A snappy weekly newsletter from the lawyers at Horwitz Law, PLLCsummarizing the week’s decisions from the Tennessee Court of Appeals.
January 1–5, 2024
“Extremely intoxicated, hostile, and belligerent” Army lieutenant makes a series of increasingly poor decisions. After a night out drinking at a bar during a bachelor party, he removes his shirt, places it on the ground, and starts urinating on it. He then gets himself arrested and charged with public intoxication, resisting arrest, and assault on a police officer. Afterward, he engages in extensive Facebook messenger correspondence with his “companion” from the evening—distinct from his “then-girlfriend, now wife”—in an attempt to ascertain what happened, and she tells him exactly how intoxicated, aggressive, and violent he was. The Secretariat of bad judgment then sues his arresting officers “for defamation and negligence per se” (claiming, among other things, “that he was not intoxicated, aggressive, or violent when he was arrested”). During the litigation, he repeatedly conceals and otherwise lies about his damning correspondence with his “companion,” which he alternately claims did not exist, he forgot about, his wife told him to delete, and/or was work product created at the direction of his attorney. Davidson County Circuit Court: Your “blatant prevarication and misconduct warrants the most severe sanctions,” so you are ordered to pay over $60,000 in fees and costs, and all of your claims are dismissed with prejudice. Tennessee Court of Appeals: And those sanctions “were directly related to the discovery abuses and were not excessive under the circumstances.” (DAH)
After Husband and Wife divorce, Wife sues Husband based on a provision of their marital dissolution agreement that says she gets half the equity in their formerly shared home “when the house sells.” Chancery Court for Montgomery County: Wife gets half the equity as of the date of the Parties’ divorce in 2019. Tennessee Court of Appeals: No, wife gets half the equity as of the date of the house’s sale in 2023. But Husband gets an unjust enrichment credit for the twenty-two consecutive monthly payments that he has already paid Wife based on their alleged oral agreement about the amount of her equity interest, even though the agreement violates the statute of frauds. This case is otherwise remanded so Husband can introduce evidence about improvements and other expenditures he made and so Wife can introduce evidence that she’s entitled to reimbursement for her rent because Husband kicked her out before the house was sold. Also, the relevant provision of the Parties’ “not a model of clarity” MDA—which resulted from “the parties’ self-drafting of a form document they obtained from an unknown source”—is internally inconsistent, so this entire opinion is declared non-citable. (DAH)
Homeowner contracts with Contractor to build a “log home.” Contractor contracts with Subcontractor to provide some labor and materials. Subcontractor: I did more than $60,000 of work for which Contractor never paid me, so I’m entitled to payment from Homeowner, who flipped the property (which cost $382,000.00 to build) for a cool $1.5 million after construction was completed. Tennessee Court of Appeals: Not yet you aren’t. Although Tennessee law allows unpaid subcontractors to file unjust enrichment claims against property owners, they have to exhaust their available remedies against the contractors with whom they were in privity first, and getting a default judgment against the deadbeat contractor without demonstrating that you can’t collect on it isn’t exhaustive enough. (DAH)
Company sues Employees for holding events using the company’s name and failing to remit proceeds. During the litigation, Employees’ counsel “inadvertently included”—twice—a privileged email from one of the Employees in his trial court filings. Employees’ counsel then continues to file the privileged email in the court record and “discusses the substance and contents of the email at length” at least twice more after that. Employees: Company shouldn’t get to use the privileged email, particularly because Company “trap[ped]” us into making a bunch of apparently false statements using information gleaned from it. Tennessee Court of Appeals: It’s true that Tennessee Code Annotated § 23-3-105 subjected the email to the attorney-client privilege. But Tennessee Rule of Evidence 502 requires privilege holders to take “reasonable steps to prevent disclosure,” and repeatedly filing and citing the email was definitely not that, so the email is now admissible. The waiver of privilege is limited to the email alone, though; it doesn’t extend to “any undisclosed communications concerning the same subject matter.” (DAH)
Company A initiates arbitration proceeding against Companies B and C, wins, and then petitions the Davidson County Chancery Court to confirm the arbitration award. Companies B and C: Hold on, we didn’t even know the proceeding existed until we received the motion to confirm the award! Davidson County Chancery Court: That’s too bad; you all objected too late, so the arbitration award is confirmed. Tennessee Court of Appeals: Actually, because “absence of notice may warrant vacatur under the [Federal Arbitration Act],” the award is vacated for now, in part because Company A failed to include a ton of information in the appellate record that would allow us to determine when notice was provided. On remand, the trial court must determine both whether one of the companies even agreed to arbitrate and when the companies actually received notice of the arbitration, too. (DAH)
Father and Stepmother sue to terminate Mother’s parental rights over Child. Father/Stepmother: Child lives with us, and Mother hasn’t seen her or supported her in years, among other issues. Chancery Court for Sumner County: And those are both valid grounds for termination, but Tennessee’s termination of parental rights statutes recognize “that terminating an unfit parent’s parental rights is not always in the child’s best interests,” and it is not in Child’s best interest here. Tennessee Court of Appeals: “Upon review of the evidence, we agree with the trial court’s assessment and findings.” (Editorial note: Mother nearly had her parental rights terminated because she waived multiple potentially valid defenses, which Tennessee law really should not allow.) (DAH)
A victory for Horwitz Law, PLLC client Theresa Baldwin! In 2022, Ms. Baldwin was sued for a cornucopia of speech-based tort claims after she criticized two adults (one of them an oft-sanctioned lawyer) who took her minor daughter into their home and elsewhere against Ms. Baldwin’s instructions to stay away. And because—after more than a year of litigation—the Plaintiffs failed to establish any element of their various claims, the Tennessee Public Participation Act means that Ms. Baldwin wins and gets to recover her legal fees. Read the Circuit Court of Robertson County’s Order Granting Defendant’s Tenn. Code Ann. § 20-17-104(a) Petition to Dismiss the Plaintiffs’ Amended Complaint Pursuant to the Tennessee Public Participation Act here: https://horwitz.law/wp-content/uploads/2022-247-Order-Granting-TPPA-Petition.pdf.
