IN THE GENERAL SESSIONS COURT FOR KNOX COUNTY, TENNESSEE MISDEMEANOR DIVISION June 10, 2008 TRANSCRIPT OF THE PROCEEDINGS IN RE: ) ) PETITION OF ) No. (None Assigned) KNOX COUNTY PUBLIC DEFENDER ) ____________________________) APPEARANCES: HONORABLE GEOFFREY P. EMERY HONORABLE BOBBY RAY MCGEE HONORABLE TONY W. STANSBERRY HONORABLE CHARLES A. CERNY, JR. HONORABLE ANDREW JACKSON, VI MR. T. MAXFIELD BAHNER MR. HUGH J. MOORE, JR. MR. D. AARON LOVE Attorneys at Law 1000 Tallan Building Two Union Square Chattanooga, Tennessee 37402 MR. DOUGLAS EARL DIMOND Assistant Attorney General State of Tennessee Post Office Box 20207 Nashville, Tennessee 37202-0207 2 1 I N D E X 2 OPENING STATEMENTS By The Court 4 3 By Mr. Bahner 10 4 WITNESS: 5 MARK STEPHENS 6 By Mr. Bahner 15 By The Court 63 7 ISAAC MERKLE 8 By Mr. Moore 69 By The Court 74 9 JAMIE POSTON 10 By Mr. Love 81 11 CHRISTY MURRAY By Mr. Love 88 12 NORMAN LEFSTEIN 13 By Mr. Bahner Qualifying testimony 93 14 Expert testimony 100 By The Court 118 15 TOM DILLARD 16 By Mr. Moore 121 By The Court 129 17 DON BOSCH 18 By Mr. Moore 131 By The Court 139 19 JERRY BLACK 20 By Mr. Bahner 142 21 ARGUMENT By Mr. Dimond 151 22 By Mr. Bahner 159 23 THE COURT 161 24 ****** 25 3 1 E X H I B I T S 2 Exhibit No. 1, 3 Assignment of attorneys 42 4 Exhibit No. 2, NAC Standard 13.12 42 5 Exhibit No. 3, 6 ABA Standards Defense Function 52 7 Exhibit No. 4, Maintaining an Effective Public 8 Defense System 59 9 Exhibit No. 5, Caseload figures 61 10 Exhibit No. 6, 11 2007 Statistical Report 73 12 Exhibit No. 7, 2008 Statistical Report 73 13 Exhibit No. 8, 14 Lefstein CV 99 15 Late Filed Exhibit No. 9, Lefstein affidavit 100 16 Exhibit No. 10, 17 Rule 8 113 18 Exhibit No. 11, ABA Opinion 06-441 115 19 20 21 22 23 24 25 OPENING STATEMENTS - The Court 4 1 (Whereupon, the aforestyled cause came 2 on to be heard before His Honors Emery, McGee, Stansberry, 3 Cerny and Jackson, and the following proceedings were had, 4 to wit:) 5 JUDGE EMERY: Good morning to all those 6 assembled here. We'll try to get as many of you in as we 7 can so you can hear, but we have obviously limited space in 8 this facility. But it is conducive to having all five of us 9 appear at the same bench. 10 I guess I need to note who we have here, 11 for the record. 12 MR. STEPHENS: Your Honor, of course, I'm 13 Mark Stephens; Hugh Moore, Max Bahner. Sitting at counsel's 14 table, Aaron Love also will be serving in a capacity of 15 presenting witnesses of the proof. Norm Lefstein is an 16 expert who will be testifying on our behalf. Isaac Merkle, 17 who is seated here at the end, and of course you know 18 everybody in the audience. Do you know Mr. Dimond, Doug 19 Dimond? 20 JUDGE EMERY: Yes. 21 MR. DIMOND: Doug Dimond from the 22 Attorney General's Office, just by myself-- 23 JUDGE EMERY: There's no one here from 24 the State Controller's Office. 25 (Off the record discussions held simultaneously.) OPENING STATEMENTS - The Court 5 1 JUDGE EMERY: And Ms. Sykes from the 2 Administrative Office of the Court. 3 MR. STEPHENS: Your Honor, please, also 4 - I'm sorry - Angela Williams is here on behalf of Max and 5 Hugh and Aaron, as a part of that law firm, and she'll be 6 assisting. 7 JUDGE EMERY: Okay. Thank you. 8 We are convened here this morning to hear 9 proof of the Public Defender to suspend the appointment of 10 cases of indigents in Misdemeanor Court. The Public 11 Defender filed a sworn petition on March 26 of this year and 12 requested the opportunity to present further proof in the 13 way of live testimony to support his petition for relief. 14 We, as Judges, realize there is 15 considerable interest in this proceeding, and that's why 16 we've noticed the various agencies: State Attorney General, 17 Administrative Office of the Court, Comptroller. Some 18 people might ask, Why are we all here en banc? All five 19 judges were served a copy of this petition for relief by the 20 Public Defender, and we think that for the purpose of 21 judicial efficiency and economy that it is prudent to hear 22 all the proof in regard to this matter one time rather than 23 five. The decision as to whether to grant the relief that 24 the Public Defender has sought obviously is going to be a 25 decision made by each judge, but it makes a lot more sense OPENING STATEMENTS - The Court 6 1 to have one hearing rather than five hearings. 2 I think, first of all, we need to 3 probably, at the outset, take up the issue that's been 4 raised about the jurisdiction that was noted in the State 5 Attorney General's response that we received yesterday. As 6 to the authority to conduct a hearing on bond, I think we've 7 covered that. We hope it will facilitate the proof here and 8 allow each of us to make an informed decision of what issues 9 and facts are involved. It is obviously undisputed that we 10 have the authority to grant relief under Rule 13. There are 11 some collateral issues to that and how that it is to be 12 done. 13 With respect to the State Attorney 14 General's motion to intervene or a motion to join the AOC as 15 a party, we noticed that there were basically three points 16 of authority cited. One involved Tennessee Rule of Civil 17 Procedure 19.01. The second involved Tennessee Rule of 18 Procedure 24.01. 19 We think the beginning point of that 20 discussion is that you start with the scope of the rules, 21 Rule 1, and the scope of the rules, Rule 1 says these rules 22 shall not apply in General Sessions Court except in three 23 instances, and none of those three instances is apposite to 24 the hearing that we have here today. We do acknowledge, 25 however, that the State Attorney General has an interest, OPENING STATEMENTS - The Court 7 1 under the statutory duties described in Title A, to be 2 involved in matters that affect the State, but we do not 3 view this--and I've said this before informally, and we all 4 have, that we do not view this as a trial or an adversary 5 proceeding. We view this as a proceeding held pursuant to 6 Rule 13. We certainly will consider the State's opinion if 7 they have one - I think they do and want to express it - as 8 to the scope and nature of any relief the Public Defender 9 may receive if they're able to carry their burden of clear 10 and convincing proof that relief is required under the rule. 11 The order of proof, as we think it should 12 go forward today, is to allow the statement on behalf of the 13 Public Defender to open, have a presentation of witnesses in 14 support of your motion. There may be questions asked by 15 various judges on this panel, obviously, since they have to 16 make that decision, and then hear from the State Attorney 17 General. 18 And you're not calling any witnesses? 