PHOTOS BY ROBIN SALANT
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The long-running, award-winning television drama Law and Order opens each episode with a terse introduction that has become part of popular culture: “In the criminal justice system the people are represented by two separate, yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders. These are their stories.” Viewers are then plugged into a world of crime and criminals in which justice is served within 60 minutes and all’s well that ends well.
Unlike television dramas, the real criminal justice system is a complex arrangement. Attorneys don’t just prosecute offenders; they also represent them. Whether guilty or innocent, those charged with a crime have a right to a lawyer. That responsibility often falls to public defenders, whose duty it is to provide the best possible defense for people who sometimes have little hope — and no money.
In Shelby County, with its large indigent population, that task can be daunting. Thousands of poor people require the services of the “free lawyers” each year for crimes ranging from misdemeanor offenses to death-penalty appeals. This year’s Tennessee Public Defender report shows increases in cases handled by defenders in all courts except Juvenile Court and increases in all charge categories except felonies. Yet the office manages to provide an indispensable service to the community, while producing top-quality, specialized lawyers and methods to curtail criminal activity.
“Are you a real lawyer?”
Theresa Jones hears this question almost every day from clients who sometimes feel that her position at the public defender’s office renders her less than professional. As a 15-year veteran and Criminal Court supervisor, Jones has heard it all. “The [myths] are numerous. I don’t know how they started but they are rampant throughout the criminal community. Clients ask us would they get a better deal if they had a real lawyer. A client told me that, because I was still in the public defender’s office, I couldn’t be that good,” says Jones. “I have to tell myself that people just don’t know, and there’s not a lot [of information] to educate the public that we are lawyers. A well-informed person would look at our experience and numbers and the amount of cases we handle.”
Jones is one of the 70 assistant public defenders whose primary job is to make sure indigent citizens accused of a crime are legally represented. The office handles approximately 25,000 cases each year. With a total staff of 117, including investigators and clerical employees, the office is responsible for eight divisions of General Sessions Court, 10 divisions of Criminal Court, some Juvenile and Circuit Court cases, and even the municipal courts of area suburbs like Germantown and Bartlett.
Founded in 1917, Shelby County’s public defender’s office is the oldest in Tennessee and third-oldest in the nation, behind only Los Angeles and Oklahoma City. The need for indigent legal representation arose in 1915 when a Dyer County murder case fraught with racial tension was transferred to Shelby County, where 33-year-old practicing attorney Samuel O. Bates was appointed as defense lawyer in the case. The defendant’s adamant denial of the murder led Bates to spend $500 of his own money in investigations and expenses, resulting in evidence linking the murder to the victim’s husband instead of Bates’ client. The case led Bates, then a state senator, to introduce legislation for a public defender’s office.
The initial office consisted of one attorney, known as the public defender, who worked on a part-time basis and was allowed to practice private law as well. The defender was allowed to hire temporary assistant attorneys and staff as needed. But by the end of Hugh Stanton Sr.’s term in 1974, the office had grown to a staff of 28 and the first investigator was employed. Since then, an increased caseload has led to an increase in staff overseen by a chief public defender, appointed by the mayor, who is responsible for the organizing, staffing, and budgeting of all office activities. Robert Jones, a 25-year office veteran and 12-year deputy chief, took the helm as the ninth chief public defender in September when former chief A C Wharton was elected Shelby County mayor.
Like most of the attorneys in the office, Jones is a University of Memphis law school graduate, who got his start with the office as a law clerk. “I volunteered [in the public defender’s office] and went into private practice for a few months and came back. I have been here ever since,” he says. “We are fortunate that we are able to get attorneys that choose this as their career, like me. They want to be here and they enjoy practicing law and working with people. For courtroom experience, this is the place to be. We always have a number of attorneys on the waiting list for employment.”
