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.”
Demonstrating his laudable commitment to participating in the political process and encouraging others to do so as well, international music sensation and Memphis-bred popstar Justin Timberlake recently posted an instragram photo of himself rocking the (early) vote at his polling place in Memphis, Tennessee. That terrible offense, unfortunately, has earned him a rebuke from the Shelby County District Attorney’s office, which is currently conducting a criminal investigation into his scandalous conduct. The reason? Tennessee’s poorly-worded “Use of Mobile Electronic and Communication Devices at Polling Place for Informational Purposes” statute, codified at Tenn. Code Ann. § 2-7-142(b), which provides that:
“Any voter using a mobile electronic or communication device . . . shall be prohibited from using the device for telephone conversations, recording, or taking photographs or videos while inside the polling place.”
Violating this provision is theoretically a Class C misdemeanor punishable by up to 30 days in jail and a $50.00 fine. The law, however, is unconstitutional.
The practice of taking “ballot selfies” – photographs of one’s ballot that may or may not also include the voter – has become increasingly popular among voters in recent years. Celebrities from Beyoncé to Sean Hannity to Kim Kardashian have also gotten in on the action. Unfortunately, however, the celebratory practice of posting ballot selfies – which should be welcomed and perhaps even encouraged in a political climate in which many voters, especially young voters, never vote at all – has also drawn the attention of overzealous state regulators. During the November 2014 election, for instance, “approximately 35 states prohibited ballot selfies in one form or another,” and several states – Tennessee among them – “have since followed suit.”
Three main reasons, detailed extensively in this article, support the conclusion that ballot selfies may not lawfully be prohibited without violating the First Amendment.
First, ballot selfie bans unnecessarily restrict a substantial amount of constitutionally protected speech (like Mr. Timberlake’s) that is completely unrelated to vote buying, while simultaneously doing nothing to prevent far simpler forms of vote buying, such as absentee ballot fraud (which can be accomplished outside of the comparatively well-surveilled atmosphere of a polling place).
Second, the “compelling” nature of the Government’s interest in enacting broad-based laws to guard against vote buying is subject to considerable doubt, because vote buying is statistically non-existent even in jurisdictions where it is easy to accomplish.
Third, and most importantly, because voters have the ability to change their vote even after taking a ballot selfie, ballot selfies are a useless tool for promoting vote buying anyway—rendering the entire premise behind such laws baseless. That reality is exposed, for example, by this set of pictures (click on the photo to enhance it) that the author took during the 2015 Nashville mayoral election, which collectively illustrate just how easy it is to change one’s vote after making an initial selection:
In other words, because ballot selfies do not provide a prospective vote-buyer any level of certainty that a ballot has actually been cast in a particular way (an absolute prerequisite to any effective vote-buying scheme), ballot selfies are a useless tool for committing fraud, and banning them serves to do nothing but interfere with the political speech of innocent voters who want to do nothing more than celebrate the fact that they voted.
In sum: Justin Timberlake should be applauded for his activism and his decision to celebrate the right to vote, which is fully protected by the First Amendment. As such, today – like most days – JT’s an American hero.
Update, 5:07 PM: To the surprise of nobody, Justin Timberlake’s prosecution for violating Tennessee’s ballot selfie ban won’t go forward.
Nashville attorney Daniel Horwitz was helping a man expunge his criminal record when he discovered something unexpected: a conviction for violating Tennessee’s Homosexual Practices Act—from 1995.
“Subject was engaged in sexual intercourse with another male subject,” the misdemeanor citation reads. The charge could have landed the defendant—whom I’ll call John Doe—in jail. Instead, Doe took a plea deal and avoided jail time by admitting that he had, indeed, had sex with a man, a practice forbidden by the law. Horwitz told me he was “aghast” to see the charge.
Nashville, Tennessee—The Tennessee Board of Cosmetology and Barber Examiners has officially withdrawn its threatened enforcement action against on-demand beauty services provider Project Belle, greenlighting the company’s business practices and enabling its continued growth throughout the State of Tennessee. The Board’s decision to back down comes after intense media coverage from local, state and national media outlets including Forbes, Yahoo, Reason, the Nashville Business Journal, the Beacon Center of Tennessee, and the Memphis Commercial Appeal.