Pound’s essential
premise was that, by the turn of the twentieth century, the American justice
system had devolved into little more than a game that focused not on adjudicating
controversies on their merits and meting out judgments that substantive justice
compelled, but looked instead to whether litigants had successfully navigated procedural
rules that had little bearing, if any, upon the actual case at bar. Pound decried:
“The inquiry is not: What do substantive law and justice require? Instead, the inquiry is: Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of justice awards new trials, or reverses judgments, or sustains demurrers in the interest of regular play.”
None of this, of course, was to suggest that procedural rules are not important. Indeed, to the contrary, all agree that procedural rules—such as fair notice and a meaningful opportunity to be heard—are essential to protect substantive rights.
Frequently, however,
procedural rules are distantly removed from substantive protections. Under such circumstances—particularly when a
rule is unclear or an opposing litigant has not been harmed—the notion that
someone should lose their day in court due to technical non-compliance is corrosive
to the justice system’s fundamental purpose: To adjudicate the merits of controversies
and dispense justice based on litigants’ substantive rights.
Frustratingly, despite
many essential improvements over the past century that aimed to reform the
justice game, many judges’ disinterest in providing substantive justice
doggedly persists. Kennerly’s article
provides some recent examples in federal court, but Tennessee is a similar
offender. Tennessee’s intermediate
appellate courts, in particular, have long jumped to dismiss substantive claims
based on procedural technicalities that have little or no relation to litigants’
substantive rights—something that the Tennessee Supreme Court has repeatedly
intervened to chastise over, and over, and over again.
Consider, for instance, the Court of Appeals’ 2014 opinion in Arden v. Kozawa—a wrongful death case that the Court of Appeals dismissed because the plaintiff had delivered notice to an opposing party using FedEx instead of USPS (the Tennessee Supreme Court sensibly reversed). Or this case from a few weeks ago, where the Court of Appeals declined to consider a litigant’s argument on appeal because—although the issue was raised in the litigant’s briefing—“an issue may be deemed waived when it is argued in the brief but is not designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Alternatively, consider the host of hyper-technical dismissals in Health Care Liability Act cases for which this author has blasted the Court of Appeals for “undermin[ing] the fundamental purpose of the civil justice system as an institution.” None of these opinions is even remotely concerned with whether the substance of a litigant’s claim has merit. Instead, the judgments turn on whether the litigants involved adhered to substantively vacuous “rules of the game.”
The Tennessee Court of Criminal Appeals, for its part, is just as guilty. Almost daily, defendants are treated to dismissive rulings based not on the merits of their claims, but based on (often unevenly applied) procedural flaws—waiver and abandonment, failure to preserve issues or exhaust remedies, failure to assert their claims quickly enough, and the like.
Perhaps no case better illustrates the Court of Criminal Appeals’ commitment to the justice game than this August 2018 case. There, a defendant sought to terminate his supposedly outstanding, decades-old court costs. He specifically invoked Tennessee’s ten-year statute of limitations for collecting on judgments as a defense to a District Attorney’s sudden and plainly retaliatory efforts to collect costs as many as twenty-six years after the fact. Unfortunately, the trial court dismissed the defendant’s claim on procedural grounds that both parties essentially agreed were wrong—finding that although the defendant had been served with multiple writs to execute on the judgments at issue, “no pending civil action existed” to collect on them. Thereafter, the defendant appealed.
In a series of previous cases—every single one of them involving a pro se litigant—the Court of Criminal Appeals had deprived similar litigants of their day in court and held that a denial of a motion to terminate court costs cannot be appealed under Tenn. R. App. P. 3(b), which governs criminal appeals.[1] Accordingly, the defendant made clear over and over again in his briefing that he was filing his appeal under Tenn. R. App. P. 3(a)—which governs civil appeals and guarantees litigants an appeal “as of right”—instead. The defendant’s argument also made particularly good sense in the context of his case, given that Tennessee law provides that taxes, costs, and fines that arise out of criminal cases are collectable “in the same manner as a judgment in a civil action.”[2] As an alternative to considering the merits of his appeal under Tenn. R. App. P. 3(a), though, pursuant to longstanding precedent that provides that the relief sought by a pleading—rather than the title assigned to it—controls its treatment, the defendant asked the Court of Criminal Appeals to convert his appeal into a catch-all writ of certiorari instead if Tenn. R. App. P. 3(a) did not afford him a right to appeal after all.[3]
In a cursory, four-page opinion, the Court of Criminal Appeals dismissed the defendant’s appeal on the basis that Tenn. R. App. P. 3(b)—Tennessee’s criminal appeal provision—did not allow it. (Tenn. R. App. P. 3(a) was never mentioned.) The Court also declined the defendant’s request to adjudicate the merits of his appeal as a writ of certiorari—even though the same court routinely extends the government that benefit under similar circumstances.
Given that—as noted above—the defendant had repeatedly indicated that he was appealing under Tenn. R. App. P. 3(a), not Tenn. R. App. P. 3(b), one reading of the Court of Criminal Appeals’ opinion might be that the Court misread the defendant’s claims. Alternatively, a less charitable conclusion might be that—in its haste to dismiss yet another defendant’s appeal on purely technical procedural grounds—the Court of Criminal Appeals didn’t read them at all.