19 MR. DIMOND: No. I just have legal 20 argument. What capacity do you plan to hear from the State 21 Attorney General; as a party, or as simply--or are you just 22 going to hear from us, because we filed a motion to dismiss 23 based essentially on legal grounds, Your Honor. So I just 24 am not sure--this is an unprecedented hearing. I-- 25 JUDGE EMERY: Oh, yes. It's not totally OPENING STATEMENTS - The Court 8 1 unchartered waters, but it's somewhat unchartered waters. 2 Obviously, there was a similar type proceeding--similar, not 3 exactly the same, back in 1991, and that case, I think the 4 State did not get involved in that. 5 Does anybody have any... 6 JUDGE MCGEE: I think in our discussions 7 we have militated against formal structure here. We simply 8 want to hear everybody's position. 9 JUDGE EMERY: And I would also note for 10 the record that we did seek an opinion from your--from the 11 office sometime ago about whether or not the law provided, 12 summarily--summary suspension and relief to the scope that 13 is being sought in this case. 14 MR. DIMOND: Do you prefer I stand or sit 15 when I respond to Your Honor? 16 JUDGE EMERY: What? 17 MR. DIMOND: Do you prefer I stand or sit 18 as I respond to-- 19 JUDGE EMERY: We just want to make sure 20 we get you. We can hear you all right. If the court 21 reporter can hear you and all the judges can hear you, you 22 may sit. 23 MR. DIMOND: Yes, we did not do an 24 opinion. That was certainly not out of any disrespect for 25 the Court, but we haven't had--we always represent a party, OPENING STATEMENTS - The Court 9 1 and we didn't feel that we could offer you an unbiased and 2 neutral position that we could take when we usually do an 3 opinion. 4 JUDGE EMERY: Okay. Then I think--any 5 questions for-- 6 JUDGE CERNY: Just as a practical matter, 7 this courtroom has got an acoustic dead spot, and so when 8 you're in the center, particularly what we're using as the 9 witness stand, you'll have to speak loudly enough to be 10 heard. 11 JUDGE EMERY: All right. Are we prepared 12 to swear in the witness? I would ask at this time that all 13 witnesses testifying in this proceeding here today come 14 forward to be sworn. 15 MR. BAHNER: Your Honor, we are going to 16 call some local lawyers this afternoon. 17 JUDGE EMERY: We'll swear them in at the 18 appropriate time. 19 (Judge Emery swears the witnesses.) 20 JUDGE EMERY: Okay. Since it's not a 21 trial, we're not invoking the Rule either. We've all agreed 22 to that for today. 23 Who's up first? Mr. Bahner, are you? 24 MR. BAHNER: Yes. 25 JUDGE EMERY: Okay. OPENING STATEMENTS - Bahner 10 1 MR. BAHNER: May it please the Court, I 2 am Max Bahner, with Hugh Moore and Aaron Love. We represent 3 Mr. Stephens and the Public Defenders office. I would like 4 to say, as a preliminary matter, that it is our view that 5 the Attorney General does not have standing to participate. 6 We acknowledge that this is something within the sound 7 discretion of the Court, but I would make just a couple of 8 points. 9 The burden of the motion to intervene is 10 based on the fiscal costs of the relief sought and in our 11 view does not address the Tennessee Supreme Court Rule 8 or 12 the Tennessee Supreme Court Rule 13, which we think govern 13 here. Just for the record, I wanted to make that very brief 14 statement of our position with regard to the Attorney 15 General. We also think that there is an inherent conflict 16 of interest between the Attorney General and the relief 17 being sought here. 18 I'd like to make a few comments 19 preliminarily, if I may. Today we want to address with you 20 an issue which I think is crucial to the justice system. We 21 know you're interested. You see the Knox County Public 22 Defenders all the time in your courts. Everyone, whether a 23 prosecutor or a defendant, whether they're practicing 24 primarily civil or criminal law, and every person who cares 25 about the American legal system has to be interested in the OPENING STATEMENTS - Bahner 11 1 issue of caseloads, workloads, and I'm not sure that 2 caseloads and workloads are synonymous, and we are going to 3 address that later during the proof. 4 We're keenly aware of the issues facing 5 our great state. We are Tennesseans, just as you are, and 6 we are quite aware of that, but the issues we are concerned 7 with here today are issues clearly within the jurisdiction 8 of the Tennessee Supreme Court, and those are the ethical 9 issues which govern the work of every lawyer who appears in 10 our courts and every lawyer who practices law, and the 11 constitutional issues which are important for the persons 12 accused of crime will appear before you. 13 The Preamble to the Tennessee Rules of 14 Professional Conduct, Rule 8, notes that in all professional 15 functions a lawyer should be competent, prompt and diligent. 16 A lawyer should maintain communication with a client 17 concerning the representation. As lawyers we should 18 demonstrate respect to the legal system and for those who 19 serve it, including judges, other lawyers, and public 20 officials. While it's a lawyer's duty, when necessary, to 21 challenge official action, it's also a lawyer's duty to 22 uphold the legal process. And that's what we are concerned 23 with and what I know you are concerned with in this hearing 24 today. 25 The ninth paragraph of the Preamble notes OPENING STATEMENTS - Bahner 12 1 that the nature of law practice, conflicting 2 responsibilities are encountered. Virtually all--and I'm 3 quoting: Virtually all difficult ethical problems arise 4 from conflict within a lawyer's responsibilities to clients, 5 to the legal system, and to the lawyer's own interest in 6 remaining an upright person while earning a satisfactory 7 living. 8 We all know that the first ethical rule, 9 Rule 1.1, is that a lawyer shall provide competent 10 representation, competent representation to a client, and 11 this requires legal knowledge and skill and thoroughness of 12 preparation reasonably necessary for the representation. 13 The third rule, Rule 1.3, is that a lawyer shall act with 14 reasonable diligence and promptness in representing a 15 client. 16 The requirement set out in Rule 1.4 is 17 that a lawyer shall keep a client reasonably informed about 18 the status of a matter and comply with reasonable requests 19 for information within a reasonable time. A lawyer shall 20 explain a matter to the extent necessary to permit the 21 client to make informed decisions regarding the 22 representation. 23 It's important, I think, to note that if 24 a lawyer's caseload/workload is too heavy, there's an 25 implicit conflict of interest, which is forbidden by Rule OPENING STATEMENTS - Bahner 13 1 1.7(b), which says, and I quote: A lawyer shall not 2 represent a client if the representation of that client may 3 be materially limited by the lawyer's responsibilities to 4 another client, unless the lawyer reasonably believes the 5 representation will not be adversely affected and the client 6 consents in writing after consultation. Rule 1.16 provides 7 direction to lawyers who are declining or terminating 8 representation when not to do so would result in violation 9 of the Rules of Professional Conduct. So that's the first 10 issue, the ethical rules of conduct which apply to every 11 lawyer, whether a public defender or a prosecutor or working 12 in any other sphere. 