Are Nashville Public Defenders Overworked ?

Steven Hale wrote an article in last week's Nashville Scene on the Nashville Public Defenders Office overwhelming caseload. One visit to any of the criminal courtrooms in Nashville supports that conclusion. The article does a great job setting out the facts and the money issues. A hearing was held last year arguing a case should be dismissed based upon a denial of a speedy trial. The main focus of the motion was that public defenders were over worked and could not prepare the defense.The Nashville Public Defender was represented by three attorneys at the hearing. Ms. Deaner's attorneys assert that the office should have 67 full time lawyers rather than the 44.5 full time attorneys on staff.

What should we do to solve the problem ? First, taxpayers are not thrilled that their tax dollars are being used to defend alleged criminals. The only real solution is to increase funding for the public defenders office. The Constitution demands us to fund indigent defense. I do not predict any relief from the state. It does appears that Nashville receives less per case that the state average. Since the government is not willing to step up to the plate, what else can be done ?

Effective January 1, 2017, the Nashville Public Defenders Office will not be accepting  misdemeanor criminal cases where the accused makes bond. Now the next question is what does that mean to the folks who don't get a public defender ?

Misdemeanor cases are just as important as a felony charge. Collateral consequences occur with most convictions especially a DUI or domestic violence charge. So what happens when the public defenders refuse to accept a misdemeanor bond case ?

You get a court appointed lawyer. According to the article, it will be a crap shoot. The judge or the judge's assistant will appoint a lawyer to your case. Here is an example in one case. Accused is screened by the public defender. A judge's secretary hands the accused a card to call lawyer.  Remember every judge is different and each will have a different policy.

 The lawyer may be experienced or  fresh out of law school. May have never handled a case like yours before. No formal training on handling the defense of a DUI case. Once the case is over, the court appointed lawyer will not expunge your record if the case is dismissed. Just because you"re a lawyer does not automatically make you a criminal defense lawyer. The people who may suffer is the folks who can get out of jail but not able to get a lawyer. Also, folks might even decide to go without a lawyer and waive their right to a lawyer. Let's see what happens in a couple of months.

Criminal Law Tip of the Week

I have never figured out who reads this blog. I think mostly criminal defense lawyers and a few prosecutors. In that vein, I am starting a new feature that will be posted on Mondays. It will be the criminal law tip of the week. I just hope I have a tip each week.

My first tip is procedural questions during a motion to suppress evidence. Sometimes you need to put your client on the witness on the stand to prove some fact. Some trial judges believe that the defendant/client needs to testify in certain cases to rebut the police officer's testimony .

For example, how does one rebut testimony of serving without a video? The answer is simple, put the client or other folks in the car to rebut the officer's testimony. How do you protect your client from testifying about other issues?

Rule 104(d) of the Tennessee Rules of Evidence provides as follows:  "The accused does not by testifying upon a preliminary matter become subject to cross-examination as to other issues in the case." The accused can testify as to the traffic stop or other matters. Warning: Operate with extreme care if you put a client on at a bond hearing. One of the factors is the likelihood of conviction. It might be fair game for an inquiry by the prosecutor. I very rarely, if ever, put a client on the stand for a bond reduction hearing.

Further, the pre-trial testimony cannot be used at trial according to Tennessee case law. Whether the testimony can be used for impeachment purposes is not clear.

The takeaway point is consider putting the accused on the witness stand for search warrant issues, traffic stops and other matters without the risk of exposing your client to the risk of a wide open cross-examination.

Seven Words Everyone Facing a Criminal Investigation Should Know


In my last post, I wrote about the two words every person facing a sentencing hearing must say. Words are important . It is not only how we say them but what are the words. Sometimes we need magic words. Time and time again I see folks facing a criminal investigation speak with police and law enforcement . Just today , a case where a person may have avoided getting arrested turns into a criminal conviction because they voluntarily spoke with a police officer.

What are the seven magic words that everyone should know when confronted with criminal investigation ? I want to speak to a lawyer. Why are these magic words ? Prosecutors may now discuss to a jury if you wanted to remain silent. If you ask to speak to a lawyer , evidence that the defendant invoked his or hers right to counsel in impermissible. See St. v.Johnson 743 S.W.2d.154(Tenn.1987). The reason why you are allowed to speak with a lawyer is nobody needs to go it alone in the criminal process. Police have training in getting statements and they use all their tools. we are trained to cooperate with the police from childhood. It is a natural human reaction. However , police calling you up to talk about a drug prescription or knocking on your door on a knock and talk signals a red flag.

My bottom line best advice to all those facing criminal charges from shoplifting to child pornography to murder is those seven magic words. I want to speak to a lawyer.

Scouting the Opponents

I gave across a blog post by my friend Bruce Kessler who is a DUI lawyer from Florida. Bruce wrote about sitting in a courtroom on a Friday watching a trial of no major significance. His purpose was to watch the lawyers. The prosecuting lawyers were new and he was not familiar with them or their styles. So he took the time to scout his opponents much like a football coach watches film.

Here are a couple of ideas for those facing a criminal charge;

  • Go to court before your first court date. Look around and get a feel for the process.
  • Go to the court room of the judge that is hearing your case and see how they run their court room.
  • Going to trial ? Ask your lawyer when that DA is trying a case ?Then watch them cross examine a witness. You then will discover what is coming .

For criminal defense lawyers;

  • Ask around and get some transcripts of the DA that you are facing.
  • Ask your fellow defense lawyers about the DA.
  • Watch portions of a trial and get a feel of what questions the DA is going to ask or how he presents his or her proof.

Preparing your case is more than understanding the facts from one point of view. You must be open to knowing who the cast of characters are in the play that is called a trial.


Is It Just Another October ?

I read a blog post today at  Simple Justice. Scott Greenfield wrote about whether we put too much into what the Supreme Court rules. Does their rulings affect the criminal defense lawyers in the trenches ? I do agree with his arguments that some in the legal world will analyze a ruling to the last period. An example of this the the famous footnote 9 in the  Schmerber case.

Yes, the court's rulings in the area of  criminal defense do matter. A lawyer that keeps up to date can set aside a plea bargain deal when a prior lawyer does not advise a client of immigration consequences. I love the Padilla case . I was able to use that case on a conditional plea bargain in Tennessee. I was able to free a young lady from a detention facility in Louisiana and have her case dismissed . I am hopeful that the court will affirm the McNeeley case on the blood alcohol draws. I have several clients whose blood was taken against their will and will now be used against them to prove their guilt . Maybe the U.S.Supreme Court will hold that the police cannot just take a blood sample without a valid search warrant. I may now be able to attack criminal convictions before the Padilla opinion was issued to young a young man from being deported. Some of these issues are on the court's docket this fall.

The answer for me is that the Supreme Court is important in my practice. Do  I care about all their cases ? No. I could care less on whether someone can sue in the United States  on a human rights case that occurred elsewhere. I don't always agree with the court's rulings  but when they rule on a Fourth Amendment case or significant criminal issue . It does impact a lawyer in the trenches or their client facing a jail cell.