, excepting the prosecution's work product created for their own use at trial.

The work of the DPSC was ably conducted by a membership that consisted of a representative cross section of the stakeholders in the criminal justice community as it pertains to the administration of the death penalty.[30] Considering the fact that the members of the DPSC volunteered their time and were otherwise occupied with full-time professional responsibilities, their contribution was, indeed, substantial.

The work of the DPSC was not funded, however, and, consequently, did not have the resources and staff to do a comprehensive study. Also, the DPSC did not have enough time. The DPSC was originally created for a duration of only one year from October 2007 to October 2008. It quickly became obvious that the work of the Committee could not be completed in one year; and, in the 2008 term of the General Assembly, the co-chairs of the DPSC sponsored legislation to extend the life of the DPSC for another year. The General Assembly did agree to extend the life of the DPSC, but only for three months to the end of calendar year 2008. When compared to the scope of the ABA Tennessee Study and its recommendations, for example, the limited scope of the work of the DPSC is apparent.

Consequently, the DPSC had an opportunity to address only a fraction of the many problems with regard to the fairness and accuracy of the death penalty in Tennessee. The DPSC and its subcommittees were not even able to consider, let alone address, the majority of the topics assigned to the subcommittees. The currently pending legislation that resulted from the work of the DPSC is a necessary beginning, but only a beginning, of what needs to be done to render a fair and constitutional system and is not sufficient in itself to remedy the myriad problems. It is clear that further study, and more importantly further action, needs to take place before there is any hope for a future with a death penalty fairly and accurately administered in compliance with the constitutional mandate.

How Would Tennessee Fix Its Death Penalty?

The best chance for fixing Tennessee's death penalty would require changes in institutional structure and practices along with budgetary increases. The specific changes that would be required are subject to debate and beyond the scope of this article, but suffice it to say that they would involve an examination of potential changes in the state code and the practices of law enforcement, prosecution, defense, courts, corrections, and executive branches of government.[31]

With regard to the defense function, the passage of SB 1679/HB 1447: The Tennessee Death Penalty Representation Services Act of 2009 would be necessary. Institutional measures that currently do not exist but that would be provided pursuant to SB 1679, assuming they are adequately funded, are necessary to insure effective representation in death penalty cases. The proposed legislation would also establish the independence of the indigent defense function in death penalty cases " the type of independence currently enjoyed by the prosecution.

Further, the playing field between the prosecution and the defense must be leveled, as required by the due process clause in the Tennessee and United States Constitutions, to insure a "balance of forces between the defense function and the prosecution function."[32] According to a study of the 2005 funding of the prosecution and defense, the prosecution has more than four times the resources available to the defense in indigent criminal cases (not just capital cases, but all indigent criminal cases).[33]

Imbalance on this scale cannot exist in death penalty cases if they are to be resolved in a fair and reliable manner.
Concerning budgetary changes that must take place, the 2004 TBA Report summarized the situation, as follows:
Regrettably, Tennessee has resolved conflicts between the Treasury and the fundamental rights of the accused in favor of the State's Treasury ... [T]he focus must shift not to budgetary concerns but to creating a system for defense services that makes the imposition of death reliable and avoids arbitrary imposition of the ultimate punishment. In short, the cost factor must be considered when the state elects to have a death penalty as a possible punishment and then when it determines the number of those that it will make eligible for this unique punishment."[34]

In short, Tennessee must provide the funds necessary to insure the fairness and reliability of death sentences; and, if necessary to accomplish that result, Tennessee must limit the number of death penalty cases to that number at which it can fund the cases at a level sufficient to insure fairness and reliability in results. The emphasis on budgetary concerns must shift to an emphasis on fairness and reliability in the result.

Will Tennessee Fix Its Death Penalty?

Whether Tennessee can or will fix its death penalty remains to be seen. But, it is a question that must be asked and to which an answer is long overdue. It is without question that the death penalty, as administered, does not do what it was designed to do, i.e., identify the worst offenders for execution. Further, it does not meet its constitutional mandate to administer nonarbitrary, nondiscriminatory, and noncapricious death sentences imposed in a fair and reliable manner. If Tennessee is going to address these very significant problems, however, competing interests must be resolved.

