Fairness Committee Focuses on Defense

The Fairness subcommittee of the Tennessee Death Penalty Study Committee met for several hours yesterday in a thoughtful, yet at times frustrating, discussion on the importance of creating an independent authority in Tennessee to oversee capital defense services. Since its inception, the Death Penalty Study Committee has heard over and over again how the issue of inadequate defense is not only unfair to defendants but also increases the length of the process and costs of the death penalty because of the ensuing appeals.

The Fairness subcommittee whose membership includes Rich McGee (appointed by the Post Conviction Defenders’ Commission), District Attorney General Al Schmutzer (DA’s Conference), Bill Redick (Tennessee Justice Project), Mark Stephens (Public Defenders’ Conference), Elizabeth Ryan (Attorney General), Sen. Doug Jackson, Rep. Kent Coleman and subcommittee chair, Tom Lee (Governor), all of whom are attorneys, agreed on some important points concerning the creation of an independent body to oversee capital defense services in Tennessee.

All the members agreed with Tom Lee that “the public good is protected and enhanced by better lawyers and that both prosecutors and defense attorneys prefer to try cases when all the participating attorneys are prepared and competent.” Members also agreed that compensation for appointed counsel in capital cases is extremely low, and General Schmutzer stated that “defense attorneys should be paid what they are worth,” which is currently not the case.

In Tennessee, the lead appointed counsel in a capital cases receives $100 per hour in front of the judge and $60-80 on work outside of the courtroom. In contrast, an attorney in private practice can make anywhere from $200-350 per hour on domestic or civil rights cases which don’t involve someone living or dying. Many times a defense attorney appointed to a capital case will actually lose money in defending the client, and such service can prevent a hardship on attorneys in small offices.

Members also agreed that defense attorneys should not have to meet with judges “ex parte” (privately in the judge’s chambers) to ask for the resources they need to put on their defense as is the case today. Prosecutors do not have to go to judges to ask for the funds to put on their cases, and the defense shouldn’t have to either. Furthermore, everyone agreed that standards for attorneys defending clients in capital cases should be much higher than the current standards which are very basic and do not ensure an attorney has the ability, training, or preparation for the complexities of a death penalty case. In North Carolina, which has such an independent body overseeing its indigent defense services, defendants have been much more willing to plead guilty because they have more faith that their attorneys are actually competent and have their best interests in mind. In fact, in 2007 in North Carolina, there were fewer than 20 capital trials which saves taxpayers money and victims’ families the trauma of lengthy trials.

However, another important function of an independent body to oversee defense services in Tennessee would be to have the authority to recruit, monitor, and appoint defense counsel in capital cases, ensuring that competent, qualified lawyers are available to defend these cases, particularly as public defender caseloads in this state are already unmanageable.

General Schmutzer could not see the benefit of such a role for an independent body and adamantly stated that the appointing of defense attorneys should fall to the judges in the local districts. But, the reality that was stated over and over again by other members of the subcommittee, including Sen. Jackson, is that such a responsibility is not the primary role of the judge. Members noted that judges are very busy and don’t have time to track down defense attorneys who are capable and willing to represent capital cases, a very specialized kind of case. Therefore, what often happens is that attorneys who are not very skilled but need the work will volunteer to take cases, or judges will call an attorney asking her to serve which may put her in a bind as she feels obligated do what the judge asks even if she does not have the time.

Senator Jackson firmly believes that the current process for selecting defense counsel in capital cases is “haphazard” at best and needs a structure and a body whose job is to recruit and appoint competent attorneys who will monitor services and ensure that defendants are getting fair representation. Again, if, as stated by both prosecutors and defense attorneys during the meeting, it benefits everyone to have the best attorneys representing both sides at trial, how can such an appointing authority be anything but an improvement over the current system where appeals are often rightly granted on “inadequate representation” claims which ultimately cost the state far more in time and money the long run.

Though time and money are important, Senator Jackson reminded the subcommittee yesterday that, “first and foremost, the concern must be with fairness of the death penalty system because though a majority of Tennesseans (including Sen. Jackson) support the death penalty, they want it to be fair and accurate and efficient.”

Tom Lee mused about how citizens would react if the civil courts functioned in the same way as the courts do in capital cases. He wondered how he would feel if he were being sued in court over a civil matter like a car accident, and at his appearance in court, the judge hearing his case appointed his attorney and then told his attorney exactly how much he/she could spend on his defense? Would that give him confidence that he was getting a fair hearing in court? Probably not. When a person’s life is on the line, shouldn’t we do everything in our power to ensure that a defendant is at least getting a fair hearing from the beginning?

The creation of an independent authority to oversee capital defense in Tennessee is a common sense approach to ensure defendants are adequately represented from the beginning, limiting the appeals and costs of the system, and providing Tennesseans with the confidence that the system is as fair as possible. Let’s hope the Committee continues to run with this idea!

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