A conversation with Dawn Deaner, a public defender running for judge

The longtime Nashville public defender discusses what she's learned from 20 years in the trenches, what needs to change, and what she would do on the bench

Photo courtesy of Dawn Deaner

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Dawn Deaner led the public defender’s office in Nashville and Davidson County for ten years. She left in 2018 and started the Choosing Justice Initiative, a nonprofit dedicated to improving the appointed indigent defense system in the city. Deaner is now running to be a criminal court judge. She’s part of a recent wave of public defenders running for the bench.

I’m also currently working on a book about public defense. So I spoke with her about what she’s learned from 20 years in the trenches as well as what she hopes to change if she’s elected.

I’ve edited our conversation for length and clarity.

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Can you tell us a little bit about your background — where you grew up, why you went to law school, and why you went into criminal defense?

Sure. I was born and raised in New Jersey, right outside of Trenton in a place called Hamilton Township. My mom was a high school English teacher, and my dad worked at a turbine factory. I didn’t know any lawyers, but I was raised in the era in which “L.A. Law” was on TV.

I loved that show growing up.

Me too. It made being a lawyer look like a lot of fun. The funny thing is I really wanted to be a judge. It seemed interesting and fun to me, probably because, as a 12-year-old, I thought I was right about everything. So I liked the idea of being in charge and getting to decide things. My mom told me that I’d have to go to law school and become a lawyer before I could become a judge. So that’s what I did. I went to college at Columbia in New York City, and then law school at George Washington in D.C.

I didn’t really know what sort of law I wanted to practice until I did an internship in my third year of law school at the Public Defender Service (PDS) in Washington, DC.

A lot of people who lead big city public defender offices seem to have gotten their start at PDS.

I just fell in love with the work at PDS. The idea of fighting for the underdog. Seeing how the vast power of the government was wielded against people. And seeing how concepts we learned about in law school — search and seizure, the power to arrest — seeing those government actions used against people felt bad to me. I really enjoyed fighting for people. When I graduated I got a job at the public defender’s office here in Nashville. I didn’t know anybody here. But I moved here to be a public defender.

I really enjoyed the work. I left the job for a year from 2002 to 2003 after I lost two really difficult murder trials. I lost them for different reasons, and I didn’t think my clients should have lost in either case. That was hard. I thought I needed to do some work that wasn’t so personally taxing. So I went to work for the city’s legal department for a year.

I quickly realized public defense really was my true calling. If I was gonna work hard, I should at least care deeply about the work I was doing. I really missed representing people. So I went back to the public defender’s office. In 2008, the head public defender was killed in motorcycle accident. I applied for the position and the Metro Council appointed me to fill out his term. I was elected to serve two additional terms as public defender for a total of 10 years in office, from 2008 to 2018.

How was leading the office different from working as a line attorney?

It was a big adjustment. I was a senior attorney in the office at the time, and I was what they called a floater — handling serious felony cases. But to go from being a lawyer to being a leader was a big jump, and I didn’t really know what I was doing. It took me about a year to figure out that leadership was different than management, and that I needed to figure out what my vision for the office was.

How so?

The PD’s office in Nashville was the only public defender office I had known. I had no idea that public defender offices in other places controlled their attorney’s workloads.

When I became the chief public defender here in Nashville, I met Mark Stephens, who was the elected public defender in Knox County. I learned about the caseload litigation he had done early in his time leading that office. I became convinced that was really the issue for public defenders — that if we weren’t limiting our cases to a reasonable workload, we were part of the problem. Our office’s mission statement at the time was to provide high quality representation to every client, regardless of their charges or their station. Well, I knew we weren’t doing that. We had way too many clients to do that.

We eventually did implement workload controls, which are still in place today. And workloads have become part of the national discussion today in the justice reform conversation. We now have National Public Defender workload standards, created during a study I was invited to participate in as an expert in public defense.

You’re talking about the Rand study and the new workload standards that came out a few years ago?

Exactly.

The perpetual problem seems to be that in order to limit workloads, you need more staff.