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| The office’s outreach programs are coordinated with the assistance of Christie Glenn. |
In the Trenches
The work of a public defender far outweighs the $41,000 initial yearly salary. Once a lawyer is hired, he or she begins in General Sessions Court handling misdemeanor cases. The caseload is high, with defenders having to juggle courtroom time, other open cases, and client counseling each day. “The biggest complaint of new attorneys is that there are too many cases to handle,” says specialty court coordinator and 14-year office veteran Jack Green, whose job is to monitor and advise attorneys. “But [the system] has gotten better. We’ve got more people and help now. You may have 40 cases, but there’s another attorney in court to help with those. The office record was set in the late 1980s, when one of the current supervisors handled 52 cases by herself [in a day] and she was pregnant. I tell lawyers to pace themselves. These cases will be here tomorrow.”
After their stint in General Sessions, assistant defenders get the opportunity to move to their specialty area. Cases are assigned to public defenders by the judge when a defendant is found to be unable to hire a private attorney. Two defenders are assigned to a courtroom and cases are divided between them. “The way we have it set up, the attorneys can handle a larger volume than they used to. Private attorneys have a lot of time between cases, but the majority of our attorneys’ time is spent in the courtroom, which familiarizes them with the system and helps with efficiency and with court operations,” says Jones.
While attorneys are employed by the county and supervised by a group of administrators, there are no rules outlining case management. “We’re allowed to be uniquely who we are, as long as we are competently doing it,” says 14-year defender Debra Antoine. “Not everyone has to have the same style in the courtroom. When you’re allowed to be the individual you are, you just focus on representing them and not on ‘Do you have my money?’ or ‘I want my $200 to $300 [retainer] and we can talk tomorrow.’ Not having that hanging over your head makes it nice to go in and represent the person.”
Antoine is one of the attorneys assigned to Division 8, which has evolved into a full-time drug court under Judge Tim Dwyer. The drug court team consists of three prosecutors, two public defenders, pretrial probation counselors, a court coordinator, and representatives from treatment providers. “I like seeing people that have fought and kicked and have lied through their teeth, done every little scheme they can and then finally admit that they have a problem. Some come in very openly and turn their life around, while others come in and never turn their life around and are sentenced out,” Antoine says. “But to see a crack addict, for example, turn it around, I like seeing that, and I like seeing us doing more than giving them a form and sending them to the Penal Farm to serve time.”
As part of the drug court program, offenders are provided substance-abuse counseling and assistance with transitional housing. “Drug court graduations are the third Wednesday of the month, and it’s fun to see the people who have turned it around,” says Antoine. “They get their mug shot and it usually looks bad. To see them turn it around in a system that’s geared toward sending them back and not correcting the problems is a good thing. Some of these people have done some very bad things, but they’re in a lot of pain and they’re acting out. When you haven’t had a good example, maybe momma’s been a crack addict herself; you do what you’ve been taught.”
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| Jack Green |
Steadfast Determination
“One of the best compliments ever paid to me was a client that said, ‘Ms. Jones, you are a hard lady, you’re fair, but you’re hard,'” says Theresa Jones. As a Criminal Court defender and supervisor, Jones has to be hard. With a caseload of roughly 90 open cases, there’s not a lot of time for frivolity. “We can’t be everything to all people. [Defenders] have to maximize their time to help each client without sacrificing the cases of others,” she says. Jones handles clients who have been arrested, fingerprinted, processed, and gone through General Sessions indictment. Her cases consist of any criminal violation except capital murder but include first-degree murder when the prosecution does not seek the death penalty. “Most of my clients would say that they were adequately represented. This job requires a lot of humility, not taking things personal. You’re in the front line and the first person they are going to lash out at because you are the person bringing the bad news,” she says.
The hard-line style of criminal defending was a natural but almost missed opportunity for Jones. The Lane College graduate began her career as a journalist for the now defunct Mid-South Express News. After her reporter stint, Jones enrolled in law school to study corporate law. A clerk position with the Criminal Court judges followed. Jones finished law school and worked six months at Neighborhood Housing Opportunities while studying for a second attempt at passing the Tennessee bar exam. After passing the bar, Jones applied for an assistant public defender position under Wharton. “At first, a defender’s position wasn’t the best job, but I needed a job,” says Jones. “I started handling cases and the feeling from the clerking job came back. I grew up on a farm in Mississippi with a strict upbringing, and something about the court’s atmosphere brought that feeling back. It just felt right.”