13 Against this background our Supreme Court 14 adopted Rule 13, which concerns the appointment of counsel 15 to represent indigents who are charged with a crime. This 16 rule springs out of the guarantees of the Federal 17 Constitution and our State Constitution. Both the Sixth 18 Amendment of the U.S. Constitution and Article I, Section 9 19 of the Tennessee Constitution guarantee a criminally accused 20 defendant the right to be represented by counsel. The 21 Tennessee legislature implemented this right, of course, by 22 the revisions in Section 40-14-103 of the Tennessee Code and 23 related statutes. The legislature authorized the Supreme 24 Court to adopt the rules to accomplish these purposes, and 25 that's when the Tennessee Supreme Court adopted Rule 13. OPENING STATEMENTS - Bahner 14 1 So in this hearing today we want to 2 explore with you how best to solve the problem that faces 3 the Public Defenders Office and as a result which affects 4 this Court. Counsel for the Public Defender are keenly 5 aware that the prayer for petition that you consider today 6 has a profound effect on the operation of this Court. 7 This Court has an overwhelming caseload. 8 I, frankly, have trouble understanding how a caseload this 9 massive is handled. And I do no criminal work, really. I 10 do civil. The Public Defenders Office also has an 11 overwhelming caseload, and I don't understand how they do 12 that. It could not occur in our firm or in any other civil 13 practice which I am aware. And so together, with the bench 14 and the lawyers and the Public Defenders office, we face 15 issues of significant ethical and constitutional borders. 16 From start to finish, this case involves 17 lives. It involves the lives of the members of this Court. 18 It involves the lives of the lawyers who appear before this 19 Court from the Public Defenders Office, and it involves 20 perhaps most importantly the lives of the persons accused 21 of crimes who cannot afford counsel, and it has a profound 22 effect on their impression of the judicial system and the 23 fairness of the judicial system and its ability to treat 24 them as individual persons, and so today we want to explore 25 this. STEPHENS - Bahner 15 1 We are not going to call all the 2 witnesses we could. We are going to tailor our proof as 3 best we can to move through this swiftly. And as I 4 understand, Your Honors have agreed to just work straight 5 through, and that is satisfactory with us. 6 JUDGE EMERY: Thank you. 7 MR. BAHNER: We'd like to call our first 8 witness, and that's Mr. Stephens. 9 EXAMINATION 10 BY MR. BAHNER: 11 Q Mr. Stephens, for the record, would you 12 please state your name. 13 A I'm Mark Stephens. 14 Q Are you the Public Defender of Knox 15 County? 16 A I am the elected Public Defender for the 17 6th Judicial District. 18 Q How many lawyers do you have on your 19 staff? 20 A Currently, I have 20 lawyers on the 21 staff. 22 Q Are there vacancies on your staff? 23 A There are. There are two vacancies, and 24 there is a young man who is in the process of taking the bar 25 exam. STEPHENS - Bahner 16 1 Q How many investigators do you have? 2 A I have four investigators. 3 Q How many clerks do you have? 4 A Currently, during the summer months, we 5 have three clerks. When school starts, that will go down to 6 two, and we'll carry two clerks for the fall and two for the 7 spring. 8 Q And for the purposes of the Court and 9 those who are listening to this proof, what are the 10 responsibilities of the clerks? 11 A The summer clerkships are predominantly 12 research clerkships. They don't have much involvement in 13 the court process. They have some specific case-related 14 duties, but not much. Mainly what they are performing are 15 research tasks and (inaudible). 16 Q How many of the lawyers, the 20 lawyers 17 on your staff, have five years or less of practice as a 18 lawyer? 19 A I currently believe that we have four 20 lawyers or five lawyers with five years experience or less. 21 We recently lost a lawyer who had less than five, and I'm 22 not sure of the totals right now, but I think we have about 23 five lawyers with five years or less. 24 Q How many lawyers do you have assigned to 25 each of the courts of Knox County-- STEPHENS - Bahner 17 1 A There are-- 2 Q And we have an exhibit here, which I 3 think may be helpful just because it will put it in 4 everybody's mind. (Indicates.) 5 A The Public Defenders Office covers seven 6 courts. We cover all three divisions of Criminal Court. In 7 Knox County Criminal Court Division I, we have two lawyers 8 assigned to that division, both who have extensive 9 experience. 10 In Criminal Court Division II, we have three 11 lawyers assigned to that division. One is a very young 12 lawyer; a second lawyer who has, I think, three or four 13 years experience; and then a third lawyer who has, I think, 14 more than eight years experience. And then--and they are 15 here. If I am misstating their level of experience they can 16 correct me. And then in Knox County Criminal Court Division 17 II, we have--Division III, we have two lawyers assigned to 18 that division. 19 In Misdemeanor Court we currently have 20 four lawyers. We recently lost one. And we have an offer 21 outstanding to a lawyer who will be moving into that 22 division if and when he accepts the offer. And so we have 23 currently four lawyers working in two-person teams in 24 Misdemeanor Court. 25 We have two lawyers assigned to DUI STEPHENS - Bahner 18 1 Division. We have five lawyers assigned to Felony Division. 2 They work in two teams, a team of three lawyers and a team 3 of two lawyers. And then we have two lawyers assigned to 4 Juvenile Court. 5 Q Does this chart, which is on the board, 6 accurately reflect the assignments of lawyers from your 7 office? 8 A Yes, sir, it does. 9 Q Have you had some difficulty in keeping 10 lawyers on your staff? 11 A Yes, sir. 12 Q Why is that? 13 A Well, initially, what everyone told me 14 would happen as I first became Public Defender is that I 15 would hire a lawyer, I would train them, and within a couple 16 of years they would move into private practice where they 17 could enjoy the practice of law better than the environment 18 of the Public Defender Office, but in fact that did not 19 happen. We went about 11 or 12 years with very little 20 turnover. 