Right. And for more staff, you need an adequate budget. My biggest fight at the public defender’s office was always trying to increase funding for public defense. Even when I started, the state had been underfunding public defender services in Davidson County and Shelby County (Memphis) for about 20 years. The Shelby County public defender and I worked to change that, and we got some added funding. But then the state amended the statute that determines how much money it sends to Davidson and Shelby counties for public defense, and tied it to cost of living adjustments. That law took the minuscule increases our counties had been getting for 20 years and enshrined them into the new law in perpetuity. Metro supplements that funding, but the office is always under-funded.

What other issues did you work on while leading the office?

We wanted to make the office more answerable to the community, so we started a Defend Nashville campaign. I created a client-community advisory board for the public defender’s office. This was around the same time that Nashville was looking at a Community Oversight Board for police. It struck me at the time that public defenders and police are both mistrusted and disliked by the communities we serve. As public defenders, we knew our clients sometimes called us “public pretenders,” right?

I watched police resist any kind of community oversight, and I knew we needed to take the opposite approach. We needed to hear exactly how our clients and their families felt that we weren’t serving them. Poor people need good lawyers when they’re caught up in the criminal legal system. And relatively speaking, the best lawyers you’re going to get are those at a good public defender’s office. They’re experts in criminal law, and they’re experts in nuances of the particular city they’re in. It’s their specialization, right?

But that expertise is much less effective if the client community doesn’t trust us. And they’re only going to trust us once they know that we’re listening to them and meeting their needs.

The other big issue I worked on is bail, and trying to shine a light on the injustice of poor people not being able to get out of jail pretrial, often just because they didn’t have a few hundred dollars to make bond. One thing I did that I’m particularly proud of in this arena was helping to create the Nashville Community Bail Fund, which still operates today and has bailed out over 3,000 people.

What made you decide to leave the office in 2018?

There were a few reasons. The main one was that I missed practicing law. You don’t get to practice much when you’re leading an office. But I also knew our workload controls had shifted a whole bunch of people into the private appointed counsel system, which is the backup system for indigent defense if the public defender’s office cannot take the case. Our appointed counsel system has even bigger problems than the public defender option, and nobody was really addressing problems in that system. So I thought, what if Nashville had both a strong public defender and somebody who was pushing against the injustices happening to people getting court-appointed lawyers?

So I started Choosing Justice Initiative to try to improve the appointed counsel system. Martesha Johnson had been a lawyer at the public defender’s office for nine or ten years by then. She was the first lawyer I hired there. I knew she was interested in leadership, and I knew the office would be in capable hands if she became our next Public Defender.

How is CJI funded?

We have diverse revenue streams. When I developed our model, I looked to a couple other organizations. Arch City Defenders out of St Louis was one of them. And Alec Karakatsanis at Civil Rights Corps is a hero of mine.

I saw how CRC was able to pursue civil rights litigation and use the attorney fee awards to support their work on behalf of people who couldn’t afford to hire lawyers. CJI also seeks charitable donations and grants, and we earn legal fees through court appointments. My original concept also included a grant from Metro to support the work of court-appointed lawyers and that came to pass just two years ago when CJI launched the IDEA Pilot Project in Nashville.

To date, CJI has been part of three civil rights cases. We won attorneys’ fees on two of them, and received a portion of a settlement on the third. But civil rights cases take a while, and they take some expertise, making them an unpredictable revenue source.

Now that you’ve been away from it for a while, what’s the big thing you took away from your time leading the public defender office in Nashville?

I would say it’s that the criminal legal system really doesn’t help anybody much at all. That’s a blanket statement, and I wouldn’t say it’s the case 100 percent of the time. But for the most part, people who go through the system come out feeling unsatisfied — they don’t feel like very much justice happened. And I’m talking about everybody involved, whether you’re somebody who was charged with a crime, somebody who has been harmed, or a witness or family member of someone involved.

So for me it was about trying to get people out of that system through alternatives, through diversion, through restorative justice, through programs like community mediation. It was about trying to let people know that you don’t have to go through the criminal legal system to resolve disputes and to address the harm that you’ve experienced.