The work of the DPSC was dominated by the political strength of the prosecution's lobby. The DPSC was a legislative committee; and, concerning criminal justice issues, the lobby of the prosecutors dominates everything legislative. The District Attorney Generals Conference (DAGC) and the Attorney Generals Office (AG) represented the interests of the prosecutors on the DPSC. Their representatives were the only dissenters from the Final Report of the DPSC. Otherwise, despite the overwhelming evidence that has developed over the past generation and was continuously demonstrated in the hearings held by the DPSC that the death penalty in Tennessee is in need of comprehensive reform, the two representatives of the prosecutors on the DPSC resisted the implementation of meaningful reforms.[35]

The prosecutors have repeatedly resisted past attempts to study the administration of the death penalty in Tennessee. The DAGC resisted the 2004 TBA Study of the effective assistance of counsel in capital cases and refused to allow a representative to co-chair the Committee of the TBA that conducted the study and drafted the report.[36] The DAGC refused to allow a representative to participate in the 2007 ABA Tennessee study of the administration of the death penalty in Tennessee.[37]

The subject of the death penalty is so politicized and the prosecutors are so polarized from the other stakeholders in the criminal justice system on the issue that meaningful discussion and consensus on the issue have been difficult, at best. Given the political influence of the prosecutors and their resistance to reform of the administration of the death penalty in Tennessee, it may be unlikely that meaningful reform will be accomplished. Without meaningful reform, however, the death penalty ultimately may not survive.

The DPSC did not consider the option of the discontinuation of capital punishment in Tennessee. The entire focus of the DPSC was on accuracy, fairness, and promptness in the administration of the death penalty. Though it might be a politically unrealistic possibility in Tennessee, however, the abolition of the death penalty is certainly not without precedent and merits consideration. Other recent death penalty studies in other states, such as the studies conducted in Illinois and New Jersey, have considered the abolition of the death penalty in their respective states. Because of the perceived questions of fairness and reliability in the imposition of its death sentences, the Governor of Illinois commuted the death sentences of all inmates on the state's death row. The New Jersey study recommended the abolition of the death penalty in that state with only one member of the study commission dissenting. Subsequently, the death penalty was abolished in New Jersey. The death penalty has also recently been abolished in New Mexico. Twelve other states in this country do not have the death penalty. In fact, the United States is the only major democracy in the world that continues to execute its citizens. Every year that passes more countries in this world terminate any reliance on the option of executing it citizens.

The integrity and reputation of Tennessee's legislative and judicial systems have been damaged as a result of its inability to fairly administer the death penalty. The failure of the system to deal effectively with this problem is sinking deeper into the consciousness of the general public. It is now generally accepted that the death penalty cannot be relied upon as a deterrent of future crime and that there are more effective crime control measures upon which our public funds can be spent. The cost considerations cannot be ignored in our resource-poor state in these days of bailouts and stimulus packages. Despite the fine work of the DPSC operating with limited time and resources, our obligation remains unmet to answer the call of Justice Stevens of the United States Supreme Court for "a dispassionate, impartial comparison of the enormous costs that the death penalty litigation imposes on society with the benefits that it produces."[38]

Notes

1. 408 U.S. 238.

2. See, Gregg v. Georgia, 428 U.S. 153, 182 (1976); Jurek v. Texas, 428 U.S 262, 271 (1976); Profitt v. Florida, 428 U.S. 242, 252-53 (1976); Woodson v. North Carolina, 428 U.S. 280, 288 (1976); Roberts v. Louisiana, 428 U.S. 325, 336 (1976).

3. Judge Gilbert S. Merritt, "The Death Penalty in Tennessee: Reforming a Broken System," Tenn. Bar Journal, Sept. 2005, p. 22-23, 26-27 at 22.

4. Wiles v. Bagley, Case No. 05-3719, decided April 14, 2009 (Martin, J. concurring). See, also, Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J. dissenting).

5. See, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Tennessee Death Penalty Assessment Report, An Analysis of Tennessee's Death Penalty Laws, Procedures and Practices ("The ABA Tennessee Study") (March 2007).

6. See, Id., Executive Summary at 9-38.

7. See, Id.

8. Without exception in the past few years, every capital defendant in Tennessee has been unable to afford the cost of retained counsel. Defense representation in Tennessee death penalty cases, therefore, has been and will be by appointed, government-funded counsel.

9. Report of the Tennessee Committee, Sixth Circuit Task Force (June 1987) at p. 3.

10. The Spangenberg Group, "A Study of the Indigent Defense System in the State of Tennessee" (December 1992) at p. 164.

11. Tennessee Bar Association, "Report to the Board of Governors and the House of Delegates of the Study Committee on Effective Representation of Counsel in Capital Cases" (December 1992) at p. 46-47.