Laudably, the
Tennessee Supreme Court has frequently served as a bulwark against hyper-technical
procedural dismissals of this sort. Consequently,
time and again, it has intervened to reverse and remind Tennessee’s intermediate
appellate courts that courts must not “exalt[] form over substance to deprive a
party of his day in court and frustrat[e] the resolution of the litigation on
the merits.”[4]
Encouragingly, Kendall Southall’s appeal to the Tennessee Supreme Court, in which he asks the Court to order the Court of Criminal Appeals to adjudicate the merits of his claims, still remains under review. For the sake of substantive justice—rather than just the sport of “the justice game”—everyone should hope that the Tennessee Supreme Court intervenes and affirms, yet again, the judiciary’s obligation not to “exalt form over substance”—something that our Supreme Court has repeatedly held that it “refuses to do.”[5]
[1]See State v. Johnson, 56 S.W. 3d 44, 44 (Tenn. Crim. App. 2001)
(“Christopher Joseph Johnson, pro se.”); State v. Hegel, No.
E2015-00953-CCA-R3-CO, 2016 WL 3078657 (Tenn. Crim. App. May 23, 2016) (“James
Frederick Hegel, pro se”); Boruff v. State, No. E2010-00772-CCA-R3CO,
2011 WL 846063 (Tenn. Crim. App. Mar. 10, 2011) (“Douglas Boruff, pro
se”); Hood v. State, No. M2009-00661-CCA-R3-PC, 2010 WL 3244877
(Tenn. Crim. App. Aug. 18, 2010) (“Jonathon C. Hood, Clifton, Tennessee,
pro se”); Lewis v. State, No. E2014-01376-CCA-WR-CO, 2015 WL
1611296 (Tenn. Crim. App. Apr. 7, 2015) (“Stephen W. Lewis, Wartburg,
Tennessee, Pro Se”).
[3]See, e.g., Norton v. Everhart, 895
S.W.2d 317, 319 (Tenn. 1995) (“the trial court should have treated the petition
as one for a writ of certiorari. It is
well settled that a trial court is not bound by the title of the pleading, but
has the discretion to treat the pleading according to the relief sought.”); Estate
of Doyle v. Hunt, 60 S.W.3d 838, 842 (Tenn. Ct. App. 2001) (“A trial court is
not bound by the title of a pleading, but rather the court is to give effect to
the pleading’s substance and treat it according to the relief sought
therein.”); Hill v. Hill, No.
M2006-01792-COA-R3CV, 2008 WL 110101, at *3 (Tenn. Ct. App. Jan. 9, 2008)
(same).
[4]Jones v. Prof’l Motorcycle Escort Serv.,
L.L.C., 193 S.W.3d 564, 573 (Tenn. 2006).
See also In re Akins, 87
S.W.3d 488, 495 (Tenn. 2002) (“we . . . avoid exalting form over substance.”); Childress v. Bennett, 816 S.W.2d 314,
316 (Tenn. 1991) (“it is the general rule that courts are reluctant to give
effect to rules of procedure which seem harsh and unfair, and which prevent a
litigant from having a claim adjudicated upon its merits”); City of Chattanooga v. Davis, 54 S.W.3d
248, 260 (Tenn. 2001) (overruling a prior decision that “exalted technical form
over constitutional substance in a manner rarely seen elsewhere.”); State v. Henning, 975 S.W.2d 290, 298
(Tenn. 1998) (“To hold otherwise would exalt form over substance.”); Henley v. Cobb, 916 S.W.2d 915, 916
(Tenn. 1996) (“it is well settled that Tennessee law strongly favors the
resolution of all disputes on their merits”); Norton, 895 S.W.2d at 322 (Tenn. 1995) (emphasizing “the clear
policy of this state favoring the adjudication of disputes on their merits”).
On Wednesday evening, News Channel 5 broke the unspeakable outrage that a judge in White County, Tennessee, had signed a standing order providing for a 30-day “reduction” in jailtime if an inmate submits to sterilization. According to the report, 70 inmates have already accepted this “eugenics discount” in exchange for early release. Somehow, each aspect of the story is even more shocking than the next.
To begin, General Sessions Judge Sam Benningfield—the mastermind behind White County’s backdoor eugenics program—defended his efforts without any apparent sense of shame, telling Channel 5’s Chris Conte that: “I hope to encourage [inmates] to take personal responsibility and give them a chance, when they do get out, to not to [sic] be burdened with children.”
Even worse, Judge Benningfield’s standing eugenics order has apparently been on file since May 15, 2017—meaning that an untold number of lawyers, judges, doctors, and law enforcement personnel have either acquiesced to it or simply turned a blind eye in the face of a policy that the Rome Statute of the International Criminal Court designates as a crime against humanity.
To be absolutely and unequivocally clear: eugenics is illegal. In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom. Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing. Whether a defendant has submitted to sterilization is not among them.
The framing of Judge Benningfield’s eugenics program as a “voluntary sentencing reduction” is also deeply troubling. It is not. Simply stated: In White County, Tennessee, any inmate who refuses to be sterilized is punished with an additional 30 days in jail.
Such a program is profoundly coercive—especially for defendants convicted of minor crimes who may avoid jail time entirely if they submit to sterilization. Anyone familiar with the criminal justice system knows that this length of time is sufficient to send a person’s life into disarray, because an extra month in prison can and frequently does result in job loss, loss of one’s home, or loss of one’s children. Of note, under Tennessee law, everyone is also at risk of being imprisoned for 30 days at any time for even the slightest traffic infraction based on law enforcement’s discretion.