I also see the bail fund and CJI as part of harm reduction work. As long as the current system exists, people need to get out of jail while their cases progress through the courts — so they can work, pay rent, and be there for their kids. They need good lawyers, lawyers who will fight for them. So with CJI we’re trying to provide community members with the power to choose their attorney.

With normal court appointments, a judge calls up the lawyer and says, I have a case, will you take it? And the client has no choice in the matter. At CJI, we take court appointments because somebody in the community heard about us, calls us, comes by and says, “Hey, I or my relative got in trouble. I need a lawyer. Can you represent me?” And if they qualify for appointed counsel, we go to the court and ask to get appointed.

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Have judges been amenable to that?

I’ve rarely had a judge tell me no. The Tennessee Supreme Court has expressly ruled that poor people don’t have the right to pick their appointed lawyer. Well, okay, you may not have a right to it, but that doesn’t mean a judge can’t appoint the lawyer you want. So that’s the model we’ve operated on.

But you did get some resistance from at least one judge.

Early on, our model got me sideways with Cheryl Blackburn, the judge who retired from the seat that I’m now running for. She filed a board complaint against me, an ethics complaint, and put a gag order against me prohibiting me from talking to anybody who had a case pending in her court unless I had their lawyer’s permission to talk to them. I think that was the wrong thing for her to do, and I think it violated my right to free speech.

But more importantly, it prevented people in jail who didn’t think their appointed lawyers were representing them effectively from getting better representation. I’m talking about people in jail who hadn’t seen their lawyers in over a year, hadn’t communicated with them. There were people whose lawyer hadn’t filed any motions for them, or hadn’t even sent them a copy of the indictment. Folks were reaching out to CJI and were asking if we could help them get a lawyer who would do the minimum. The bare minimum. Her order prevented me from talking to those people, under the threat of contempt charges. I ended up suing her and the Board of Professional Responsibility in federal court. It also took the Board almost two years to resolve the complaint against me, which was ultimately dismissed.

Is the gag order still in place?

Oh yeah, the gag order stayed. CJI is a small nonprofit where the work of helping people is our priority. I planned to go back and challenge the order, but never got to it.

So does that mean CJI can’t talk to anyone who is unhappy with their court-appointed attorney without getting that attorney’s permission first?

No, we can. There are six criminal courts in Davidson County, and her gag order only applied to defendants in her court. So we were still talking to people calling us with cases in the other five courts. And when she retired I believe her gag order retired with her.

So what are the professional ethics of talking to someone who is currently represented by another attorney?

There is this perception, professional understanding, courtesy — whatever you want to call it — that you’re not going to talk to my client unless you call me first. But it’s not uncommon for people to be unhappy with how they’re being represented, especially with court-appointed counsel. They want a second opinion. They want to shop around. And I don’t see anything wrong with that.

When a poor person calls you up and says, “I don’t think my appointed lawyer is helping me. And I heard you’re running a program where you might be able to help me get a better lawyer who actually listens to me,” I’m not going to call their court-appointed lawyer first and say, “Hey, your client is unhappy with you and they want to talk to us about finding them a better lawyer.” Because what if it doesn’t work out? The person calling me is often worried that if their lawyer finds out they’re trying to fire them, or hears that they’re saying bad things about them, they’ll do even less for them. Now they really won’t fight for them. I believe that poor people have a right to talk to lawyers to get second opinions, and there’s nothing unethical about a lawyer talking to someone with court-appointed counsel for that purpose.

That’s a good segue to a follow up-question I have about the workload standards you instituted at the public defender office. When I’ve talked to public defenders in offices that don’t have workload limits, they struggle with figuring out when to say they can’t take on any more cases. They know when their workload is affecting their effectiveness, but many also know if they don’t take that additional client, the client will be passed off into the assigned counsel system, where they’ll get worse representation. Imposing strict workload standards is obviously the best way to address that problem. But what advice would you give public defenders in offices that don’t have those limits?

