Tennessee: Operation Gideon

Tennessee won a battle with the Indigent Representation Task Force. In April the group will present their recommendations to the General Assembly. We can celebrate now, but there’s hard work to win this war.

All 99 House of Representative Seats are up in 2018.

Tennessee Representatives serve two year terms. It is on us, the people who care for the state’s poor and want to ensure their competent representation, to hold every legislator’s feet to the fire over these recommendations.

Their marching orders are very simple. You adopt the Task Force’s recommendations or you are out.

I will be watching which representatives adopt the recommendations and which reject. There will be a continually updated list on Mediation is Dead listing each accept and each reject. We will, as an organized force, eject every single candidate from office that rejects the recommendations.

Vote reject and you will be very uncomfortable. 

Technology is an amazing thing when it comes to influencing elections. Anybody with a smartphone can get on Periscope or Facebook Live and broadcast real news, in real time, to hundreds of thousands of people. Those Representatives who vote to reject the Task Force’s Recommendations will face quite a few bad days.

Imagine being a comfortably secure Tennessee representative, hosting a pancake breakfast for your constituency to spread your campaign platform. Suddenly as you’re speaking, a person with a smartphone pops up and asks you “Representative (x), you voted against the Task Force’s recommendations to provide better indigent defense in this state. Why do you hate poor people and the Constitution?”

Now imagine your answer and your response not just temporarily live streamed, but uploaded to YouTube for the world to enjoy.

People will go to town halls, Q&A sessions, ribbon cuttings, and more to put this question to any representative who rejects the Task Force’s recommendations.

Any gubernatorial candidate must endorse the Task Force’s recommendations to win. 

There’s a footnote on page 42 of the Task Force’s report regarding a peculiar member’s decision on raising compensation rates for court-appointed attorneys.

Task Force member Dwight Tarwater, who serves as counsel to Governor Bill Haslam, did not participate in the decision regarding the recommendation to change the hourly rate.

Why Dwight decided to abstain from this recommendation is unclear. It’s not as if his paycheck is in jeopardy should he decided to sit on the side of the Constitution. And his boss term limits in 2018, so it’s back to private practice or teaching somewhere.

The problem facing any candidate with an (R) on their names is the Republican governor’s private counsel decided to stay out of the decision to raise rates of pay for court appointed counsel. The lawyer to the businessman who promised up and down, honest to goodness, that he’d create more jobs in this state mysteriously “did not participate” in a measure that could create more jobs.

A rate raise to even $75 per hour means more attorneys can hire assistants and paralegals. That means more jobs right off the bat in the legal profession alone. It means the quicker payment of student loan debts. And it means bills get paid faster and children eat better at night. Finally, lawyers can do what they went to school to do and not have to drive for Uber or take side gigs to keep their practices alive.

If you’re running for a chance at the Governor’s mansion in Tennessee next year, and you run Republican, you’re going to need to address the Task Force’s recommendations now. You will need to endorse them. Show us you care or the mansion goes to the Democrats.

The fight begins today.

It’s time for those of us who give a damn about the mandate of Gideon to do something about it. I pissed off enough people on my own, and change came for the better. Now it’s time for the rest of us to put enormous pressure on the state’s House and Gubernatorial candidates to adopt the good in the Task Force’s hard work.

Join me. You won’t regret it.

The Task Force: Doing What Needed To Be Done

By now if you’re in or around Knoxville you’ve probably heard about my incendiary remarks to the Indigent Representation Task Force.  You may have read the Knoxville News-Sentinel article regarding Chairman William Koch’s attempts at backpedaling on a letter he sent me in February, claiming any attempts to raise rates of funding for indigent defense attorneys would be dead on arrival.  If you read Simple Justice or Fault Lines, you’ve seen the coverage of the “Listening Tour’s” stop and know I looked Bill Koch in the eye and told him the entire Task Force was a “sham,” designed to create the veneer of caring while doing as little as possible to fund indigent defense.  Someone had to do this, because none of you would.

When the legislature announced the “Indigent Representation Task Force,” everyone said “Great job” and held out hope things might actually change.  I have five years worth of material proving it wouldn’t, and I called the task force out on it. When they got upset and responded to me, I tried to be as civil as possible regarding the entire matter until I learned the amount of work the Task Force wanted to accomplish would amount to no change at all, since our state’s legislature cares more about criminalizing its citizens and saving money for taxpayers than ensuring every person accused of a crime gets a full, fair, effective defense.