In addition to its rank illegality and immorality, it goes without saying that using the coercive power of the state to promote sterilization also has severe potential for abuse. As a historical matter, eugenics programs always target disfavored minorities—from Jews in Nazi Germany to black men in Tuskegee, Alabama. Firmly in keeping with this tradition, Judge Benningfield’s eugenics program is reserved for White County inmates and apparently targets those suffering from drug addiction. In this regard, it is no less disgusting.
Judge Benningfield’s eugenics program is an outrage. He need not serve on the bench any longer, and he need not keep his law degree any longer. Infuriatingly, this also is not the first time that an officer of the Court who has been charged with upholding the law has implemented a (very recent) sterilization program in Tennessee—a fact that is similarly unconscionable in its own right. If Tennessee’s administrators of the practice of law took a fraction of the effort that they’ve expended trying to prevent qualified immigrants from taking the bar exam and redirected it toward removing people like Judge Benningfield from the profession, perhaps further abuses like this would be avoided.
Compounding the outrage is that nobody has yet filed suit over Judge Benningfield’s eugenics program during the two months that it has been in effect. Whether initiated by the ACLU, a public defender, or a private defense attorney, such a lawsuit needed to be filed yesterday. If you or a client of yours is affected by White County’s eugenics program and you want assistance pursuing the case, please feel free to contact me at [email protected]. I will gladly take the case pro bono and donate the proceeds to the Holocaust Museum and the Tuskegee History Center. A program like this violates what the United States Supreme Court has declared to be “one of the basic civil rights of man,” and nobody—least of all the Bar—should tolerate it.
As voters and thought leaders of all political stripes move toward consensus that the American experiment with mass incarceration has failed, bipartisan coalitions aimed at reforming the criminal justice system have emerged in cities and states across the nation. The localized nature of this movement is hardly a surprise, given that – as the Washington Post has noted – “most criminal-justice policy happens at the state and local level.” In addition to the fact that state and local prisons and jails account for the overwhelming majority of the incarcerated population, reform of any kind generally begins at lower levels of government before coming to pass in the (in)famously deliberate halls of the United States Congress.
Nashville, for its part, is no stranger to the influences of the criminal justice reform movement, as indicated by the recently-announced partnership on criminal justice reform between the ACLU, the Beacon Center, the Chamber of Commerce, and Goodwill Industries. However, perhaps the most telling evidence that voters are beginning to demand sensible criminal justice policies is that policymakers have begun to campaign on them. For example, in recent election cycles, Metro Councilmembers, the District Attorney, and the Mayor have all advanced platforms specifically dedicated to criminal justice reform in an attempt to curry favor with an eager electorate. This report card attempts to grade these officials’ performances since taking office based on their campaign commitments.
1. The Metro Council: C
Since Nashville’s 40-member Metro Council took office in 2015, few would argue that criminal justice reform has been a centerpiece of its agenda. A notable exception to that, however, was the Council’s successful and resoundingly popular push to help steer low-level marijuana offenders away from the criminal justice system. Rather than having marijuana users arrested and prosecuted, the first-of-its-kind bill, spearheaded by District 35 Council Member Dave Rosenberg, empowers law enforcement to issue offenders civil fines or require community service instead. (Note: contrary to a a misguided opinion by the Attorney General’s office, police officers and prosecutors have always enjoyed discretion not to pursue charges at all, and the bill does not constrain law enforcement or conflict with still-applicable state law in any way.) The Council’s discretionary decriminalization bill was also supplemented by laudable efforts to track officers’ use of their newfound discretion for the purpose of “prevent[ing] potential bias from playing out with the new law.”
All-in-all, however, Metro Council Members have largely devoted their attention elsewhere. This reality is disappointing, since the consequences of criminal justice policy are absolutely devastating to those affected by it. Additionally, voting to militarize the local police force through a supplemental purchase of $1 million in ballistic armor (drawn from a reserve fund) while appropriating a fraction of that amount to fund critical programs like Legal Aid represents a disappointing reflection of the city’s criminal justice priorities.
Individual Council Members who are due credit for taking the lead on criminal justice reform efforts and attempting to make them a priority include Dave Rosenberg (District 35), Freddie O’Connell (District 19), Fabian Bedne (District 31), and Bob Mendes (At-Large). Overall, however, the Metro Council gets a C.
2. The District Attorney: B+
In 2014, Nashville District Attorney Glenn Funk campaigned for office under the slogan that he knew “the difference between a bad person and a good kid in trouble.” Since then, local media coverage of his tenure has largely been dominated by hiring and firing decisions, disputes about the ethics of a release-dismissal agreement and a pension arrangement, and other matters unrelated to substantive criminal justice policy. Lost amid the coverage, however, has been any meaningful assessment of Funk’s substantive criminal justice reform efforts, which are significant.
“Good public policy demands that all drivers are licensed. Everyone drives. When policy creates barriers to keeping a license, other problems are created. For one, unlicensed drivers don’t have insurance, and if a wreck happens, we want the at fault driver to have insurance. Another issue is safety of police officers who pull over a motorist. If that motorist is licensed, the officer knows who has been stopped and their history. For these reasons and others, we should be helping people obtain and keep driver’s licenses.”
“I will work with the legislature to tighten the language of the school zone law so that it protects schools and children without causing widespread incarceration beyond the substantial punishments already on the books for narcotics offenses. Assistant DAs will enforce the law but use prosecutorial discretion to seek fairness and justice.“
After taking office, Funk immediately made good on both of these promises and several others, such as increasing diversity in the District Attorney’s office (the DA’s office is now several times more diverse than it has been at any point it its history). He also took substantial heat for doing so. With respect to (mostly) doing away with criminally prosecuting people who lack driver’s licenses, for example, Funk was harshly criticized by Nancy Amons of Channel 4 News for failing to seek jail time as a matter of course. In response, this author (and others) vigorously defended the move as a laudable reform that keeps families together, saves money, and minimizes the consequences of a law that literally fabricates criminality, punishes poverty, and operates only a single step removed from a debtor’s prison.