That’s a very hard thing to do, creating strict standards. I think people want policymakers and judges to draw these bright lines. You’ll do this number of cases, and that’s it. I don’t subscribe to that philosophy. I think it very much has to do with how you feel as a lawyer, about your ability to meet all of your obligations for all of your cases. And I think we should trust lawyers’ professional judgment when they say they have enough cases.

But I think we also need to look at this from a broad perspective. We have an adversarial legal system, and that adversarialness extends beyond the courtroom into competition for scarce government resources. Everyone — the prosecution, the defense, the judiciary — is competing for the same pot of dollars. Prosecutors also have to deal with workload. How many cases is too much for one prosecutor to have? I’m sure there’s a number after which they’re less effective too, but I haven’t ever heard of a single prosecutor talk about limiting their workloads. It’s almost like they don’t realize that the ability to limit their workload is within their political purview. If [Nashville District Attorney] Glenn Funk decided tomorrow that he didn’t have enough staff to handle all of the criminal charges that were coming from the police department, he could make a decision that he just wasn’t going to bring criminal charges for the lowest level offenses. He could do that. That’s well within his discretion. It might be politically unpopular. But it also might prompt the legislature to give him more money to hire more prosecutors.

Public defenders don’t have the same kind of power. Refusing cases is an option, but not in the same way a prosecutor can just stop bringing charges. Look at what’s happening in San Francisco right now. The public defender was just held in contempt for refusing cases. You know, there’s just no bright line rule. I think lawyers know what feels like too much for them, and we should honor that.

I’ve noticed a generational split among public defenders on issues of workload and work/life balance. The lawyers who have been around for a while will say that misery is part of the job. The grizzled public defender with too many cases and no personal life is part of their identity.

I know what you’re talking about. There’s almost a sense of pride among older public defenders at being overworked. “I represented 20 people in a single day on the jail docket. If I did it, these kids can do it.” But it’s like, no, you did something wrong. And we know better now. We shouldn’t be doing that anymore. It isn’t even about you. It’s about being effective for your clients. And you can’t do that with 20 hearings per day.

I have a few friends who are in law firms, and the hours they work in these big law firms are insane. But they’re also being paid huge sums of money. Salaries for public defenders in Nashville are better today than they were when I started, but they’re not making anywhere near what people make for putting in similar hours at a private firm.

I don’t know any lawyers who are working 35-hour weeks, right? You know that you’re going to be putting in extra hours if you’re going to trial. You know you’re going to be working those weekends. But there has to be some balance. It just isn’t sustainable to be paid low wages, work 60 hours to 70 hours a week, and deal with the vicarious trauma that comes from representing people in the criminal legal system. There’s the emotional toll that comes with watching person after person after person churn through the arrest, court, and incarceration process.

How have you coped with that trauma over your career? What have you told new public defenders about how to cope with it when you were leading the office?

You know . . . I think . . .

If it helps, the most common answer I get to that question is “badly.”

Ha. My joke is that it helps to have a tiny cold heart, so nothing can really get to you.

But I think that there’s a couple of things that have kept me in it this long. First, I changed positions frequently. I started in General Sessions Court, and then I went to criminal court, and then I did appeals. I left for a while and learned about civil practice and then I came back. I was a team leader. Then I was a floater doing serious felony cases. So I think getting the opportunity to try out new roles and learn new things kept me with a fresh perspective.

And then I became the head of the office and had a whole set of new challenges. I had to learn how to lead internally, and I then had to learn how to lead externally, in terms of systems change and systemic reform. I had to learn how to cultivate staff and new lawyers. I had to learn how to manage people. So I’ve had lots of different challenges that have kept me learning. So I think I was able to process the injustice and all of the horrible things I saw because I was constantly learning and fighting for a better system.

But I also think it helps to have a lot of fight in you. You get down and you feel defeated — as I said, I left for a year because after I lost a second murder trial that I didn’t think I should lose. Both clients sentenced to life. I couldn’t get up off my couch for a week. But when you care about helping people, when you want to fight for them, you find ways to pull yourself together. A good night’s sleep always helps, so I try make sure I get that every night. Take a vacation every now and then.