12. See, Merritt Article at footnote 4, supra, at 22.

13. See, The ABA Tennessee Study at footnote 3, supra, at 16-18, 125-162.

14. See, State v. Ransom, Shelby County Criminal Court No. B57716 (Jan. 1, 1983)(sentence relief only); Teague v. State, 772 S.W.2d 915 (Tenn. Crim. App. 1988)(sentence relief only); Cooper v. State, 847 S.W.2d 521 Tenn. Crim. App. 1992) (sentence relief only); Johnson v. State, 1992 WL 210576 (Ct. Crim. App. 1992) (sentence relief only); Campbell v. State, 1993 WL 122057 (Tenn. Crim. App. 1993) (sentence relief only); Adkins v. State, 911 S.W.2d 334 (Tenn. Crim. App. 1994) (sentence relief only); Teel v. State, Marion County Circuit Court No. 1460 (April 12, 1995) (sentence relief only); Bell v. State, 1995 WL 113420 (Tenn. Crim. App. 1995) (sentence relief only); Goad v. State, 938 S.W.2d 363 (Tenn. 1996) (sentence relief only); Coker v. State, Sequatchie County Circuit Court No. 4778 (April 22, 1996) (sentence relief only); Brimmer v. State, 29 S.W.3d 497 (Tenn. Crim. App. 1998)(sentence relief only); Smith v. State, 1998 WL 899362 (Tenn. Crim. App. 1998)(conviction relief); Hurley v. State, Cocke County Circuit Court No. 4802 (Dec. 12, 1998) (sentence relief only); Taylor v. State, 1999 WL 512149 (Tenn. Crim. App. 1999)(conviction relief); McCormick v. State, 1999 WL 394935 (Tenn. Crim. App. 1999)(conviction relief); Wilcoxson v. State, 22 S.W.3d 289 (Tenn. Crim. App. 1999) (sentence relief only); Caughron v. State, 1999 WL 49906 (Tenn. Crim. App. 1999) (sentence relief only); State v. Bush, Cumberland County Circuit Court No. 84-411 (March 7, 2002) (sentence relief only).

15. See Austin v. Bell, 126 F.3d 843 (6th Cir. 1997)(sentence relief only); Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997)(conviction relief); Groseclose v. Bell, 131 F.3d 1161 (6th Cir. 1997)(conviction relief); Carter v. Bell, 218 F.3d 581 (6th Cir. 2000)(sentence relief only); Morris v. Bell, E. D. Tenn. No. 2:99-CD-00424 (May 16, 2002) (sentence relief only); Harries v. Bell, 417 F.3d 631 (6th Cir. 2005)(sentence relief only).

16. See, Strickland v Washington, 466 U.S. 668 (1984).

17. McFarland v. Scott, 512 U.S. 1256, 1259 (1994) (Blackmun, J. dissenting) (quoting from Strickland, 466 U.S. at 685).

18. Since 1960, did not execute anyone. Since 2000, Tennessee has executed five inmates: Robert Glen Coe (2000), Sedley Alley (2006), Phillip Workman (2007), Daryl Holton (2007), and Steve Henley (2008).

19. Robert Glen Coe, Sedley Alley, Daryl Holton,

20. Robert Glen Coe, Sedley Alley.

21. Phillip Workman.

22. Steve Henley.

23. The standard of care referred to here is the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003) ("ABA Guidelines"). Although not recognized by the Tennessee courts, according to the Sixth Circuit Court of Appeals and the United States Supreme Court as well as the criminal defense bar, the ABA Guidelines is the accepted standard of care for defense representation in death penalty cases. See, for example, Wiggins v. Smith, 539 U.S. 510, 524 (2003); and Haliym v. Mitchell, 492 F.3d 680, 716-17 (6th Cir. 2007).

24. See, TN 105 SB 1911, signed into law by Gov. Bredesen on June 27, 2007.

25. The entities statutorily authorized to be members of the DPSC were represented by the following individuals: Senate (Doug Jackson, Dewayne Bunch); House (Kent Coleman, Bill Dunn); Governor (Tom Lee, Stacy Garrett); State Attorney General (Elizabeth Ryan); DAGC (Al Schmutzer) TBA (Lorna McClusky); TACDL (Isaiah "Skip" Gant); DPDC (Mark Stevens); PCDO (Rich McGee); TJP (Bill Redick); NAMI (Sita Diehl); MFHR (Charles Strobel); and "You Have the Power" (Verna Wyatt).