The Board had claimed that the Tennessee Cosmetology Act of 1986 prohibited Belle from facilitating the purchase of beauty services in the privacy of a customer’s home. Accordingly, the Board demanded that Belle pay a civil fine, waive its right to judicial review, and cease and desist from operating. Instead, Belle lawyered up and formally contested the Board’s allegations, causing it to reconsider its threatened enforcement action. The Board’s decision to permanently withdraw its complaint soon followed.
“We are extremely pleased that the Board of Cosmetology has withdrawn its unlawful and overzealous threats against Project Belle, whose only crime has ever been to provide eager customers with convenient, premium quality beauty services at competitive prices in the privacy of their own homes,” said Daniel Horwitz, Belle’s attorney. “No government agency should be in the business of preventing popular, innovative businesses from serving willing customers just to protect entrenched industry competitors from competition. We look forward to working with the General Assembly in the coming months to make clear that the Board lacks the authority to deprive healthy, able-bodied consumers of their right to purchase their desired beauty services whenever and wherever they please.”
“The Board has decided to dismiss its complaint and Belle will continue its operations and growth efforts in Nashville,” said Armand Lauzon, Belle’s founder and CEO, who recently penned an op ed in The Tennessean calling on legislators to repeal Tennessee’s outdated cosmetology regulations. “We are delighted by the Board’s decision. It means that beauty professionals who have built businesses with us can continue their success, and our clients can continue enjoying services that many of them desperately need. It also means that economic growth and innovation can continue expanding in Tennessee. We are proud to have helped pave the way on this important issue.”
“I also want to send a special thanks to the legislators who took time to voice their support on our behalf, including State Representative John Ray Clemmons, State Senator Steven Dickerson, and State Senator Mark Green,” added Lauzon.
Case Update: On August 30, 2016, the U.S. Supreme Court ordered the State of Tennessee to file a response to the petition for writ of certiorari filed in this case by defendant Terry Norris. The State’s response was filed on September 29th, and it is accessible here. Mr. Norris’s petition for writ of certiorari was also featured as the “petition of the day” on SCOTUSblog last Friday.
Statistically speaking, the Supreme Court’s request for a response from the Tennessee Attorney General raises the likelihood that the court will accept this case for review from approximately 1% to roughly 10%-20%. If granted, Norris v. Lester will be one of the most significant cases to reach the U.S. Supreme Court out of Tennessee in recent history.
In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy. The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1] Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.
Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2] As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours. If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it. If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.
The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures. In the 1991 case County of Riverside v. McLaughlin,500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional. Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place. However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:
“First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]“
This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring. There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted. Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.
Questions about this article? Email Daniel Horwitz at [email protected].
[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).
[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).
[3]The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.
[4] Horwitz, supra, at 522–23 (citations omitted).
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).
In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy. The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1] Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.
Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2] As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours. If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it. If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.
The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures. In the 1991 case County of Riverside v. McLaughlin,500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional. Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place. However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:
“First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]“
This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring. There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted. Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.
Questions about this article? Email Daniel Horwitz at [email protected].
[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).
[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).
[3]The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.
[4] Horwitz, supra, at 522–23 (citations omitted).
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].
In a 3-1 decision, the Tennessee Supreme Court has ruled that petitions for writ of error coram nobis filed pursuant to Tenn. Code Ann. § 40-26-105 can no longer be used to challenge guilty pleas. The Court’s decision in Frazier v. State formally overturns its prior decision in Wlodarz v. State,[1] which the Court decided on precisely the same issue just four years ago.