Turnover within public defense remains steady. It’s difficult because with the low salaries, you can’t keep people there long enough to build up the right kind of experience.

I’ve seen offices fall into this perpetually reinforcing rut where attorneys get overwhelmed with high caseloads and quit, at which point their cases fall to the attorneys still at the office, which prompts more people to quit because they’re so overwhelmed.

It makes it very challenging to build a deep bench, and so a lot of public defender offices struggle with staffing of serious cases. That was one of our challenges in Davidson County. When we implemented workload controls in Nashville, we made the decision to cut back on the least serious cases. So we stopped taking clients who were just charged with citations. And then we stopped taking clients who were charged with misdemeanors and were out on bond. But those cases are where your youngest lawyers get training and experience. When you start to have turnover, it tends to be the lawyers who’ve practiced for three to five years who leave. So you get this gap in experience. And pretty soon, you haven’t built lawyers who have enough experience to first chair a murder case.

So you’re always understaffed, both in the number of attorneys, but also in attorneys with the appropriate amount of experience to handle more serious cases.

In visiting offices around the country, there’s a noticeably different vibe in the offices that do holistic defense — where they address all the ways that the criminal legal system harms people from housing, to mental health, to family law, to immigration, and so on, and where they also work to change the system in general. There seems to be a lot more job satisfaction, optimism. The attorneys seem energized at the idea that they’re not just churning people through the system, they’re trying to change things.

We really need to find a better word than holistic. We use it, and that’s what we do here at CJI. But I think when you say holistic to the average person, they think you’re selling incense. Wrap-around services, maybe?

I’ve also heard “client-driven” or “client-centered.”

Yes, comprehensive legal services. So if you have an order of protection with your domestic violence charge, here at CJI, we will represent you on both of them. If you get arrested on a drug case and have a civil asset forfeiture action against you, we’ll represent you on that.

Which, that’s exactly what people with money do, right? They just hire a lawyer to represent them on all the things.

Tennessee is one of only two states that elects a chief public defender in each judicial district. What effect do you think that has on how public defense is administered here?

Oh, that’s a hard one. There are a few cities that still elect public defenders too, including several in California. I served on a committee with Brendan Woods, the Public Defender in Alameda County, CA, and he really champions that system. As an elected official, you have independence, and your independence is the voters.

I think that’s mostly been my experience in Tennessee, especially in a place like Nashville, where residents generally understand the need for good public defense. But I’ve seen the negative side too. I remember a budget meeting where the head of the public defender conference was giving a presentation, and he said something like, “We’re blessed in our district to have five public defenders to handle 4,000 cases every year.”

That’s an incredible workload.

And then he was like, “I’m supposed to have four lawyers and one investigator, but I converted the investigator position into a lawyer position. So that’s why I now have five lawyers to handle the 4,000 cases we have every year.” He was proud of this.

At the time, I was in the midst of trying to implement new workload controls, and here’s the head of the public defender conference in Tennessee saying it’s great to have five lawyers take 4,000 cases. And it’s a multi-county district. So his attorneys also have a lot of travel time between different courts.

My feeling on elected public defenders is that they can be a very good way to maintain independence, but only if you’re electing people who understand the ethical obligations of public defense.

I read an interview you did with the Nashville Scene few years ago. You talked about the impact the book Ghettoside had on you, and specifically how community disillusionment with law enforcement bred mistrust of legal channels, so people resolved disputes in other ways, including sometimes violence. I fear we may see a similar problem with immigration enforcement. It’s going to be harder for public defenders to get witnesses to testify in criminal cases. It’s going to be harder for prosecutors to get witnesses to testify.

Yes. Yes to all of that. It’s just bad all around – there’s, there’s nothing good that comes from it.

I mean, the courthouse arrests just seem particularly destructive. If ever there were a place that you wanted people to not be afraid to go to, you would think it would be a courthouse.

I mean, immigrants right now are afraid to call 911 if someone is overdosing. Because law enforcement is going to show up, and they don’t know if it’s going to be someone from an agency cooperating with ICE. They’re afraid to take their kids to the hospital. It’s all bad. It’s just all bad.