Experience has indeed been the best teacher for Jones, who has matured beyond the “babe in the woods” who once fell for her clients’ tears and took their stories at face value. The change is evident in the confident presentation of her cases, the respect she receives from other attorneys and judges, and her defense style, which consists of a constant banter, unmistakably reasonable and convincingly probing.
Jones: Now, Ms. X, you said in your statement moments ago that from your vantage point you could see everything outside the club that night, right?
Ms. X: Right.
Jones: If that’s so, then where was Ms. Y standing … because you could see everything, right?
Ms. X: Right. She was standing beside me, I believe.
Jones: You believe or you know? Because, as you said earlier, you could see everything.
Ms. X: Well, yes, but …
Jones: But what, Ms. X? You did see Ms. Y, did you not?
Jones: Ms. Z, did you drive to Ms. Y’s home in your vehicle with three other people?
Ms. Z: Yes.
Jones: And your purpose was to do what?
Ms. Z: They were just riding with me. I went to let her know that she couldn’t [vandalize] people’s things just because she didn’t have anything.
Jones: So, let me understand. You left your home, went to the home of Ms. Y, who was alone, with three other people in your vehicle, to give her that message?
Ms. Z: Yes. I didn’t know what she might have done so I asked them to go with me.
Jones: So, you needed three people to confront one person, alone, in her front yard to give her a message, and you say Ms. Y was the troublemaker? Clearly in this situation she was not.
“The relationship between a public defender and the client is an unholy one because they don’t pick us, but we have to understand our oath for representation and those [negative] things can’t stop us,” says Jones. “Some attorneys keep a case record of wins and losses. I’ve never done that. I give my clients the best possible defense I can using all the resources available to me, and that’s how I sleep at night — knowing that I’ve done all I could.”
In order for attorneys to provide that quality service, they depend on the help of criminal investigators, who are charged with tracking down and questioning elusive witnesses for information helpful in building the defenders’ cases. “A person with short patience is wrong for this job,” says four-year investigator Jeannette Stanback. “When you have witnesses who will not talk, sometimes out of fear, you’ve got to be persistent, and sometimes they never will talk to you. I’ve worked on a case for a month without being able to turn over any information to the defender.”
As defenders’ caseloads have increased, so has the need for investigators. The office’s seven investigators are, like defenders, appointed to cases. They usually have two weeks to review a case, locate and question witnesses, and submit the information to the defender. The work is tedious, with investigators sometimes having to rely on phone and utility records, employment histories, and luck to find witnesses. “I haven’t had any [violence] problems [while locating people]. We have the authority to carry guns, but I don’t. I can usually simply talk and reason with people without fear of retaliation,” says Stanback.
Inevitably, many cases are lost and clients are fined, serve jail time, and even sentenced to die. But with sentencing comes a second chance with the office’s three-person appellate team. “We pick up cases lost in trial court and appeal them to the Tennessee Court of Criminal Appeals, and if we lose there, we appeal to the Tennessee Supreme Court,” says team supervisor Mark Ward. “If we lose there and it involves a federal constitutional issue, our only other remedy is to appeal to the U.S. Supreme Court. Our main function here is to provide the best-quality appeal that we can for Shelby County offenders that are convicted here.”
The team handles 60 to 75 cases a year at various stages in the appeal process and provides support for other attorneys. Ward has handled every death-penalty appeal in the office since capital punishment was reinstated in 1977. Since forming the five-year-old team, all three attorneys appeal death-penalty cases. “We work with the academic part of law,” says Ward. “The fun part is that we get to develop law. When we argue cases, we help mold what happens in the future.”
“The interesting thing is to watch courts apply law,” says team member Garland Erguden. “In a courtroom you deal with the emotions, the crime, and the people involved, but because the appellate process is slower and done on paper, it’s cleaner, more about ideas and concepts.”