Frazier marks yet another step in the Court’s increasingly activist efforts to overturn past precedent and eschew stare decisis in cases that bolstered the rights of the accused under Tennessee law. Following the recent departure of Justices Gary Wade and Janice Holder, the Tennessee Supreme Court’s new conservative majority has aggressively sought to limit and overturn earlier rulings that established protections for criminal defendants—even, in some instances, when both the government and defendants agreed that certain rights existed.[2] The Court’s recent decisions following this approach have run the gamut from issues involving jury instructions to narrowing the means by which defendants are permitted to prove that they suffer from an intellectual disability. Perhaps most controversially, however – at least for the moment – in May 2016, the Court issued its decision in State v. McCormickon the “community caretaking doctrine,” which created a new exception to the warrant requirement in Tennessee and overturned the Court’s prior decision in State v. Moats on the very same question barely three years earlier.[3]
The specific issue involved in Frazier was Tennessee’s coram nobis statute, which is codified at Tenn. Code Ann. § 40-26-105. Coram nobis is a venerable common law writ dating back to sixteenth century England that has been used throughout the United States to cure injustice when no other procedural mechanism was available. Perhaps the most famous example of the writ’s issuance in recent history is the posthumous exoneration of George Stinney Jr. in 2014– a 14-year-old black child who was executed in South Carolina in 1944 after being convicted of a capital crime that he did not commit. Broadly speaking, however, from a historical perspective, “the common law writ of error coram nobis has served as a ‘gap-filler’ which was invoked ‘to rectify a recognized wrong when all other possible remedies [we]re no longer available.’”[4]
Frazier involved a defendant who pleaded guilty to second degree murder in 2004. In 2011, he sought coram nobis relief from his conviction based on newly discovered evidence. It is not clear from the court’s opinion what the newly discovered evidence was, but suffice it to say that defendants sometimes do plead guilty to crimes that they did not commit or plead guilty for other reasons that are unrelated to their guilt. As a result, most people agree that some type of relief should be available to defendants who can make a credible showing that they are innocent of a crime for which they pleaded guilty, were unlawfully coerced or threatened into pleading guilty, or pleaded guilty as a result of some other constitutional infirmity. Based on a variety of limitations that require defendants to assert such claims quickly after their pleas are accepted or else lose them forever, however, there is often no procedural mechanism available to defendants who seek to prove the illegitimacy of a guilty plea several years after it was entered. Thus, in such situations, it is natural for a defendant to turn to the writ of error coram nobis for relief when no other remedy is available.
The only question at issue in Frazier was “whether a criminal defendant who pleads guilty may later attack that plea by seeking error coram nobis relief.”[5] The uncertainty arose out of Tenn. Code Ann. § 40-26-105’s use of the word “trial” – rather than a more general term like “hearing” or “proceeding” – which at least plausibly lends itself to the conclusion that guilty pleas were intended to be excluded from the statute’s ambit. Specifically, the relevant section of Tennessee’s coram nobis statute provides:
The relief obtainable . . . shall be confined to errors [outside] the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.[6]
In 2012, however, this uncertainty was resolved by the Tennessee Supreme Court in Wlodarz v. State, which held without equivocation that: “a writ of error coram nobis is available to challenge a guilty plea . . . .”[7] In Wlodarz, the Court explained in a lengthy section entitled “Guilty Plea Proceeding as a Trial” that “[n]umerous authorities interpret the term trial broadly.”[8] The Court’s majority also cited extensive precedent from the United States Supreme Court, the Tennessee Supreme Court, the Tennessee Court of Criminal Appeals, and the legal treatises American Jurisprudence and Corpus Juris Secundum to support that proposition.[9] Consequently, the Wlodarz court concluded that “[i]t is inappropriate, in our view, to trivialize a guilty plea proceeding by holding that it does not constitute a ‘trial.’”[10] The Court further observed that “[i]f this Court were to say that a guilty plea proceeding is not a trial and thus, not subject to the writ of error coram nobis, we would be the first to so hold, brushing aside centuries of tried and tested jurisprudence.”[11]
Importantly, no legislative changes of any kind were made to the coram nobis statute after Wlodarz was decided. At least to this author’s knowledge, the decision was not followed by any other legal or factual developments that might have caused the Tennessee Supreme Court to reconsider it, either. Instead, the only intervening fact of significance was a recent change in the composition of the Tennessee Supreme Court. Thus, without any particular reason for doing so, the current Court decided to grant review in Frazier “to reexamine the availability of the error coram nobis statute as a procedural mechanism to collaterally attack a guilty plea.”[12]
Upon review, a three-Justice majority explained that “[t]he plain and ordinary meaning of the term ‘litigated on [or at] the trial’ in the context of criminal prosecutions refers to a contested proceeding involving the submission of evidence to a fact-finder who then must assess and weigh the proof in light of the applicable law and arrive at a verdict of guilt or acquittal.”[13] The majority then recited that its “oath is to do justice, not to perpetuate error” – a familiar line invoked by courts when overturning established precedent – and further held that the value of stare decisis was limited in this instance because “Wlodarz is only a few years old.”[14] Accordingly, Frazier’s majority decision formally overruled Wlodarz and held that the term “trial,” as used in Tennessee’s coram nobis, must actually be construed narrowly.