I don’t think people realize how poorly the system treats the the mentally ill. I’ve asked dozens of defense attorneys what haunts them most about their jobs, and the most common response is those mentally ill clients who sit in jail for months, deteriorating while they wait for a competency evaluation or a bed at a hospital. The system seems to be just completely failing when it comes to people with mental illness. Which I guess makes sense, because it wasn’t designed for that.

That was my experience, too. When I started in 1996, I don’t feel like it was as bad as it is now. It’s gotten progressively worse. I think it’s largely because of defunding of mental health treatment and mental health care and mental health hospital beds. There was a big push against deinstitutionalization for all the right reasons. We were institutionalizing mentally ill people in facilities where conditions were horrible and they weren’t getting proper care and treatment. And we came to understand that people are better when they can live in community with people who love them and who can care for them. When they’re not corralled together into like warehouses they’re just healthier. So there was a move for deinstitutionalization and less restrictive housing and care accommodations.

But what happened was, as they closed down the hospitals, they didn’t adequately fund and provide for the types of care and services people need to live in the community safely. And at the same time, we’re ramping up on tough on crime policies and mass incarceration. So police became the front line responders, jails became the new mental health warehouses, and the criminal legal system became the main institution that treats mental illness. That’s just not sustainable.

If you don’t understand that your behavior is a crime, or if you aren’t able to assist in defending yourself, we shouldn’t be prosecuting you. To me, seems like the only moral position to take. But public sentiment today is on accountability. So jails and prisons have become the largest mental health treatment facilities in the country. And until we start returning resources to treating mental illness as a healthcare problem and not a criminal justice problem, that’s going to continue.

It’s unfathomable to me that when someone is declared incompetent, they’re only treated to the point where they’re competent to stand trial. So at best, even when everything works as it’s supposed to, you haven’t made this person better than they were before. And then you’re putting them right back out there with no treatment. It isn’t just cruel, it seems counterproductive for public safety.

And even when someone comes back as incompetent, there’s the question of whether or not they’re committable, particularly if they’ve been in jail for a long time. If they’re in jail, doctors working for the state will often decide they’re not committable because they’re not a danger to themselves or to others in their current environment. Because they’re in jail. I mean, how bad off do you have to be to be a danger to yourself or to others when you’re in jail?

So unless you’re very, very sick, a lot of times doctors will say you’re not committable. So you get released from jail back into the community. They might put you on a mandatory outpatient treatment program if you’re found not guilty by reason of insanity, but so many places don’t have the funding needed to get that evaluation done. For several years, the state stopped funding competency evaluations for misdemeanor cases, which resulted in a big gap in services.

When I first started practicing, the state paid for all forensic evaluations, regardless of the charges involved. At some point, the state decided it needed to save money, and shifted that cost to local governments for misdemeanor cases. For a long time, Nashville did not allocate funding for that. So we would be in the situation of having clients charged with misdemeanor offenses who in our opinion were clearly not competent to stand trial. They’d probably have had an insanity defense for whatever the misdemeanor charge was, but you couldn’t get an evaluation.

Wow. I wasn’t aware of that. You’d think you’d want to find and treat people after misdemeanors, so they get better before committing more serious crimes.

You enter this endless cycle. They get released from custody after who knows how long because the lawyer who’s representing them can’t ethically let this person plead guilty to anything. They can’t do a trial. They can’t do anything. They’re not competent, but you can’t get the competency evaluation. The state can’t go forward either. So ultimately the case has to be dismissed. The person is released from custody, and they go on to commit some other act largely caused by untreated mental illness. It’s what happens with systems. The system just takes over, and individual actors don’t really feel like they have the ability to step in and do anything different.

Why did you decide to run for criminal court judge?