21 Recently, however, since 2004, I think we've lost 22 either 21 or 22 personnel. Fourteen of those have been 23 lawyers. And while they don't come to me and say, I'm 24 leaving because of caseloads, they do come to me and say 25 that they are leaving because they want to practice law the STEPHENS - Bahner 19 1 right way, or they'll tell me that the pace of the Public 2 Defenders Office is not a pace that they are willing to 3 maintain over a prolonged period of time. 4 Q What do you-- 5 A --part of that is that of the 14 lawyers 6 who have left most of them were experienced lawyers, and so 7 what happened necessarily then is I lost an experienced 8 lawyer and replaced them with a new lawyer, a young lawyer 9 that requires training and supervision. As lawyers, as we 10 all know, there is just a learning curve. 11 Q What do you understand it to mean when 12 they say they want to practice law the right way? 13 A They want to meet their professional 14 obligations as it relates to their client. They want to 15 handle the case the right way. They'd like to meet their 16 client. They'd like to talk to them. They'd like to 17 investigate the case. They'd like to talk to the family 18 member. That's not to say that it doesn't happen in our 19 office, but it happens so infrequently, or there are 20 stressors associated with the lawyer trying to perform those 21 functions, and compromises are being made, but the stress 22 and strain of the day-to-day rhythm of the Public Defender 23 Office makes the lawyers feel as though they're processing 24 cases, they're not being the full lawyer that they can be. 25 Q Generally, what is the average ongoing STEPHENS - Bahner 20 1 caseload of the lawyers in your office? 2 A Well, I wish I could provide the Court 3 with an absolute answer to that question. A lot of it 4 depends on where the lawyer is situated. If the lawyer is 5 in Criminal Court, for instance, they're going to have an 6 active, open caseload of somewhere between about 70 cases to 7 as high as maybe 120 cases. I think I have one lawyer 8 currently in Criminal Court with 120 cases. Most of those 9 cases or a high percentage of those cases are cases that are 10 set for trial, and most of those trial settings are within 11 90 days to 120 days. 12 When it gets to Juvenile Court, it's a little 13 easier to--well, what I can give you for Juvenile Court are 14 annual numbers. We run about, roughly, 15 hundred cases, 13 15 to 15 hundred cases a year in Juvenile Court, and we have 16 two lawyers that handle that. So somewhere between six to 17 seven hundred and fifty cases. They turn those cases over a 18 couple of three times a year. And so a lawyer in Juvenile 19 Court is going to have an active, open caseload of around 20 200 cases at any given time. 21 As you move into the specific divisions of Sessions 22 Court, that also varies. The numbers in DUI Court are very 23 similar to Juvenile Court; whereas, the two lawyers assigned 24 to that court are going to handle about 15 to 17 hundred 25 cases a year. That's about 850 cases apiece. And they turn STEPHENS - Bahner 21 1 those over three, four times a year, and so at any given 2 time the lawyer is going to have connected to him or her 3 200, 250 cases at a time. When we move into Felony Court, 4 we'll see lawyers responsible or at least attached to 150 to 5 200 cases at any given time. 6 Q Is there a difference between filings and 7 cases? 8 A Yes, sir. 9 Q Please explain that briefly. 10 JUDGE MCGEE: Excuse me a moment. I want 11 to go back. I got that in Felony you're going to have 150, 12 200 cases, current caseload. What was the court you 13 described before that; DUI or-- 14 MR. STEPHENS: DUI. 15 JUDGE MCGEE: And it was what? 16 MR. STEPHENS: I think there's a couple 17 of hundred, maybe 200 to 250 open, active cases that are 18 assigned or attached to a specific lawyer. 19 BY MR. BAHNER: 20 Q At any given time? 21 A At any given time. 22 The numbers in Misdemeanor Court are a little 23 higher than that. There are around 35 hundred. I think 24 right now we're doing about 35 hundred cases annually in 25 Misdemeanor Court. We have four lawyers in that court. So STEPHENS - Bahner 22 1 it's not quite a thousand cases per lawyer annually. And 2 then when you ask how often they turn them over, likewise 3 they turn them over - and what I mean by "turn them over" is 4 they get assigned to the case and some disposition occurs to 5 where it no longer is assigned to them - somewhere in the 6 90- to 120-day range. And so I guess they turn them over 7 about three or four times a year. 8 BY MR. BAHNER: 9 Q Mr. Stephens, is there a difference 10 between caseload and workload? 11 A Well, there is. And if I could, let me 12 answer your question about filings versus cases. Our case 13 management--well, when Joe Client is arrested and charged 14 with seven warrants, each of those seven warrants are 15 entered into our case management system, and that's what we 16 call a filing. And, I'm sorry, sometimes we call it a 17 charge. We use different terms for the same thing. So 18 you'll often hear us talk about charges or filings, and 19 basically what that is, is that's a warrant. 20 However, there is a state statute that defines a 21 case, and it requires in instances for us to group filings 22 by--this is just a rough explantation of the statute. But 23 what the statute basically says is a single defendant, a 24 single course of conduct occurring over a 24-hour period of 25 time, and so I think I'm correct in this. If Joe Client STEPHENS - Bahner 23 1 goes into in a parking lot and burglarizes seven cars, there 2 will be seven warrants issued against that individual. 3 There will be seven filings. There will be seven charges. 4 But there's one case. It's a single course of conduct 5 occurring by one individual over a 24-hour period of time. 6 And so for case counting purposes, that's one offense. 7 For filing purposes or for the institutional strain 8 on the Public Defender Office, that's seven filings, which 9 means a secretary has to enter seven cases into the system. 10 Conflict checks have to be done on seven individuals. All 11 seven of those warrants have different victims, and so 12 interviews have to take place with seven different 13 individuals. 14 And so, I don't care how we characterize them. If 15 we want to call that as one case, that is a caseload unit, 16 but a workload unit is the work that has to be done in 17 relation to the number of warrants or filings, and certainly 18 the one case that I've described has a workload equivalent 19 that's significantly greater than if Jane Client 20 burglarizes one car, that workload is not the same as Joe 21 Client who may be charged with burglarizing seven cars. 22 They count the same for purposes of caseloads. Both of 23 those cases would be identical in terms of the unit or the 24 measure for caseload, but it's very different in terms of 25 work. STEPHENS - Bahner 24 1 Q And how does this workload impact the 2 work of the lawyers in your office? 