Branching Out
“A lot of our attorneys are committed and go the extra mile,” says Jones. “We are proud of the programs we have to address the underlying problems. It’s a window of opportunity for us because once somebody is arrested, charged, sometimes it’s a wake-up call for them. We are in the business of recycling people instead of warehousing people, as [former chief] A C [Wharton] would say.”
Addressing clients’ underlying problems includes several basic needs, such as housing, substance-abuse assistance, and employment. The office has partnered with several service agencies to provide help for their clients in these areas, as well as crime prevention and deterrence methods.
“About 75 percent of our office, the entire staff, not just the lawyers, has some sort of community service going on,” says Erguden. Staff members participate in various community programs, including Habitat for Humanity, MIFA, and CASA.
Internally, the office has expanded to address the issues of clients with mental-health problems. Headed by 11-year defender Stephen Bush, the mental-health initiative has taken on a community-outreach approach. In a county-specific initiative, Bush, along with a criminal justice mental-health liaison, bridges the gap for clients between the justice system and outside assistance. With the system, some mental-health clients can participate in the plan by accepting treatment as part of their punishment.
“We were starting to see our clients with mental-health problems experience ‘case lag’ with their cases. When a person is mentally disabled, it takes much longer for their case to be handled, which was leading to jail overcrowding [and other problems]. This is not a ‘program’ but a way to use resources,” says Bush. The initiative is quite complex, with computer databases to update, housing issues to address, and more case-management resources needed. “This is not an easy thing to do, but it’s the right thing to do and this is the place to do it,” Bush adds.
In addition to tracking mental-health clients, it has long been the job of the public defender’s office to track its clients within the jail system. As the justice system administrator, that duty falls to Green. Assisted by two case checkers and one secretary, his staff is responsible for following about 20,000 cases each year. “I got started doing this inadvertently,” says Green. “At a meeting long ago, someone asked me about one of their clients that they hadn’t heard from in a while. I volunteered to check the records and found that person. He had been in jail three months and already been discharged and wasn’t supposed to be there.”
Green’s staff helps to expedite people out of jail. They receive daily printouts of cases that have been dismissed, bonded out, or released on recognizance. They also review cases that have been set off for long periods to ensure that due process is carried out. “I see myself as a do-gooder,” says Green. “If I can make a difference in one case, get one person released on time, then I feel like I made a difference.”
Acceptance
“People say ‘oh, poor public defenders,’ but if you want to be in court all day — being in court is fun, it’s academically interesting, it’s action-packed — then this is the place to be,” says Erguden. “I’ve had other jobs and I much prefer this. It’s not like TV.”
“I’m very proud of the office. It’s important that we perform a needed service,” says Jones. “The system is not always perfect. Mistakes are made, and you need something to balance out the system and that’s where we come in. Overall, we are appreciated. You’re always going to have a few that are unhappy and a lot of times those few are the ones who make the most noise. Considering that we handle 25,000 cases per year, I think the public is generally pleased with the service that we give.”
Crime and Delinquency Prevention Programs of the Public Defender’s Office
Building for the Future (BFF) — A countywide community-development partnership involving 10 agencies that provide affordable housing for low-income families built by inmates, who learn marketable construction skills for employment after their release. The program has been nationally recognized as a finalist for the Innovations in Government Award and has garnered a contract to build 52 replacement homes for senior citizens in the Shelby County area by July 2003.
Client Support Program — Volunteers from Alcoholics Anonymous, Narcotics Anonymous, and Cocaine Anonymous conduct sessions with clients to deal with problem behavior and habits. This program began in 1999 and is open to all county residents.
Adopt-A-School Program — The public defender’s office adopted Peabody Elementary School in 1994 and participates in after-school programs, tutoring sessions, and distributing achievement awards each six weeks.
Operation ASAP (Accessing Summer Activities Program) — The pilot program, operated May-August 1999, was a partnership between Greater Middle Baptist Church and the public defender’s office. The program provided 100 youth with counseling, tutoring, and recreational activities aimed at reducing risk factors associated with crime and violence. The program will possibly be reinstated next summer in other churches, with the goal that the program will be taken over by and funded by each church.