So as I mentioned, I wanted to be a judge at age 12. But the longer I did public defense work, the more I thought I really didn’t want to be a judge. Advocating for people in the system became part of my identity. It’s hard to walk away from that. The main issue that prompted me to start thinking about it was the appointed counsel system. I’ve been working at CJI now for seven years to try to make changes to how lawyers are appointed, to push system actors, judges, lawyers, prosecutors, to do something different. We have been fortunate enough to start a pilot project here with CJI, with funding from the city. But it’s a drop in the bucket. I continue to see so many people going through the system with lawyers who are overwhelmed and under-experienced, who aren’t providing effective representation. I think the criminal courts need more people who bring the perspective of a public defender.

If you’ve never done indigent defense you don’t know what it takes to provide good representation to somebody who can’t hire a lawyer. Indigent defense is different than retained criminal defense. There are different issues you’re dealing with when your clients don’t have money and resources. Here in Davidson County, five of our six criminal court judges are former prosecutors. We don’t have any former public defenders on the Criminal Court bench. We have judges who have served as criminal defense lawyers, but not public defenders. I think we need that perspective on the bench to provide some balance, to identify where there are problems and come up with solutions that make the court system work better.

How much can a criminal court judge really do to address these issues we’ve been talking about? I think most people believe they mostly just preside over trials.

Something most people don’t understand about judges is how much discretion they have in so many of their decisions. If somebody’s convicted of aggravated robbery, there’s a mandatory prison sentence. I don’t have any control over that as a judge. But I do have control over whether they get eight years or 12 years. So that’s one little piece of discretion.

At the administrative level, judges can make a big difference. A judge controls the docketing of cases. A judge decides substantive issues involving speedy trial rights, pretrial release, suppression of evidence — whether a search, a seizure, or an arrest was lawful. They decide whether the prosecution has treated the defendant with due process — and if they have not, what the consequences should be. And ultimately, judges in Tennessee are responsible for picking the court-appointed lawyers who get each case. Most states do not put trial judges in charge of picking the lawyers.

But isn’t that a problem? Public defenders who work in states where judges make indigent defense appointments have told me that it affects how they handle cases. If you’re a judge who doesn’t like a lot of motions that slow down your docket, I’m not going to risk pissing you off by filing motions. My income is dependent on you continuing to give me cases.

Exactly. It is a huge problem! It should not be that way. The Tennessee Supreme Court has been told this repeatedly. They are finally moving toward an indigent defense commission structure. But they’ve also appointed judges to that commission. And I just don’t think judges should be in charge of deciding who’s appointed to represent somebody. It just seems so obvious.

That said, you want the person exercising that discretion to be somebody who understands indigent defense. If you’ve only ever been a prosecutor, you don’t know what effective representation means, what it looks like, what it requires. I have seen cases in Nashville where judges have appointed lawyers to first degree murder cases who have been practicing one or two years. They’re lead counsel! A lawyer that inexperienced is nowhere near qualified to represent someone on a charge like that.

The problem is that judges in Nashville and Tennessee have way too many cases right now, and not enough volunteer lawyers in their courtroom raising their hand saying, “I’ll take that appointment.” They’re struggling to find lawyers, so they’re appointing lawyers without any knowledge of what their case loads are like. There’s one lawyer in Nashville who I know has more than 100 cases right now, and somewhere in the vicinity of 20 of them are murder cases. Judges should be asking lawyers how many cases they currently have before assigning them a new murder case, even if they think they’re a well qualified lawyer.

If a lawyer won’t tell you how many cases they have, you don’t assign them new ones.

Is the problem here that lawyers don’t want to reveal their caseloads, or that they don’t want to admit that they’re overwhelmed?

An overwhelmed lawyer should say, “I cannot take another court appointment. I have too many cases.” Some don’t feel comfortable doing it. Some feel pressure not to say that. It’s a big problem that’s only getting worse. And I don’t think that anything is going to change until a judge does something about it — until a judge says we can’t keep doing it like this. If it turns out that making sure the attorneys getting these cases aren’t overworked results in an even more urgent shortage of attorneys, then that’s something the Administrative Office of the Courts and the Tennessee Supreme Court need to know about. And they can figure out how to address the problem. But if no one is asking these attorneys about their workload, they’ll just keep taking cases, and we never really know the true extent of the problem.