Funk also implemented a top-down office policy of pursuing school zone enhancements only when drugs are actually sold to kids or on school property. This little-noticed reform, too, carries enormous importance. Because the overwhelming majority of Nashville qualifies as a “school zone,” and because the law applies broadly even to sales that take place between adults on the highway at 2:00AM during summer break, the law could technically apply to almost every drug sale, thereby dramatically increasing potential penalties for nearly all non-violent drug offenses. Prior abuse of the school zone enhancement was used coercively to influence plea bargaining, and it resulted in many spectacularly long sentences for non-violent drug offenders who refused to plead guilty. Significantly, the law also generated outrageous racial disparities. For example, although white people are statistically more likely to deal drugs, nearly 90% of defendants who were punished with the school zone enhancement in Nashville were people of color, and many received decades-long sentences for first-time, non-violent drug offenses. Funk’s reform on the use of the Drug Free School Zone enhancement eliminated the worst of these abuses overnight.
The overall culture of the DA’s office has also undergone a dramatic makeover during Funk’s administration, receiving commendations from a defense bar that was previously accustomed to walking into what often felt like a warzone. Although some prosecutors definitely missed the memo, and although there’s certainly still room for improvement, speaking personally, the author and many others have also found the Funk administration as a whole to be accessible, reasonable, and not unduly committed to bringing the full force of the law down on anyone and everyone without reason. Funk’s personal support for causes like improving expungement access and ensuring LGBT equality within the criminal justice system are similarly praiseworthy, though his prosecutors don’t always adhere to those views. While the author would love to see movement on issues like bail reform and a wrongful conviction integrity unit going forward, to date, the District Attorney’s office receives a B+.
3. The Mayor: D-
If promises were policy, Mayor Barry would receive the A+ on criminal justice reform that she campaigned on. From ending the criminalization of homelessness, to mandating police body cameras, to improving expungement access, to taking the lead on marijuana decriminalization, to rolling out Metro ID cards in order to facilitate successful re-entry, to “waking up every day and being able to make a difference in someone’s life” who is being crushed by the weight of an unfeeling criminal justice system, criminal justice reform advocates unquestionably had their candidate in Megan Barry. Unfortunately, however, promises are not policy, and the reality has not come even close to matching the rhetoric.
On police body cameras, the Mayor went from vocally supporting them as “really important” during her campaign to growing conspicuously silent about their previously-recognized merits during her first year in office. More recently, under mounting pressure, she has re-committed to funding a police body camera program in next year’s budget. Given that the program has not yet come to fruition, however, to date, progress remains non-existent, meaning that video footage is not available following use-of-force incidents. Meanwhile, the Mayor’s office did take the lead on ensuring that $1 million was appropriated from a reserve fund to purchase military-grade ballistic armor for the Metro Nashville Police Department. When it comes to criminal justice policy, the Mayor’s reticence to challenge her police chief on almost any issue even when confronted with evidence of racially discriminatory policing has also caused activists to question whether the MNPD is the proverbial tail wagging the dog. Thus, suffice it to say that those concerned about preventing excessive or unnecessary use of force by law enforcement are not thrilled, either.
On expungement access, the Mayor’s pledge of support was similarly full-throated: “No individual should be unfairly penalized simply because they didn’t have the time, resources, or understanding of the law to have a charge expunged from their record,” she proclaimed. In practice, however, while both Memphis and Chattanooga have committed resources to facilitating expungement access, Barry’s administration has done little more than deploy its legal department to oppose expungement access at virtually every opportunity. This pledge, too, has not reflected reality, and expungement advocates are livid.
On marijuana decriminalization, the Mayor’s previous support also retrenched to such an extent that she “avoided taking a specific position” while an actual bill to decriminalize marijuana was coming down the pipeline (she ultimately signed it). The silence was unexpected and curious, and even at the time, right-leaning Sheriff Daron Hall mustered the political courage to support it. Thereafter, even after the reform passed, as activists called on the Mayor to use the power of her office ensure that the measure was actually implemented by the Metro Police Department, her office described such demands as “Nixonian.” In sum: drug policy reform advocates have not been unduly impressed with the Mayor, either.
Additionally, efforts to develop municipal ID cards have fallen by the wayside entirely, another forgotten promise of a candidate who made many to the criminal justice reform community. Fortunately, though, there has at least been recent movement on this issue from the federal government. Whether Metro ID cards will become a reality here in Nashville under Mayor Barry’s administration, however, is anyone’s guess.
Taken together, evaluating her first year in office, the Mayor’s tenure with respect to criminal justice policy has been a frustrating disappointment. Her recent commitment that Nashville will not become a jurisdiction that leverages its police force to enforce federal immigration law serves as a rare but significant bright spot. Overall, however, the Mayor gets a D-.
Across the world, whether people who have been accused of committing crimes should have the right to an attorney is something of a disputed question. Certainly, North Korean “Supreme Leader” Kim Jong-un, Turkish dictator Recep Erdogan, and any number of other modern fascists hold strong views on the matter. In America, however, the answer to this question has long been settled by the Sixth Amendment to the United States Constitution, which declares with unmistakable clarity that: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.”
This Sunday evening, veteran Wisconsin defense attorneys Dean Strang and Jerry Buting – the trial lawyers who became overnight sensations following the release of the award-winning Netflix documentary “Making a Murderer” – arrived in Nashville to talk criminal justice reform. The wide-ranging discussion – billed as “A Conversation on Justice” – touched upon several aspects of America’s poorly-functioning criminal justice system from juvenile interrogation to legal ethics. Most prominently featured, however, was a plea to improve the sorry state of indigent defense in the United States.