3 A Well, the lawyer has an obligation to do 4 certain things as it relates to each warrant. The fact that 5 the AOC or the courts or the legislature wants to call it a 6 single case, there are still obligations and duties the 7 lawyer has as to each filing. The lawyer has a duty to 8 contact each of those clients and attempt to interview them 9 when they're available. They have a duty to interview the 10 police officers and the court filings...more work. 11 Q Let's talk for a minute about the ethical 12 obligations on a public defender lawyer in defending a 13 person charged with a crime. What are the ethical duties-- 14 A Well, our-- 15 Q --professional responsibility. Excuse 16 me. 17 A Our Tennessee Supreme Court has told us 18 that while they are not going to develop a specific litmus 19 test of the duties and responsibilities that each lawyer 20 has, they tell us to look to the ABA standards for criminal 21 justice, the defense function, and if you look to the ABA 22 standards the ABA standards dictate pretty clearly what 23 responsibilities lawyers have with regard to their 24 representation of the client, and those duties include the 25 lawyer has an obligation to establish a relationship of STEPHENS - Bahner 25 1 trust and confidence with the accused. 2 They have to communicate with the client, 3 discussing, among other things, the objectives of the 4 representation. They have to ensure privacy essential for 5 confidence and communication between defense counsel and the 6 client. They have to determine all relevant facts known to 7 the accused as soon as practical. They are required to 8 inform the accused of all of his or her rights at the 9 earliest possible opportunity and take all the necessary 10 action to vindicate such rights. 11 They must consider all procedural steps which may 12 be taken on behalf of the client. Those include--some of 13 those include seeking a pretrial release work program, 14 obtaining psychiatric examinations when needed, moving for a 15 change of venue or moving for a continuance, moving to 16 suppress illegally obtained evidence, moving to sever 17 jointly charged defendants. They have an obligation to 18 conduct a prompt investigation of the circumstances of the 19 case, exploring all avenues leading to facts relevant to the 20 merits of the case in defending them without a conviction. 21 They have to avoid interviewing a prospective witness except 22 in the presence of a third person, which means the lawyer 23 can't necessarily fill that obligation if there's no 24 investigator available to him or her to go out and accompany 25 them on those interviews. STEPHENS - Bahner 26 1 After being fully informed of the facts and the 2 law, defense counsel should advise the accused with complete 3 candor concerning all aspects of the case, including a 4 candid estimate of the probable outcomes. Defense counsel 5 should explore the possibility of an early diversion in the 6 case with a criminal process through the use of other 7 community agencies. A-- 8 Q Without going through the rest of the-- 9 A Yes, sir. 10 Q --litany of those, which are in the 11 petition, would the workloads carried by the Public 12 Defenders in your office--can they do these tasks today? 13 A No, sir. 14 Q Why can they not? 15 A The men and women in my office, the 16 lawyers are dedicated lawyers, but the caseloads are such 17 that there is no possible way that they can perform all of 18 these tasks that they are ethically required to fulfill in 19 all of the cases that we give them to do. There's no 20 possible way. 21 Q What is the impact of the workload on the 22 requirements of guaranteeing the constitutional rights of 23 the accused? 24 A In my opinion, having been there for 18 25 years, the rights of the accused are adversely affected by STEPHENS - Bahner 27 1 the caseloads that are put upon these lawyers and the 2 ethical obligations that they are attempting to fulfill. 3 Q How has your office operated during these 4 years, with the caseload and workload levels that you 5 carry? 6 A This is a--it's a shameful answer for me 7 to make, but there is a rhythm that develops in Sessions 8 Court, and it is easy, albeit shameful...it is easy for me 9 to fall into the rhythm and to cut corners so as to be able 10 to maintain and otherwise--well, what I like to say is to be 11 able to manage an unmanageable docket. 12 The docket is unmanageable. The docket that these 13 lawyers are given, the caseloads these lawyers are given are 14 unmanageable, and the only way you can get from Point A to 15 Point Z is to compromise and to cut corners. 16 Q Can you give us some illustrations of the 17 kinds of corners which are commonly cut? 18 A My lawyers, particularly my lawyers in 19 Sessions Court, are on a two-week rotation. They are 20 preparing one week, and they are in court the second week. 21 The week that they are preparing they are regularly 22 preparing more cases than there are time slots to even 23 interview the clients. And so when I go through-- 24 Q How long are those time slots? 25 A We block off 30 minutes for an interview STEPHENS - Bahner 28 1 with the client, which is not sufficient. But if you look 2 at a lawyer who has maybe a hundred cases set next week, if 3 you take a 40-hour work week, take a 50-hour work week, take 4 an 80-hour work week, whatever you want to take, there are 5 more clients than can possibly be interviewed in the course 6 of a prep week and do anything else. But these lawyers, the 7 other obligations that they have, go far beyond just an 8 initial interview with the client. And so what's happening 9 is they're lucky if they can interview every single client 10 before they get to court. 11 And, Mr. Bahner, I'd like to tell you, one of the 12 most disgraceful things that has happened in our office 13 (indicates)...there have been instances where clients have 14 called for appointments...and we have told them that they 15 couldn't have one. 16 Q Does this 30 minutes allow for interviews 17 with witnesses or potential witnesses? 18 A No, sir. The 30-minute slots that we're 19 talking about is if you just simply take a number of the 20 cases of clients that a lawyer would typically handle in one 21 week of court. If you take a 30-minute slot those clients, 22 those initial client interviews will take up their entire 23 week, and so there's nothing left to do any on-scene 24 investigations. There's nothing left to do any contacting 25 of officers we talked about. There's no witness--there's no STEPHENS - Bahner 29 1 time to interview any witnesses. You just go into court and 2 you fly by the seat of your pants to see what you can 3 accomplish. And I don't mean to be disrespectful to my 4 lawyers, but in large measure that's what's happened. 