Where does Tennessee rank in pay for attorneys who take indigent cases?

At about the bottom. A few years ago, the hourly rate went from $50 to $60 per hour. When it was $50 an hour, it was clearly the lowest rate in the country. But 60 bucks an hour isn’t much better. We’re still at or near the bottom. We also have case caps, so once you work a certain number of hours, if the case isn’t resolved your rate actually goes to less than 60 bucks an hour.

The thing you also have to remember is that just the office overhead for the average lawyer is more than 60 bucks an hour now. If you’re a court-appointed lawyer, your 60 bucks an hour covers all the resources you put into that case. If you have a secretary or a paralegal helping you, you can’t bill extra for their time. If I’m a lawyer in private practice, I get 60 bucks an hour for my services, and I get nothing more for the case. For many of these lawyers, the vast majority of their income comes from court appointments. So they’re not earning money from paying clients to make up the difference for the losses they’re taking on the court appointed cases.

I’ve seen similar figures from a few other states — where the average hourly overhead costs are higher than the hourly rate for indigent cases. Seems like a good way to ensure an inadequate defense.

Yes. That’s why two years ago, Jodie Bell and I presented a proposal to the Metro Council to fund supplemental pay for lawyers willing to take court appointments in serious felony cases. The council funded it as a pilot project. They gave us $400,000 to get it started, and we recruited lawyers. Our goal was to recruit lawyers back to court appointments who had left the practice. We pay an extra $125 per hour, so lawyers who take those cases are getting paid $185 an hour, when you add in what the AOC pays. That puts them closer to the rate that lawyers make in federal court appointments. We got a second year of funding, and the project is still running out of CJI, but there are challenges. We still can’t recruit enough lawyers to take the number of referrals we get from the courts, and we don’t have enough money to take all the cases.

If you are elected, would you be able to assign cases to a CJI lawyer as a judge, or would that be considered a conflict?

The truth is, if I get elected I’m not sure CJI survives. CJI is a really tiny nonprofit. Right now it’s just me and a part-time employee running the pilot project. If it does survive, I don’t think it would be a conflict of interest, because I wouldn’t be running the program anymore. It would be in the hands of CJI, and I wouldn’t be at CJI anymore. So I don’t think it would be a conflict of interest.

Is there anything we haven’t talked about that you want people to know — about public defense, indigent defense here in Nashville, or about your campaign for the bench?

I’m the best candidate, and everybody should vote for me. [Laughs.]

Other than that, we haven’t had a public defender on the criminal court bench in the last 30 years.

It seems like public defenders running for judge is a fairly new phenomenon. It’s definitely much more common now than it was 10 or 15 years ago.

I think we really saw more of it during the Biden administration when he started appointing more public defenders to the federal bench. I think it made more people see that was possible. And then of course putting Ketanji Brown Jackson on the Supreme Court.

If we’re going to change the way the justice system looks, we need to change the people who are presiding over it. We need people who bring a different perspective to the bench. So that’s what I’m trying to do. I have a good track record of showing that I can make things better for people in our court system.

Just one more question: Like a lot of blue cities in red states, Nashville and Memphis have been getting a lot of pushback from the state legislature. Red state governor like Ron DeSantis have been targeting progressive prosecutors. And there’s a lot of right-wing criticism of judges they see as too lenient on issues like bail and sentencing. If you win this election, do you think the legislature will be targeting you? And how will you adjust to that?

I don’t expect there to be a target on my back. I would actually hope that people would be watching closely to see if I do anything different. I’d like to think that if I get elected, it will be because people are looking with hope and belief in something better. I’m sure I’ll do some things that some people will disagree with. That’s how change happens.

All I can say is that I will do some things very differently, but with an eye towards justice, fairness, and trying to make the system better for the people who it impacts, whether it’s someone facing charges or someone who has been harmed by someone else. It’s about the humanity of everybody who comes into the courtroom. Those folks deserve to be seen and treated with respect. They deserve a judge who’s willing to stop and say, maybe we need to do something different here.

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