“If we are going to keep putting as many people in prison as we do now,” Strang told the sold-out TPAC auditorium, “then we are at least entitled to a reliable determination of guilt.” (The United States has roughly 5% of the world’s population, but nearly a quarter of the world’s prisoners.) Buting concurred. Compensated at just $40 per hour, “Wisconsin’s appointed criminal defense attorneys are the lowest-paid lawyers in the entire country,” he claimed. For context, Strang added that “it costs me eighty dollars per hour to keep my law firm’s lights on.”
As moderator Stacey Barchenger – who covers the courts and criminal justice beat for The Tennessean – intimated in response, the state of indigent defense in Tennessee is not much better. In fact, for several reasons, it’s considerably worse. And the consequences for society – wrongful convictions and a two-track justice system for the rich and poor – are deplorable.
As any casual observer of American crime drama knows, (almost) everyone in the United States who is accused of committing a crime has the right to an attorney.[1] Additionally, if a person cannot afford an attorney (and more than 80% of defendants fall into this category), then an attorney will be provided at taxpayer expense. Whether a defendant receives a public defender (a lawyer who is employed full time by the government to represent poor defendants) or an appointed attorney (who is typically, but not always, a solo practitioner) depends on a variety of factors including geography, prior criminal history, and whether there is more than one defendant involved in a particular case. Although different in several important ways, the pressures facing public defenders and appointed counsel due to inadequate funding – as well as the consequences of those pressures on poor defendants – frequently overlap.
The right to counsel in state criminal cases – guaranteed by the Sixth Amendment to the United States Constitution and incorporated against the states via the Fourteenth – traces back to the Supreme Court’s landmark 1963 decision in Gideon v. Wainright.[2] Subsequently, the Supreme Court further established that the right to counsel was not merely intended to provide criminal defendants with the euphemistic “warm body with a law degree”; instead, the Sixth Amendment is supposed to guarantee the accused a right to “the effective assistance” of counsel as well.[3]
“In practice,” however, “for a variety of reasons, the impact of Gideon has never come anywhere close to reaching its aspirational goals.” See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harvard Latino L. Rev. __, n. 41 (forthcoming 2016), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2757799. Although multifaceted, the main reason why the right to competent counsel has remained so illusory for indigent defendants more than fifty years after Gideon is simple: the American public just isn’t willing to pay for it. Dollar for dollar, taxpayers would prefer to spend their money on virtually anything in the world before paying for free attorneys for poor people who have been accused of committing crimes. Accordingly, the funding that has been appropriated for indigent defense has never even approached the amount that is actually necessary to afford poor people a meaningful opportunity to defend themselves.
The solutions to this problem, however, are somewhat more complex. Given the profound unpopularity of criminal defendants – and given that poor people cannot afford to hire lobbyists and generally do not have a receptive audience in most (if any) state legislatures – adequate funding for indigent defense is never likely to come voluntarily. Instead, courts must embrace their role as enforcers of constitutional rights and either order legislatures to appropriate sufficient funding for indigent defense or refuse to allow prosecutions to go forward until such funding has been provided. Public Defenders – many of whom handle hundreds of cases at a time – must also begin pushing back against courts that tolerate inadequate funding by refusing to take on caseloads that exceed ethical standards. And when both legislatures and courts fail to meet their obligations, advocates need to sue them. Frustratingly, although reformers do achieve the occasional victory in this regard, successes are usually short-lived, and they are always a long time coming.
For its part, though, Tennessee’s nearly wholesale abdication of its responsibility to ensure that poor defendants receive effective representation provides a fantastic case study on how to run an indigent defense system in a way that virtually guarantees it will fail. Although funded by the General Assembly, the compensation rate for appointed counsel in Tennessee is set by the Tennessee Supreme Court. Specifically, Tennessee Supreme Court Rule 13 provides that “[t]he hourly rate for appointed counsel in non-capital cases shall not exceed forty dollars ($40) per hour for time reasonably spent in trial preparation and fifty dollars ($50) per hour for time reasonably spent in court.” This rate has also been unchanged since 1994, meaning that appointed lawyers for poor defendants are typically the lowest paid professionals in the courtroom. (In contrast, Tennessee’s judges are paid rather handsomely; based on a just-published survey of judicial salaries conducted by the National Center on State Courts, salaries of Tennessee Supreme Court Justices currently rank twelfth-best in the nation, while salaries for judges who sit on lower appellate courts and in trial courts rank ninth.)
There are several obvious problems with Tennessee’s appointed counsel compensation arrangement that are worth highlighting.