5 Q In your experience, do you think that as 6 a result of the caseloads and workloads and the limits on 7 time that persons who were innocent have been convicted or 8 have pled? 9 A I can't answer that question. And the 10 dilemma that we're faced with today is, as we typically talk 11 about effective representation of counsel it's a 12 retrospective discussion; in other words, you look at how 13 the lawyer performed and you look at the outcome, you look 14 at what the lawyer failed to do when you make a decision 15 about whether or not that failure affected the outcome of 16 the case. 17 In this situation, you don't have enough 18 information to determine whether or not innocent parties 19 have pled guilty or not. I suspect they have. I couldn't 20 point you to a specific incidence. 21 Have I been ineffective in my representation over 22 the last couple of years? I suspect that I have. I don't 23 know that I could point you to a specific case and a 24 specific deficiency that resulted in prejudice to a client 25 of mine, but that's not to say that it didn't happen. And STEPHENS - Bahner 30 1 with the volume that these lawyers are handling and with the 2 number of cases that are pleading, it seems to me that over 3 the course of the year there ought to be four or five--out 4 of four or five thousand cases in a specific division, you 5 would think that at the end of a hearing somebody's going to 6 be declared innocent at some point, and I'm not sure I could 7 tell you that that's ever happened, as well. 8 Q In addition to your managerial duties as 9 Public Defender, do you handle a caseload? 10 A I do. 11 Q What sort of caseload do you have 12 currently? 13 A Currently, I think I have 12 cases that 14 are active. Most of my cases are first degree murder cases. 15 I think I may have an attempted first degree, or I have 16 basically violent crime in the first degree murder category 17 or Class A category. 18 Q As the elected Public Defender and 19 responsible for the operation of your office, do you have an 20 opinion as to whether, in the courts in which your office 21 provides representation to indigents charged with a crime, 22 there is any crisis? 23 A There is a crisis in my office. 24 Q Why do you say that? 25 A The caseloads that currently exist in my STEPHENS - Bahner 31 1 office, in my view, prohibit my lawyers from fulfilling 2 their ethical obligations and duties that they owe to the 3 client. They cannot do that. And, consequently, the 4 constitutional right of the accused to have a lawyer who is 5 meeting his or her ethical responsibility to that client is 6 not being fulfilled, and it's because of caseload, it's not 7 as a result of the commitment or effort on the part of the 8 lawyers. 9 Q How do lawyers in your office have to 10 practice? 11 A My lawyers--I get to work most 12 mornings--not all mornings, but I get to work most mornings 13 at 6:00. I am not the first person in my office. And what 14 I see progress over the course of time is that lawyers, the 15 first thing they usually do is give up their holidays. They 16 realize that a holiday could be very valuable. There's no 17 calls coming in and there's no court that you have to go to, 18 and so you can get a lot done on a holiday. 19 And then the second step is you find out, Well, you 20 know, Saturday, there's no court on Saturdays either, and so 21 almost--not all of my lawyers but most of my lawyers work on 22 the weekend. Most of my lawyers don't take their annual 23 leave allotment, because they can't afford to do that 24 because the workload piles up. It's almost to the point 25 where if you miss a day you almost regret not being there, STEPHENS - Bahner 32 1 because there's no additional time in the future to make up 2 for what you're missing today. All you're doing is cramming 3 more into a day that you already don't have enough time to 4 fulfill your obligations. 5 As Scott Carpenter says, beautifully I think, he's 6 always working behind himself. He's always doing today what 7 needed to be done two or three weeks ago or two or three 8 months ago. I feel like I've never had a day where there 9 wasn't something I had to do that if I didn't get it done 10 that day the sky was going to fall. I never have felt like 11 I've had a day in my office where I can work under normal 12 circumstances. 13 Q As a result of what you have experienced 14 in your office and your observations, did you write a letter 15 to the members of this Court in June of last year, June 15? 16 A Yes, sir. 17 Q And in that letter did you suggest that 18 you felt like you needed to stop taking appointments? 19 A Yes, sir. 20 Q Did you stop taking appointments? 21 A No, sir. 22 Q Why did you not? 23 A I think, Mr. Bahner, you made reference, 24 you had a phrasing in opening statement something about the 25 fair administration of justice or something along those STEPHENS - Bahner 33 1 lines. I felt when I wrote the letter in June, naively, I 2 guess--now looking back on it a year later, naively, 3 certainly. I felt like this was something that we would 4 resolve in the next couple of months, and the disruption to 5 the Court and the fair administration of justice, the damage 6 to the clients to summarily stop taking appointments was 7 such that if we could survive another couple of months we 8 could get relief and manage these caseloads. And then two 9 months turned into three months, and I believed in September 10 we'd be filing a petition. And then the more I worked the 11 more I realized there was more work to be done. And I was 12 always under the assumption that, Well, next week we'll get 13 the petition filed and we'll get a hearing within a month. 14 I certainly thought we'd have a hearing before the end of 15 last year. And so I bought into that rhythm of the Court. 16 I bought into, you know, it's Sessions Court, it's been done 17 this way for 20 twenty years, so just do it. And 18 embarrassingly and in hindsight - and I shouldn't have - I 19 continued to allow us to accept cases while the situation 20 was beyond critical. 21 Q Did you ask us to represent you in 22 preparing and filing a petition? 23 A Yes, sir. 24 Q And in connection with that, did we ask 25 you for a lot of information which you did not then have? STEPHENS - Bahner 34 1 A Yes, sir. I have a case management 2 system which was created in 1994 for a civil firm. Isaac 3 Merkle has done voluminous work in converting that to a case 4 management system that works for our office. But it is 5 extremely difficult for me to produce accurate caseload 6 data, and so literally for seven or eight months Mr. Merkle 7 engaged in a process, from last June until about January or 8 February of this year, to work through this antiquated case 9 management system so that we could produce for the Court the 10 most accurate, current data that we could possibly produce, 11 and that process was much more difficult than I expected and 12 delayed the relief that I really naively believed I would 13 have within about 30 days of writing the Court the letter. 