When I prepared to speak on the issue, I had a few attorneys reach out to me and plead I don’t take the “Task Force” to task.  “Don’t do this,” said one attorney.  “This is Chief Justice Lee’s baby, and she’s really keen on making things better.”

Turns out that was complete bullshit, as evidenced by Jamie Satterfield’s ability to make the Tennessee Supreme Court Chief Justice double down on Bill Koch’s special brand of stupid.

I had to start my practice with indigent defense work.  If you don’t get an offer at a big law firm, or an offer at all, then you’re going to the trenches and practicing indigent defense.  It’s how you try cases.  It’s how you learn to be a better lawyer from the start.  You learn from your mistakes and you move forward, but the judges start to know you and what you’re capable of doing.  The DAs and States’ attorneys know more when you do indigent work, because they’ll see how you handle negotiations versus an outright plea deal.  It’s a cornerstone for young attorneys, and they get shafted for it.

Tennessee’s rates are only slightly better than Wisconsin’s for court-appointed work.  When you compare that with Dean Strang’s analysis, it amounts to kicking money to the State to prosecute your clients.  When you take that rate, and then you see your state attempt to cut the rate through asinine systems like preferential contract court appointed attorneys, then you start getting into a system that violates the law, the Constitution, and forces judges into violations of the Canons of Judicial Conduct.

In 2011, when the contract system was first floated, we stopped that through a national campaign.  In 2013, we shrugged, because we knew the State would do whatever the hell it wanted through the Administrative Office of the Courts.  All this time, people grumbled about how lawyers and their clients were getting screwed.  People would get on Facebook and leave a #RaiseTheRates hash tag.  They’d privately talk about studies the Tennessee Bar Association conducted.  They’d grumble.  But no one did a damn thing.

Why didn’t you have the guts to say something besides a quiet grumble to your brothers and sisters in the local Bar association?  Was it out of fear you might get an adverse ruling from a judge?  Were you afraid Dwight Tarwater might use his connections to Governor Haslam to make sure you were run out of business?  Was the thought of upsetting Justice Lee too much for you?  Or maybe you’re comfortable in a salaried job and just didn’t care what happened.  You agreed it was better to keep people as numbers instead of treating them as actual humans.

You were afraid of what might happen, and that prevented actual change.

Did you not see those in power would exploit your fear?  Did you not think for one second they wouldn’t exploit that by making you act civil to them and offer suggestions they wouldn’t even give the time of day?  They’re the ones holding the purse strings, and they already told you before this “listening tour” started there’d be no more funding.  Yet you held out hope, and were nice, because you feared them.

The Task Force needed someone to fear, consequences be damned, if the Sixth Amendment is to mean anything in the Volunteer State.  I took that cause up because I don’t want the younger lawyers starting in Juvenile Court or Misdemeanor Sessions getting shafted because of “taxpayer savings.”  So I orchestrated a plan, with the help of someone I’m honored and privileged to call a mentor and friend.  That plan embarrassed the Task Force nationally, and we’re not done yet.

Now I am the New Face of Fear for the Indigent Representation Task Force.  I guarantee you I have no invitations to dinner parties at Bill Koch’s house forthcoming.  Dwight Tarwater won’t be asking me for donations to Governor Haslam’s re-election campaign.  I probably will suffer a few economic consequences for calling “bullshit” on their sham campaign to make people think they care about your constitutional rights.

But they’re scared.  The public knows there’s deception afoot.  And when the public knows they’re being lied to, it can get pretty ugly for those lying.

I’ll keep hammering at this until change occurs, because Gideon means something to this angry, redneck, small town lawyer.

Brief Notes on Three Letters

Tonight I received three letters from a colleague of mine, one incredibly versed in the practice of law and with a dearth of experience in the profession.  He’s a bit of a firebrand, and one who tends to attract a good deal of controversy when he speaks up on an issue.  This time, it’s concerning indigent defense in Tennessee, a point near and dear to my heart.  That said, there’s a few things I want cleared up concerning these letters sent to a state Senator, one State Representative, and to Tennessee’s Indigent Defense Task Force.