First, there is no justifiable basis for compensating “time reasonably spent in trial preparation” less than “time reasonably spent in court.”[4] Trial preparation – including meeting with defendants, interviewing witnesses, preparing pre-trial motions, conducting legal research, investigating mitigating circumstances, filing discovery requests, and any number of other activities that are essential to effective trial advocacy – are every bit as important as time physically spent in court.[5] Longstanding U.S. Supreme Court precedent also supports this reality. As far back as 1932, for example, the Supreme Court observed that a criminal defendant “requires the guiding hand of counsel at every step in the proceedings against him” – not merely at trial – and that “[w]ithout it, though he be not guilty, [a defendant] faces the danger of conviction because he does not know how to establish his innocence.”[6]
Even so, Tennessee remains one of six states in the United States to pay a reduced hourly rate for trial preparation.[7] And because lawyers respond to financial incentives much like other humans, that disparity creates an economic incentive to maximize time spent in court and minimize time spent out of court. For example, when New York’s disparate compensation scheme – $40 per hour for in-court work and $25 per hour for out-of-court work – was struck down as unconstitutional back in 2003, the reviewing court did so in part on the basis that “[t]he lower rate paid for out-of-court time, in particular, operates as a substantial disincentive to perform” many of the pre-trial tasks that are essential to a defendant’s representation.[8]
A second problem is that Tennessee’s appointed counsel compensation rate – a maximum of $50 per hour – is far too low. To the minimum wage worker or the service employee making just a fraction of that per hour, that assertion likely strikes a nerve. But factoring in the fact that the “rate of compensation does not take into account the various overhead costs associated with the practice of law, which include the costs of reference materials, office equipment, rent, travel, malpractice insurance and, for most young attorneys, student loans” – not to mention payroll expenses for office staff – the picture becomes a great deal less rosy.[9] For example, a 2008 survey found that the average annual overhead cost of running a small law firm was $160,000 per lawyer, which roughly translates to overhead expenses of $80 per hour assuming 2,000 billed hours per year.[10] Accordingly, as Strang himself lamented: “I’m subsidizing the State of Wisconsin’s prosecution of my own clients to the tune of forty dollars an hour every time I take an appointed case.”
Compared with private counsel – whose standard hourly rates (summarized here by the Laffey Matrix) are often 10 to 20 times higher than Tennessee’s appointed compensation rates – this disparity becomes especially pronounced. But even confined to the universe of appointed criminal defense work, Tennessee’s compensation rate lags substantially behind other jurisdictions. For example, Alabama pays its appointed criminal defense attorneys $70 per hour. Arkansas pays them $50-$90 per hour. South Dakota musters $84. And compensation rates for non-capital federal cases – which are funded separately by the Federal Criminal Justice Act – currently stand at $129 per hour. In fact, on a national scale, Tennessee’s appointed attorneys are arguably paid the second-lowest effective rate in the entire country.[11] Add in the fact that non-attorney staff members in the Administrative Office of the Courts occasionally deduct appointed attorneys’ bills on the basis that they spent too long on a given task, it’s no wonder that Tennessee’s appointed compensation scheme is held in such universal disregard by those involved in it.
Third, and most egregiously, Tennessee’s compensation rates are capped at set maximums. With few exceptions, attorney compensation is limited to $1,000 for misdemeanors and $1,500 for felonies. The result of such caps is that after attorneys have spent approximately twenty to thirty hours on a given case, they immediately begin losing money. Thus, if an attorney is to make a decent living taking appointed cases, then the only feasible way to do so is to maximize the number of cases cleared before a case’s compensation limit has been reached—a strategy that is not-so-fondly referred to as “meet ‘em and plead ‘em.” It also goes without saying that given the seriousness and complexity of criminal cases – not to mention the severity of their potential consequences – many clients’ cases cannot reasonably be concluded in thirty hours. Especially under circumstances when a client is innocent and wants to go to trial, criminal cases can and often do take years to complete.
Predictably, this capped compensation arrangement can introduce deeply troubling and profoundly perverse incentives into an indigent defendant’s representation. By placing enormous financial pressure on attorneys to conclude cases immediately once they have reached the maximum compensation limit (usually via a plea bargain), the caps create a serious conflict of interest between attorneys and their clients that probably violates Rule of Professional Responsibility 1.7(2) (“a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer.”). As a consequence, indigent defendants all-too-often do not get the zealous advocacy and effective representation to which they are supposed to be constitutionally entitled.
The results of such idiosyncrasies – (1) disparate pay between in-court and out-of-court work; (2) low compensation rates; and (3) per-case caps on compensation – are measurably terrible for criminal defendants. The rate of wrongful convictions even in death penalty cases is conservatively estimated to be about 4.1%. This estimate is even more horrifying given that multiple exceptions (such as higher compensation rates, lifted compensation caps, and dual appointments of attorneys who are required to have significant trial experience) are routinely permitted when the death penalty is at stake. Accordingly, one might reasonably expect that the wrongful conviction rate for less serious criminal cases is significantly higher.
On a broad scale, extensive evidence also indicates that “those with publicly funded counsel are [both] more likely to be convicted than those with privately paid attorneys” and more likely to receive longer sentences.[12] Clients represented by salaried public defenders (who – although similarly underfunded – at least have “steady salaries, financial and institutional independence”) also enjoy measurably better outcomes than clients represented by appointed attorneys, who regularly experience the perverse incentives described above.[13] Accordingly, like the rest of the country, Tennessee boasts a two-track justice system that is definitely not based exclusively on determining guilt versus innocence. Instead, it has one justice system for the rich, and another for the poor.
Happily (potentially), the Tennessee Supreme Court has recently launched an Indigent Representation Task Force with the supposed goal of fixing these problems. It is not clear, however, what this task force expects to discover. When the results are ultimately announced, nobody will be surprised to learn that Tennessee’s decision to fund indigent defense at very nearly the lowest rate in the nation results in terrible outcomes for poor people. Even if the task force decides to recommend changes to Tennessee’s compensation system, the recommendations are most likely to track those that were previously advanced by the Tennessee Bar Association and other interested organizations back in 2004. The notion that any of the problems being considered during the Task Force’s “listening tour” are new or unknown, however, is farcical. The topic of indigent defense is well understood, and it has been studied extensively both locally and nationally on too many occasions to count.
If Tennessee is serious about fixing its indigent defense system – and for now, there is no real indication that it is – then the solutions are simple but politically unpopular. At a minimum, Tennessee’s compensation rates need to double, the compensation caps need to be lifted, and the disparity between in-court and out-of-court work needs to be done away with for good. Public Defenders’ offices also need to be funded at a rate that permits attorneys to keep their caseloads below defined national standards. Whether any of these reforms will actually be put into effect, however, only time will tell. Until then, poor defendants in Tennessee will continue to serve as data points in a human trial aimed at determining how to provide the least effective criminal representation possible, and sadly, almost nobody will care.