14 Q You suggested in the sworn petition which 15 you filed that you would like the Court to suspend 16 appointments of your office to represent individuals charged 17 with crimes in the Misdemeanor Division. Why did you make 18 this suggestion? 19 A Well, I have four reasons for that. The 20 solution to my problem is lawyers. That's what I need. I 21 need lawyers. And this Court can't find me lawyers. This 22 Court can't create lawyer positions and fund lawyer 23 positions for me. And so part of what I'm trying to do is 24 to accomplish both. This Court can give me caseload relief, 25 and so I'm hoping that this Court would consider doing that. STEPHENS - Bahner 35 1 But I've also created a way, I think, of finding 2 lawyers, and that would be to stop taking cases in the 3 Sessions Court Misdemeanor Court, which would allow me then 4 to take, currently, the four lawyers who are assigned in 5 that court and reassign them to other divisions of the 6 court, to where I wouldn't necessarily have to go to those 7 courts and ask for caseload relief. 8 The reason I chose Misdemeanor, as set out in the 9 petition, there's four reasons. One is the potential loss 10 of liberty in Misdemeanor Division of Sessions Court is less 11 than it is in other divisions of court, for the most part. 12 And so, with ultimate concern for the client and the 13 client's potential loss of liberty, the damage to the client 14 would be less if we're not handling cases in Misdemeanor 15 Court than in any other division. 16 Secondly, the nature of the offenses that are in 17 that court typically involve injury of third-party victims 18 less than they do in other courts, and so out of respect to 19 third-party victims the nature of the offenses in 20 Misdemeanor Court tend to be more driver's license offenses, 21 misdemeanor theft, possession of drug paraphernalia, types 22 of offenses that don't necessarily involve victims of third 23 parties. So we were trying to consider that as well. 24 Of course there's a significant financial stress on 25 the State if we pull out of Misdemeanor Court, but the STEPHENS - Bahner 36 1 financial strain to the State is the least, we think, in 2 Misdemeanor Court than it is in any other court. The AOC 3 would pay local lawyers--I think they would pay local 4 lawyers to handle these cases if they were appointed and a 5 public defender isn't, and the average fee claim in 6 Misdemeanor Court is less than the average fee claim in 7 Felony Court. I don't know what the average fee claim in 8 DUI Court is, but I believe--but I only have two lawyers in 9 that court, so if I chose to seek the remedy in DUI Court 10 I'd only be gaining two lawyers on that, and it wouldn't 11 solve the problem I have in the other courts. 12 Also, fewer cases seem to be bound over out of 13 Misdemeanor Court than in other courts, and so the gap in 14 representation from private counsel to then public defender 15 in Criminal Court would be smaller if it's only in 16 Misdemeanor Court that this relief is granted. And so, to 17 me, it took into consideration the court, it took into 18 consideration the financial concerns of the State to try and 19 minimize those as much as possible. It took into 20 consideration victims and their right to have their case 21 heard as expeditiously as possible, but ultimately it took-- 22 they're my clients, and the clients' potential loss of 23 liberty is the least, I believe, in Misdemeanor Court than 24 in Felony or any more serious courts. 25 Q For purposes of comparison, Mr. Stephens, STEPHENS - Bahner 37 1 just roughly how much would it cost the State to provide an 2 additional four public defenders compared with the alleged 3 costs of providing private counsel to represent these 4 people? 5 A Public Defender starts--his starting 6 salary is around $42,000. I'm told you have to add about 25 7 percent to that figure to carry benefit costs, and so you 8 get a starting level salary somewhere in the 55 range. So 9 let's say I need 10 lawyers, and I do. Five hundred and 10 fifty thousand dollars, roughly, gives me 10 starting 11 positions. 12 Now, if I got 10 lawyers of course I'd have to have 13 some secretaries and I'd have to have some investigators, 14 but certainly my problem--there's no doubt that the average 15 costs of a case for a public defender runs around $200 a 16 case. Appointed lawyers run significantly higher than that. 17 And so, from a cost efficiency standpoint--and this is not 18 to disrespect my brothers of the bar, the private lawyers 19 who I wish there were more of. Public defenders seem to 20 be--and, in fact, it may even be an insult to us. But 21 public defenders seem to be able to do the work cheaper than 22 private lawyers. I would suggest to you that's because 23 we're not doing the same level of work that the private 24 lawyers might be doing, and so that might be why we're 25 cheaper. But there are economies of scale. And so for STEPHENS - Bahner 38 1 roughly $750,000 to about $900,000 you could solve the 2 problem in the Public Defenders Office. The Public Defender 3 would likely be able to represent a larger percentage of its 4 own caseload in Knox County, which is a far cry from the 2.7 5 million dollars or 2.4 million dollars that the relief I'm 6 requesting might cause the State if private lawyers were 7 asked to handle all these cases. So, certainly, the 8 financial remedy is cheaper for the legislature to 9 adequately fund the Public Defender Office, but the State is 10 in crisis, I guess. 11 Q Mr. Stephens, we are looking for 12 solutions here. Have you thought about other solutions 13 which might work, or have you considered other solutions-- 14 A Yes, sir. 15 Q --and if so, please tell the Court what 16 you considered and why you rejected those. 17 A I think that if the relief that we're 18 requesting here is not granted, and certainly I don't mean 19 to be disrespectful to the Court - this isn't a threat - but 20 what we'd be forced to do or required to do at that point 21 would be to go into each individual court and have a hearing 22 in each individual court and stop appointments there for a 23 period of time, in order to allow us to get the caseloads 24 down to where we need to be. And so what we're doing here 25 affects one court and one group of clients. If we're not STEPHENS - Bahner 39 1 successful in this effort, then what we'll do is we'll have 2 to affect seven courts and an array of clients, clients who 3 are charged with serious felonies, clients who are charged 4 with misdemeanor offenses, and clients who are charged with 5 everything in between. 6 Q Is the situation with the workloads 7 provided by your office pervasive in all of the courts in 8 which you practice? 9 A It is now. It was not when I wrote the 10 letter back in June. I thought, back when I wrote the 11 letter in June, Criminal Division III was doing all right. 