In a short but hard-hitting dissent, Chief Justice Sharon Lee lambasted the majority for having dispensed with stare decisis so readily. She noted: “The principle of stare decisis, that the Court should follow precedential decisions, is ‘a foundation stone of the rule of law.’”[15] This foundation, she explained, “promotes consistency in the law and confidence in this Court’s decisions,” and it “gives firmness and stability to principles of law so that people may know their legal rights.”[16] Further, Chief Justice Lee observed:
We previously set out the circumstances when the Court may and should disregard stare decisis, overrule precedent, and overturn a settled rule of law: when there is obvious error or unreasonableness in the precedent; when a change in conditions makes the precedent obsolete; when adherence to precedent would likely cause greater harm to the community than would disregarding stare decisis; or, especially, when prior precedent conflicts with a constitutional provision. The Court should follow precedent unless an error has been committed, and it becomes plain and palpable. The Court may also revisit an earlier decision where experience with its application reveals that it is unworkable or badly reasoned. Here, none of those compelling reasons are posed.[17]
As noted in this article’s introduction, Frazier represents just another star in a constellation of recent judicial activism by the Court’s new conservative majority, which has all but rushed to overturn past precedent that bolstered the rights of criminal defendants. This pattern is also likely to continue. Coming down the pipeline, for example, the Tennessee Supreme Court recently granted review in State v. Tuttle by expressing its “interest[] in briefing and argument of the question whether this Court should revisit the continuing vitality of State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989).” Ten months ago, the Court also heard argument in State v. Reynolds, which may well result in Tennessee’s imminent adoption of its first-ever “good faith” exception to law enforcement misconduct. (Note: In the interest of full disclosure, this author participated in drafting an amicus curiae brief in Reynolds on behalf of the Tennessee Association of Criminal Defense Lawyers that opposed such a result.)
Jacumin represents one of Tennessee’s most celebrated state constitutional protections, requiring law enforcement officials in this State to establish a comparatively greater degree of confidence before obtaining search warrants. Based on the Court’s recent jurisprudence, however, Jacumin’s continued survival (and the survival of myriad other precedential decisions) seems unlikely. Regardless of the specific question involved, the Tennessee Supreme Court’s new philosophy is clear: no prior precedent bolstering the rights of the accused under Tennessee law – no matter how recent or long-established – stands on firm footing any longer.
Questions about this article? Email Daniel Horwitz at [email protected].
[2]See, e.g., State v. Brown, 479 S.W.3d 200, 210 (Tenn. 2015) (“we are not required to accept the State’s concession and decline to do so in this instance. . . . We are also not persuaded by Mr. Brown’s and the State’s interpretation of Rule 36.1, although we recognize that some panels of the Court of Criminal Appeals have embraced this interpretation of the rule.”).
[4] Daniel A. Horwitz, Revealing Disturbing Gap in Tennessee Law, Tennessee Supreme Court Rules that Allegedly Retarded Death Row Inmate Is Not Entitled to Prove that He’s Retarded, scotblog.org (Apr. 19, 2016), https://scotblog.org/2016/04/revealing-disturbing-gap-in-tennessee-law-tennessee-supreme-court-rules-that-allegedly-retarded-death-row-inmate-is-not-entitled-to-prove-that-hes-retarded/ (quoting Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012)).
[5]Frazier v. State, No. M-2014-02374-SC-R-11-ECN, 2016 WL 3668035, at *1 (Tenn. July 7, 2016).
News Channel 2 viewers were treated to a fun story last night about the free speech rights of public employees. According to the segment, Nashville District Fire Chief Tim Lankford was recently disciplined for controversial, conservative-leaning statements that he made on his facebook page, which were perceived by his employer as being “racial, stereotypical, and threatening toward members of the public.” The statements included posts such as: “The first man who goes into the restroom with my daughter won’t have to worry about the surgery,” as well as a diatribe about the Supreme Court’s marriage equality ruling that concluded with Chief Lankford stating that he was “so disturbed” by the opinion that he could “barely function at his job.” Chief Lankford’s discipline also comes on the heels of independent sanctions being levied against two local police officers and a Sherriff’s deputy for statements made on facebook about the military lifting its ban on transgender service members and about the Black Lives Matter movement. All of which led News Channel 2’s reporter to wonder: Can public employees be disciplined for their speech without running afoul of the First Amendment?
