TBA Law Blog

Posted by: Jacqueline Dixon on Feb 1, 2013

Journal Issue Date: Feb 2013

Journal Name: February 2013 - Vol. 49, No. 2

Indigent Defense System Needs Adequate Funding

The 50th anniversary of the United States Supreme Court’s decision in Gideon v. Wainright occurs on March 18. This landmark ruling recognized that the 6th Amendment to the federal Constitution, which provides that in all criminal prosecutions the accused has the right to assistance of counsel, is made obligatory on the states by the 14th Amendment. This means that an indigent defendant facing a criminal prosecution in state court has the constitutional right to have counsel appointed.

Clarence Earl Gideon was a 51-year-old drifter who was charged with the felony of breaking and entering with intent to commit a misdemeanor after someone broke into a Panama City, Fla., pool hall and stole alcohol and change from a cigarette machine and juke box. Mr. Gideon was poor. Since he could not afford to hire an attorney, he asked the court to appoint one for him. The court refused because, at that time, Florida only provided an appointed attorney in death penalty cases. Mr. Gideon represented himself, was found guilty and sentenced to five years in prison. He handwrote his petition to the U. S. Supreme Court, wherein he plainly stated: “The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused.” After the Supreme Court agreed to hear his case, Abe Fortas was appointed to represent him, and the rest is history. 

While the ruling in Gideon insured the right to counsel even to those who could not afford to hire counsel, that right has now morphed into the right to “effective assistance” of counsel. Effective assistance requires representation by counsel that is trained and experienced in representing those charged with crimes. Who has the responsibility to see that the promise of Gideon is realized? What is Tennessee doing to fulfill that constitutional guarantee?

I have heard U. S. Attorney General Eric Holder speak, and, as he has on numerous occasions, he emphasized the need to reform the indigent defense system if the country is to uphold its promise of “equal justice for all.” When he received the Brennan Legacy Award in November 2009 and spoke at the Brennan Legacy Awards Dinner, he specifically mentioned Tennessee in his speech when he focused on the necessity of reforms for indigent defense and the current state of public defender networks in this country. He noted that in our state, a county public defender’s office had six attorneys handle more than 10,000 misdemeanor cases in 2006, which meant lawyers could spend an average of just under an hour per case. General Holder then commented that “high caseloads leave even those lawyers with the best of intentions little time to investigate, file appropriate motions, and do the basic things we assume lawyers do.”

There are two means by which indigent defendants obtain counsel in Tennessee. Since 1989, there has been a statewide public defender system, and this is the first line of defense for the indigent defendant. The TBA is properly proud that it led the effort to establish that system. If the public defender’s office has a conflict of interest that prevents representation or if the public defender is able to make a clear and convincing showing that adding the appointment to his or her current caseload would prevent the rendition of effective representation, the judge appoints private counsel. Tennessee Supreme Court Rule 13 sets forth the framework for appointment, qualifications, and compensation of private counsel for indigent defendants. The hourly compensation rates have not changed since 1994. Payments to attorneys in all matters except death penalty cases are limited to $40 an hour for out-of-court work and $50 per hour for in-court work and are capped at either $1,000, $2,000, or $3,000, depending on the severity of the charges against the accused. The $3,000 maximum may be waived in certain first-degree murder cases. The caps often mean that an appointed attorney is paid a maximum of $3,000 for days of preparation and hearings — even a jury trial!

The challenges our state faces in providing indigent representation are far from new. Nearly fifty years ago, U.S. Supreme Court Justice Hugo Black wrote, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Criminally accused individuals are not popular with anyone, and especially not with our legislature, so providing and increasing funding for their defense is a hard sell. There have been repeated petitions filed since 1994, and currently there is one pending before our Supreme Court that was filed by the Tennessee Association of Criminal Defense Lawyers (TACDL) in 2011, asking the court to increase the compensation rates set forth in Rule 13. Of course, to do this, there would be a need for more funding from the legislature.

As lawyers, we should understand these issues better than anyone. Tennessee has a constitutional duty to ensure the right to effective assistance of counsel. When defendants fail to receive effective legal representation, costly mistakes are made that can take years to correct. Lawyers on both sides of the case can be forced to needlessly spend time dealing with procedural and other errors — which could have been avoided with a properly trained lawyer. Even worse, victims can be forced to endure retrials and innocent people can be wrongfully incarcerated.

We as a bar association will continue to speak out to our legislators about adequate funding for our indigent defense system — whether it be for increased compensation rates for private attorneys or more funding for public defenders. I encourage you to make contact with your legislators about this issue.

And Now, For a Little Chocolate

Feb. 14 is Valentine’s Day, and it would not be complete for most of us without chocolate. This cake is good on its own or topped with ice cream and chocolate sauce.

Chocolate Brownie Loaf

Image ©iStockphoto

1 ¼ cups all purpose flour
1 ¼ cups sugar
6 tablespoons cocoa powder  
1 tablespoon instant coffee granules
1 teaspoon baking soda
¾ teaspoon salt
1 cup toasted walnuts or pecans, chopped
1 ½ cups sour cream
1 egg
1 ½ teaspoons vanilla extract
4 tablespoons unsalted butter, melted and cooled

Preheat the oven to 350. Spray a 9 x 5 loaf pan with nonstick spray. Line the bottom and sides of the pan with parchment paper or waxed paper and spray paper with nonstick spray.

In a medium bowl, with a whisk, mix together the flour, sugar, cocoa, coffee, baking soda and salt until well blended. Stir in the nuts. In a large bowl, whisk together the sour cream, egg, vanilla and melted butter. Add the dry ingredients to the liquid ingredients and stir with a rubber spatula until just blended. Pour the batter into the prepared pan and spread evenly.

Bake the cake for 60 to 70 minutes, or until a tooth pick inserted into the center comes out clean. Leave the cake in the pan and cool on a rack for 10 minutes, then remove the cake from the pan, peel off the paper, and finish cooling the cake on the rack. When cool, wrap the cake with plastic wrap, then with aluminum foil or place it in a tightly covered container. Let the cake stand at room temperature for a day before slicing. The cake will keep, tightly covered, for a week or more.

Jackie Dixon TBA President JACKIE DIXON is a partner with Weatherly McNally & Dixon PLC in Nashville.