Today the Fairness subcommittee of the Tennessee Death Penalty Study Committee met to continue its discussion about how to improve representation for indigent defendants charged with capital crimes in Tennessee. Report after report cited in the Committee, including reports by the American Bar Association and the Tennessee Bar Association, highlight the lack of adequate defense services available to indigent defendants in our state who are on trial for their lives.

The Fairness subcommittee decided to recommend to the full Committee that an independent office of death penalty representation services be established in Tennessee in order to address some of the problems with the current system.

This office would be charged with raising qualification and training standards for attorneys defending capital cases; monitoring capital case workloads and performance to ensure that defendants were being represented adequately; determining the services that defense attorneys need to defend their clients; setting compensation rates for capital counsel; and finally recruiting and appointing counsel and/or providing judges with a list of qualified counsel from which the judge could appoint.

The subcommittee recommended in a 3 to 2 vote to send these suggestions on to the full Committee for consideration. Voting for the proposal were Bill Redick of the Tennessee Justice Project; Rich McGee, representing the Post Conviction Defenders; and Tom Lee, appointed by Governor Bredesen to the Committee. The two votes against the idea were cast by Elizabeth Ryan, representing the office of the Attorney General and by John Campbell (filling in for Al Schmutzer) representing the District Attorneys General Conference.

However, nothing about the creation of this office impacts the prosecution. Their objections centered around creating another government office (though all agreed that the current system has problems) which they do not believe to be necessary as well as their concern that judges maintain appointing authority for attorneys to represent indigent defendants, even though many trial judges themselves have never defended a capital case or may not know any lawyers in their districts who are able to defend a capital case. And, in actuality, these judges may actually welcome the opportunity to be relieved of the burden of finding and appointing defense counsel to indigent clients.

Here is what I find most interesting. Though prosecutors have access to the services of the TBI and FBI at their disposal and though they do not have to ask a judge for the permission or the funds to hire experts, etc., both Ryan and Campbell still object to the creation of an office established by the defense bar to level the playing field for poor defendants.

Though in statement after statement during these hearings, (and stated again today during the meeting), prosecutors have claimed that they want to work with the best defense attorneys in these trials because it makes the trials go more smoothly and raises far fewer issues later. And yet, they resist the creation of this office which would give them what they say that they want--better defense attorneys. And, though the creation of this office would have no effect on their ability to prosecute cases in any way, they still find reasons to reject it.

The full Committee will discuss the idea of an independent office of death penalty representation services in more detail tomorrow as well as hear testimony from a couple of Tennessee Supreme Court justices and Barry Scheck, cofounder of the Innocence Project. The meeting will be held in Room 12 of Legislative Plaza from 10:00 a.m. to 4:30 p.m.