  1. To Senator Overbey: I’d love to meet with you sometime and talk about what life is like learning to practice law absent any mentor or guidance.  I doubt you’ll ever take the time to learn what life is like from a trench lawyer’s point of view that came into the profession right when the law school bubble burst and jobs got scarce.  I’d love to get to know you, but I doubt very seriously you’ll take the time to have that conversation.

    That said, if you’re really that interested in talking, I definitely think someone on your staff needs to be ready to explain the comments my pal discussed when you poo-poohed the idea of raising indigent defense rates because it was an issue of “supply and demand,” and as long as there were enough hungry lawyers willing to take cases at a $40/hour rate then you wouldn’t be keen on raising rates of compensation for indigent defense attorneys.  I’ve seen Knoxville’s budgets for the last couple of years.  I’ve seen the State’s budgets for the last couple of years.  When you devote enough time to moving funds from a “diversity and inclusion” office at the University of Tennessee to putting “In God We Trust” stickers on cop cars, you’ve got the time and energy to come up with the funds for better pay on indigent defense.

You’ve got no one on your staff at the firm you run who relies on money from court appointed counsel.  One big reason I stopped attending Knoxville Bar Association “Barrister’s” events was listening to your Gay Street associates muse over whether they should enter their respective firms’ “Health and Wellness” programs for an extra $5,000 bonus.  You may write it off, but those of us who are running solo practices don’t.  Those of us who are in General Sessions on arraignment day or on Division Street looking for work are in agreement this isn’t a good look for you or your positions.

However “caustic” my language may be, I’m always willing to talk, Senator.  As long as we’re talking, we’re working for a solution.

2. With regards to Representative Lundberg, I have faith in his desire to see indigent defense bettered through the creation of the Task Force.  I want to make an unequivocal statement that at no point did he ever make any sort of statements that he wanted to “ruin my career” or otherwise.  I do take issue, respectfully, with the fact he’s got no one on the Task Force that has skin in the game when it comes to court appointed work.  I also take issue with his comments this Task Force was created to make sure “people with money hired lawyers instead of asking the state for a free one” and that he knew no rates of pay would ever raise for counsel in Tennessee. Finally, I take issue with the formation of the Task Force as currently constructed with no person relying on indigent defense work to keep the lights on.

3. The case my pal speaks of, in all fairness, was a stinker for him.  He’s a great lawyer in his own right, but sometimes we as lawyers have to attempt making chicken salad out of chicken shit.  That said, he’s right: I’ve had no mentors on which I could rely since I started practicing law, and have only recently managed to expand my sphere of influence and connections to a point where if I need help with an issue, or if I need to refer a client to someone, I can do that.  It took me five years to get there, but I’m grateful for the experience and the chance to become as resourceful as I am when dealing with cases.

4. I actually agree with a few of the points made by the Task Force, Chairman Koch, Representative Lundberg, and others.  There’s a problem with indigent defense funding when some counties hand out court appointed attorneys like candy and others stringently check to see if a person truly cannot afford reasonable attorney fees.

5. Despite my pal’s “brief” to the Task Force, I don’t take indigent cases anymore.  I think the work’s important, but I reached a point in my career where I had to make a decision between doing work I hated and not getting paid or actually doing work I loved and getting paid.  That jump meant going from taking every court appointed case I could find to spending more time marketing, networking, and learning about the way business actually works.

That said, we’re reaching a tipping point in this state when it comes to indigent defense.  New Orleans is the proverbial canary in the coal mine when it comes to this crisis.  Right now they’re so strapped for effective representation the Public Defender’s office has stopped taking cases.  That led to one judge releasing several people accused of violent crimes and a suit by the ACLU.  This is an issue to which the State of Tennessee cannot, and must not turn a blind eye.

To my readers in Knoxville or the surrounding areas: I’ll be speaking at the University of Tennessee, Room 132, starting at 11:00 AM on Friday, May 20 about the big issues facing the Task Force.  If you’re a lawyer reading this, you might want to consider coming to see the Task Force explain why rates of pay will never get raised.  If you’re a non-lawyer, you might want to attend to see just how the State views you if you’re charged with any offense.  It’ll be an interesting discussion.