26. The membership of the three DPSC subcommittees, was as follows:

Accuracy: Chairman Skip Gant, Sen. Dewayne Bunch, Al Schmutzer, Rich McGee and Stacy Garrett.
Fairness: Chairman Tom Lee, Elizabeth Ryan, Al Schmutzer, Rich McGee, Mark Stephens and Bill Redick.
Promptness: Chairman Bill Dunn, Verna Wyatt, Lorna McClusky, Charles Strobel and Sita Diehl.

27. The topics for investigation assigned to the three subcommittees, were as follows:

Accuracy: guilt/innocence issues; recording custodial interrogations; collection, preservation, and testing of DNA evidence; open-file discovery; eyewitness identification procedures; testimony from informants, snitches and accomplices; crime laboratories, medical examiners, and forensic experts; eligibility for capital punishment and the statutory aggravating circumstances; jury selection and jury instructions.

Fairness: defense services, data and information collection, prosecutorial professionalism, judicial independence and executive clemency.

Promptness: surviving victims of murder and executions; direct appeal and post-conviction review proceedings in death penalty cases; mental retardation, mental illness and the death penalty; discrimination: racial, geographic and economic.

28. Witnesses testifying before the DPSC included the following: Jennifer Smith, Tennessee Attorney General's Office; Bill Ramsey, member of the ABA's Tennessee Death Penalty Assessment Team that oversaw the preparation of the ABA Tennessee Study; David Raybin, author of the Tennessee Death Penalty Statute promulgated in 1977; Doug Wright, assistant director of research of the Tennessee Comptroller's Office; Debbie Inglis, general counsel to the Department of Corrections; Brad MacLean, Tennessee Justice Project; James "Wally" Kirby, executive director of the District Attorneys General Conference; Torry Johnson, Davidson County District Attorney General; Elizabeth "Libby" Sykes, Administrative Office of the Courts; Robert Spangenberg, director of The Spangenberg Group, a national indigent criminal defense research organization; Tom Sullivan, co-chair of the Illinois Commission to Study the Death Penalty and national expert on the recordation of custodial interrogations; Kelly Branham, National Victim Outreach coordinator; Don Dawson, director, Post Conviction Defenders Office; Malcolm "Tye" Hunter, executive director of the North Carolina Office of Indigent Defense; Dale Sims, Tennessee Treasurer's Office; Elizabeth Ryan, Tennessee Attorney General's Office; Dr. Pam Auble, Tennessee neuropsychologist; Judge Donald Harris, senior judge, 21st Judicial District; Judge Donald Acree, chairman of the State Trial Court Judges Association and judge of the 27th Judicial District; Tennessee Supreme Court Justice Gary Wade; Tennessee Supreme Court Chief Justice Janice Holder; Barry Scheck, director of the National Innocence Project. DPSC members who testified before the Promptness Subcommittee were Verna Wyatt, Charles Strobel, Bill Redick and Sita Diehl.

29. From among the 16 members of the DPSC, two dissented from the committee's Final Report: Al Schmutzer of the District Attorney Generals Conference and Elizabeth Ryan of the State Attorney General's Office.

30. See, footnote 20.

31. See the ABA Tennessee Study, footnote 5, supra, for an idea of the institutional changes that would be required.

32. Wardius v. Oregon, 412 U.S. 470, 474 (1973). See, 14th Amendment of the United States Constitution and Art. I,  § § 8 and 17 of the Tennessee Constitution.

33. See, The Spangenberg Group, "Resources of the Prosecution and Indigent Defense Functions in Tennessee" (2007). In fiscal year 2004-2005, The Spangenberg Group reports that the indigent defense of criminal defenses in Tennessee received $56.4 million in funding and the prosecution of indigent defense criminal cases received between $130 million and $139 million in funding, depending on whether you consider the percentage of indigent criminal cases compared to all criminal cases to be 75 or 80 percent. The prosecution, therefore, enjoyed a budget of two and one half times that available to the indigent defense bar in 2004-2005. Furthermore, the prosecution has an even greater advantage in "in kind" resources, which are not included in the prosecution budget and which includes the investigative and forensic expert resources available to the prosecution from all of the local law enforcement agencies in the ninety-five counties and the many municipalities in this state, as well as by the FBI, DEA, and other federal agencies, none of which are available to the defense.

34. TBA Study, footnote 10, supra, at 47-48.

35. The representatives of the prosecutors supported a very watered down legislative proposal to require recording of


WILLIAM P. REDICK is a Nashville criminal defense lawyer and death penalty opponent. A 1970 graduate of the University of Tennessee College of Law, Redick served as an assistant federal public defender for the Middle District of Tennessee and later founded the Tennessee Justice Project, where he served as director and president.