Questions about this article? Email Daniel Horwitz at [email protected].
[1] Contrary to popular belief, everyone accused of a crime does not actually have the right to an attorney. Instead, the right to counsel attaches only when a defendant is charged with a felony, see Gideon v. Wainwright, 372 U.S. 335 (1963), or when actual incarceration is imposed. See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (“the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”) (emphasis added). Thus, accused misdemeanants can and often do go unrepresented, resulting in significant collateral consequences that the justice system has never adequately addressed.
[3]United States v. DeCoster, 624 F.2d 196, 290 n. 129 (D.C.Cir.) (en banc) (Bazelon, J., dissenting); Strickland v. Washington, 466 U.S. 668, 687 (1984) (“the proper standard for attorney performance is that of reasonably effective assistance.”).
[4]See generally, John P. Gross, Gideon at 50: A Three-Part Examination of Indigent Defense in America, Part I 12-13, Indigent Defense Counsel of the National Association of Criminal Defense Lawyers (March 2013), https://www.nacdl.org/reports/gideonat50/rationingjustice/.
[10]Id. at 16 (citing Altman Weil, Survey of Law Firm Economics: Trend Comparison of Overhead Expenses (2003)).
[11] Wisconsin and Oregon respectively compensate their attorneys at $40 per hour and $45 per hour independent of what work is being performed, but unlike Tennessee, neither state imposes maximum compensation limits, which have the consequence of reducing the effective compensation rate realized. See Gross, supra, at 29 & 32. However, attorneys in Cook County, Illinois receive $40 per hour in court and $30 per hour out of court, with maximum compensation caps even lower than Tennessee. Id. at 22. Some jurisdictions have flat fee rates or higher hourly rates but lower compensation caps, however, making cross-jurisdictional comparisons somewhat difficult. Id. at 20-32.
[12] Erwin Chemerinsky, The Case Against the Supreme Court 147 (2014).
[13] James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 Yale L.J. 154, 188 (2012).
The American judiciary is in crisis. This crisis, however, is not one of competence or capability. Instead, due to unprecedented inaction from the United States Senate, large swaths of the federal judiciary are simply missing — resulting in excessive delays, exploding dockets and inconsistent application of the law in different parts of the country.
At present, more than 10 percent of the federal judiciary is vacant, with the overwhelming majority of such vacancies occurring in federal District Courts. District Courts serve as the judiciary’s workhorses, handling claims like Social Security disability denials and overseeing criminal prosecutions. Astoundingly, however, nearly one-third of federal District Court vacancies are currently designated “judicial emergencies” — a term that is generally defined as a court where filings exceed 600 per judge. Consequently, for anyone who believes that justice delayed is justice denied, the status quo stopped being acceptable many years ago.
The situation is no better at the appellate level. With respect to Court of Appeals nominees, the confirmation process has become so dysfunctional that Senate Republicans are now routinely refusing to confirm qualified nominees whom they themselves proposedto fill vacant positions. The Senate’s failure to fill vacant seats has also put a tremendous strain on sitting judges who must compensate for their missing colleagues — often preventing them from devoting the necessary time and attention to each case that every litigant deserves. Given the judges’ impossibly large caseloads, oral argument is now permitted in fewer than one out of every five cases in many federal circuits — depriving many aggrieved citizens of their cherished day in court.
But nowhere is America’s judicial crisis more apparent than in the U.S. Supreme Court. Having been left without a critical ninth member since February, the Supreme Court has already been unable to resolve myriad split decisions by lower courts — resulting in the same laws carrying different meanings in different parts of the country. Significantly, if the Senate fails to confirm a new justice soon, then the Supreme Court will also be forced to go at least two terms without being able to settle such crucial disputes. The resulting chaos is not only deeply damaging to the rule of law and to the judiciary as an institution — it is also historically unprecedented.
Denying President Barack Obama’s Supreme Court nominee Merrick Garland a Senate confirmation hearing is unparalleled in modern history. Since 1916, with the sole exception of 11 justices who were confirmed by unanimous consent, the Senate has scheduled a confirmation hearing for every single person who has been nominated to fill a Supreme Court vacancy, bar none.
Until now, the Senate also has never failed to do its constitutional duty, either as a matter of partisan obstruction or because a vacancy came up during an election year. In fact, Senate Democrats have confirmed Republican presidents’ Supreme Court nominees 12 separate times in recent history — including permitting conservative lightning rod Clarence Thomas to replace liberal icon Thurgood Marshall in 1991. Additionally, since 1912, six Supreme Court justices have been confirmed during presidential election years, including the 1988 confirmation of Justice Anthony Kennedy under President Reagan.
Moreover, as George H.W. Bush and Jimmy Carter have never forgotten, presidential terms are four years — not eight. Thus, the notion that presidents should simply stop fulfilling their constitutional duties during the final year of their terms — thus wasting a full quarter of an American presidency — is ludicrous.
Ultimately, if Senate Republicans decide that judicial nominees like Merrick Garland are unqualified to hold office for any reason, political or otherwise, then they are within their rights to vote them down. To fail even to hold confirmation hearings for proposed nominees, however, is a flagrant dereliction of duty. Thus, Senate Republicans should rightly be taken to task for refusing to comply with their constitutional obligations. Election year or not, it’s long past time for them to do their job.
Daniel Horwitz is an appellate attorney in Nashville and a member of the American Constitution Society. Reach him at [email protected].