Last night’s segment does not explore the applicable First Amendment doctrine in detail, but the short answer is “sometimes.” Sadly, for most of the 20th century, public employers had an unfettered right to take adverse employment actions against public employees for their speech whether it was expressed inside or outside of the workplace. Specifically, the Court’s thinking went: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[1]
Happily, though – at least for those of us who believe that more speech contributes to a better democracy – the Supreme Court eventually decided to change course. In a series of cases beginning with the Court’s 1968 decision in Pickering v. Board of Education, the Court aimed to strike a balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[2] Approximately four decades of tweaking later, following the Supreme Court’s contentious 2006 decision in Garcetti v. Ceballos,[3] the current state of the doctrine is as follows:
Determining whether a public employee’s First Amendment rights have been violated currently requires a three-part inquiry.
First, to be protected, the employee’s speech must address a matter of public concern, rather than a purely private matter.[4] “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’”[5] This requirement is broadly construed, so in addition to encompassing commentary on political issues writ large,[6] “speech falling into this category includes informing the public that a governmental entity failed to discharge its governmental responsibilities or bringing to light actual or potential wrongdoing or breach of public trust on the part of a governmental entity or any officials therein.”[7]
Second, the employee must also have been speaking as a private citizen, rather than speaking pursuant to his or her official job responsibilities. “When public employees make statements pursuant to their official duties,” the Supreme Court has explained, “employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[8] Thus, although speech by public employees on matters of their employment is sometimes protected under federal and state whistleblower laws, for First Amendment purposes, public employees who speak in their capacity as public employees enjoy no First Amendment protection whatsoever.
Third, if the employee’s speech involved a matter of public concern and was not made pursuant to the employee’s official duties, then courts must attempt to “balance the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[9] In Garcetti, the Supreme Court instructed that “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”[10] However, lower courts have interpreted this requirement to mean that an employee’s interest in commenting upon matters of public concern must “outweigh” his or her employer’s interest in promoting an efficient and effective workplace, meaning that this final factor often derails otherwise-valid First Amendment claims as well.[11] If the employee can satisfy all three of these requirements, however, then disciplining the employee for speaking out violates the employee’s rights under the First Amendment.
Satisfying each of these three requirements is undeniably difficult—especially for first responders who require the public’s complete trust that they will discharge their duties fully and impartially without regard to factors like a person’s race, gender, or sexual orientation. (As former New York Mayor Rudy Giuliani celebrated during his speech at the Republican National Convention on Monday, for example: “When the[ police] come to save your life, they don’t ask if you are black or white, they just come to save you!”) Accordingly, public employees often do not enjoy quite the level of First Amendment freedom that many expect or hope to see. Of note, however, the limited First Amendment protections afforded to public employees stand in stark contrast to those held by private employees, who enjoy no First Amendment protections with regard to their employment at all.
Of course, the First Amendment also is not the only source of protection for free speech. Additional protections can be and often are conferred upon public employees by federal law, state law, union agreements, or by contract. For example, pursuant to Tennessee’s Public Employee Political Freedom Act (PEPFA): “it is unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee’s right to communicate with an elected public official.”[12] Taking disciplinary action against a public employee who exercises his or her right to communicate with a public official under PEPFA can also result in severe consequences to a government employer, including “treble damages plus reasonable attorney fees.”[13] Thus, the First Amendment functions as only a protective floor upon which additional free speech protections can be – and should be – built higher.
Questions about this article? Email Daniel Horwitz at [email protected].
[1]Connick v. Myers, 461 U.S. 138, 143-44 (1983) (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892), citing Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930); Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882).
[3] 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).
[4]See Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir. 2008).
[5]Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (quoting Connick, 461 U.S. at 146.).
[6]See, e.g., Pickering, 391 U.S. at 571 (protecting commentary on use of tax dollars and school spending).
[7]Rodgers, 344 F.3d at 596 (internal quotation marks and alterations omitted).
