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Posted by: Letters of the Law on Aug 1, 2018

Journal Issue Date: Aug 2018

Journal Name: August 2018 - Vol. 54, No. 8

Fees for Appointed Counsel in Criminal Cases Should Be Raised

Our government was founded as a constitutional democracy; protecting human rights, which do not need to be created but which need to be respected, was a principal motivating factor of our founding fathers and mothers. They understood that creating a foundational document assuring these rights was only the first step and that the document would fail in its central purpose if there was no one to protect and enforce the rights contained therein. The criminal justice system is the place where the almost unlimited power and assets of the government, populated by fallible men and women, intersects most often with the lives of individual citizens. Because the arena is a court of law, the individual will always be mismatched without the services of a competent and zealous attorney. One person’s loss of his or her constitutional rights is devastating to that individual, but it also erodes the protections enjoyed by all citizens whether or not they ever see the inside of a criminal court room.

The criminal defense attorney, whose job, among others, is to insist that the courts recognize and protect the rights of the citizen accused, plays perhaps the most important role in the system. Competent attorneys are the only players in the game with both the duty and ability to accomplish this critical task.

Lawyers who are appointed to represent indigent defendants are private businessmen and women, with families to raise and bills to pay. That any of them choose to work for pennies on the dollar is a testament to the profession; that great numbers choose to do so speaks to their deep sense of duty and powerful belief in the constitutional rights they protect.

There are several reasons why such attorneys should be paid an appropriate amount for their services. A rational sense of fairness and recognition of the important role they play dictates that they be paid fairly. As in other aspects of our market economy, more pay would assure better quality attorneys taking appointed cases. Adequate pay is a powerful statement of recognition of the crucial duties such attorneys perform; failing to make adequate compensation available, conversely, is tantamount to an abandonment of those protections.

Our government has endured in historically unprecedented ways. But it will surely fail the day attorneys decline to fulfill their role in the justice system. As someone who has taken state and federal appointments for 37 years, I am proud to play the role I have accepted. But neither I nor any other attorney can be forced to accept these representations. The fees allowed in indigent representation must be raised to at least a level that reflects the need for motivated attorneys to continue, and I urge that the rates be raised substantially.

— John C. Cavett, Chattanooga

Editor’s Note: See story in this month's News section for related information.

Justice Anderson: To Act Justly, To Walk Humbly

Justice Anderson’s obituary is included in of this issue. Read more about him in the feature story the Journal wrote about him, right, and Justice A.A.Birch, upon their retirements in August 2006. Find it at www.tba.org/sites/default/files/journal_archives/2006/TBJ0806.pdf.

On five different occasions between 1990 and 2006, his peers on the Tennessee Supreme Court selected Knoxville’s E. Riley Anderson as their chief justice. A man of few words on the bench and off, Anderson’s humble, soft-spoken demeanor brought back memories of President Calvin Coolidge, himself a lawyer. Historians say “Silent Cal” is most often remembered by a single anecdote. At a dinner party, a woman in attendance was seated next to the president.  After being introduced, she revealed that she had made a large bet that she would be able to make him say more than two words. His response?  “You lose.” Courteous in the extreme, Anderson would never be so abrupt, but when he spoke, his fellow judges listened. 

In his role as “chief,” Anderson could have claimed a number of administrative accomplishments, but his modesty prevented that. For example, he proposed and the court adopted a carefully crafted rule permitting cameras in our courtrooms. Interpreting broadly Article 1, section 17 of our constitution, a provision guaranteeing “open courts,” our state’s highest court developed —with restrictions — news media standards designed to enhance public confidence in our system of justice. With the same basic objective, Anderson also asked his colleagues to adopt an educational program for high school students.  Called Supreme Court Advancing Legal Education for Students (SCALES), the program has become widely popular, garnering recognition throughout the country for its contributions to secondary education. In high schools all over Tennessee, lawyers representing “real” people involved in appeals to our supreme court argue “real” cases.  Hundreds of students each year continue to benefit from the experience.

While respectful of Alexander Hamilton’s Federalist Paper 78, insisting upon the independence of each of the three branches but mindful of opportunities to work in concert for the public good, Anderson was instrumental in the adoption of an election process providing Tennessee voters the means by which to assess the character and performance of its appellate judges, including those on his own supreme court. For the greater part of his term of office and afterwards, a Judicial Performance Evaluation Commission scrutinized the record of every appellate judge standing for re-election and published the results. This “Tennessee Plan,” while modified by a 2014 constitutional amendment, was designed to remove partisan politics from our appellate judiciary and continues to serve as model legislation for other states.  Further, Anderson’s work in the area of capital case management has served to restore confidence in the criminal justice system. Capital case appeals can extend for years in the state and federal systems before being concluded. During Anderson’s tenure and with the support of the court, this state created a Post-Conviction Defender’s Office and expanded the number of judges on the Court of Criminal Appeals, strategies intended to improve the quality of counsel and shorten the appeal process. Without citing chapter and verse, at least 16 additional Supreme Court initiatives could be attributed to his leadership.

All serve to enhance the level of service by the bench and bar to the people of this state.

Finally, in addition to his administrative role, Anderson took it upon himself to write some of the most difficult issues ever faced by our high court. Tennessee School Systems v. McWherter, which involved the public school funding question, and Planned Parenthood v. Sundquist, which addressed issues arising out of the landmark U.S. Supreme Court case of Roe v. Wade, are primary examples in the hundreds of cases he wrote over his 16 years on the high court.

Anderson’s wife, Pandy, observed that “his sweet smile and gentle manner” often hid the fact that he “agonized” over each and every decision, especially during his various terms as chief. “I knew that he was opposed to the death penalty,” she said, “but his devotion to the rule of law always overcame his personal beliefs.”

Early in his tenure, when some members of the court, perhaps frustrated by inordinate delays in the federal courts, appeared ready to declare Tennessee’s capital punishment statutes as unconstitutional “cruel and unusual punishment,” his “swing vote” made the difference. In the ensuing years, however, Anderson carefully analyzed each and every case involving a sentence of death, upholding when justified and, when not, setting aside the ultimate penalty. In 2000, Robert Glen Coe, convicted in 1979 and sentenced to death for first degree murder and rape, became the first Tennessean to be executed in 40 years — no reason for celebration, but illustrative of Anderson’s commitment to follow the written law. 

Like Adams and Jefferson before him, Chief Justice Anderson passed into eternity on the Fourth of July. The Book of Micah, Chapter 6, Verse 8, provides guidance for all jurists: “To act justly, … to love mercy, and to walk humbly ….  Justice when warranted, mercy when deserved, … humility always.” No one has been more faithful to this biblical mandate.

— Gary R. Wade, vice president and dean,
LMU?Duncan School of Law; and former
Tennessee Supreme Court justice