12 Criminal Court Division III has seen an increase in Class A 13 felonies, and I've got some lawyers who are struggling 14 maintaining their current load with the influx of Class A 15 felonies. I think Mr. Carpenter advised me he picked up 16 some six, eight felonies in the last 30 days. So he's in 17 trouble. 18 Q What other solutions have you thought 19 about, other than having to go to each court every time? 20 A Quitting is not an option, so somehow we 21 have to work through this. We need the relief that we've 22 requested in Misdemeanor Court or we're going to be forced 23 to go to each individual court and stop the--we have to stop 24 an influx of cases. There's only two solutions: Stop the 25 influx of cases or give me adequate resources. That's the STEPHENS - Bahner 40 1 only two choices. 2 Q What are the standards, Mr. Stephens, by 3 which the objectiveness of the Public Defenders Office are 4 judged, and specifically, the legal staff? I direct your 5 attention to the Strickland case, Strickland against 6 Washington. 7 A Well, I think when you talk about 8 effective assistance of counsel - and as I've said earlier, 9 it's almost always a retrospective analysis - where a lawyer 10 has to perform at a level--at the lowest level of other 11 legal providers within his or her community, and even if the 12 lawyer fails to maintain that legal threshold, if the client 13 hasn't incurred prejudice as a result of the deficient 14 service provided by the lawyer, then technically the court 15 won't find ineffective assistance of counsel. So you have 16 to have a deficient performance and you have to have 17 prejudice. 18 Rule 13 doesn't contemplate a retrospective 19 analysis of determining effective assistance of counsel. 20 What it tells me I have to do is look prospectively and 21 determine whether or not my lawyers are going to be 22 affected, and so really the prejudice component, I don't 23 know any way to implement a forward, prospective looking 24 analysis of prejudice. All I can say is if this is what a 25 lawyer has to do, if this is what our Supreme Court has told STEPHENS - Bahner 41 1 us are the duties that a lawyer who is engaged in the 2 representation of a citizen accused must perform and I know 3 now they can't perform with their current caseload, then I 4 certainly know they can't perform those duties if you add 5 one more case to it. 6 Q Are you familiar with the caseloads 7 recommended by the National Advisory Commission on Criminal 8 Justice Standards? 9 A Yes, sir, I am. 10 Q We'll have Ms. Williams put up this board 11 which has those workload standards on it. 12 MS. WILLIAMS: (Complies.) 13 BY MR. BAHNER: 14 Q For the record, would you please just go 15 down that list and read it into the record. 16 A NAC standards were created, I believe, in 17 1978, and those standards established--I think it's 1978. 18 Those standards established that no lawyer should handle 19 more than 150 felonies per attorney per year, or 400 20 misdemeanors, excluding traffic, per attorney per year, or 21 200 Juvenile Court cases per attorney per year, or 200 22 Mental Health Act cases per attorney per year, or 25 appeals 23 per attorney per year. 24 What the NAC standards say is when a lawyer handles 25 a mixed bag, then there will be some number in between the STEPHENS - Bahner 42 1 150 and the 400, and so it's up to a lawyer to determine if 2 he has one of each of those types of cases, and it would be 3 up to a lawyer to determine-- 4 (Interruption of the proceedings.) 5 A --a caseload that doesn't exceed the 6 400--excuse me, doesn't exceed the 400. 7 MR. BAHNER: May it please the Court, I 8 would like to introduce this copy as an exhibit, if I may. 9 (Off the record discussion.) 10 MR. BAHNER: Yes, I would like to mark 11 that as Exhibit 1 and this as Exhibit 2. 12 (Whereupon, the Knox County P.D. Office Assignment 13 of Lawyers was introduced as Exhibit No. 1, and the NAC 14 Standard 13.12 was introduced as Exhibit No. 2.) 15 MR. BAHNER: We are going to substitute 16 that piece of paper for the board. 17 BY MR. BAHNER: 18 Q Do you understand, Mr. Stephens, that 19 these numbers are the maximum numbers of cases that a lawyer 20 can handle during the course of a year? 21 A I do. 22 And also, Mr. Bahner, if I might comment. When I 23 first was elected Public Defender in 1990 and learned of the 24 NAC Standards, my initial reaction was that they are low, 25 that there were institutional capacities and strengths that STEPHENS - Bahner 43 1 allowed me to handle more cases than certainly those numbers 2 would suggest. Eighteen years later I can tell you that I 3 have seen the wisdom of those numbers. 4 When you look at a calendar year, there's 356 days 5 in a calendar year and there's 52 weekends, and you back out 6 104 days on those weekends and that leaves you with - do the 7 math - somewhere around 250 days. If I'm going to handle 8 150 felony cases in the course of a year, that means I don't 9 have two days a year to handle a felony. And the truth is 10 some felonies I can handle in 16 hours or 21 hours of work, 11 but the fact is there are lots of felonies out there that 12 you can't even get around (phonetic) in 15 to 20 hours. And 13 we all know there are felonies that require hundreds of 14 hours. So when I look at the NAC Standards now, 18 years of 15 more experience than I had when I came in, in 1990, those 16 numbers are maximum numbers, and those numbers may be high. 17 18 Q How are the salaries of public defenders 19 calculated, on how many hours a year? 20 A The State requires them to work 37.5. I 21 think a work week is 37.5 hours. 22 Q And so, during the course of a year, how 23 many hours a week is that, roughly? 24 A I think the Attorney General has 25 calculated that--I'm sorry, not the Attorney General. I STEPHENS - Bahner 44 1 think the District Attorney, in their caseload study, 2 calculated 1,750 hours. You take 50 times 37.5, eighteen 3 hundred. Somewhere around 1,750 or 1,800 hours, something 4 like that. 5 Q Have any of your Public Defenders worked 6 just 1,750 or 1,800 hours in the course of a year? 7 A No, sir. Nobody in my office works just 8 1,750 hours a year; secretaries, investigators, nobody. 9 Q Do you have any idea how many hours a 10 year that you work? 11 A Well, of course, it differs. But like I 12 said, I come to work about 6:00 in the morning and I'm not 13 the first person there. Marie Steinbrenner beats me to the 14 office just about every single day, and I get there around 15 six. I've driven by the office at 11:30 at night and Marie 16 Steinbrenner's car has been in the parking lot, she's still 17 at work in that office. 18 Pat Leonard and I arrive at the office just about 19 the same time every single day. And that's not to single 20 out anyone, but there are lawyers--there's never been a 21 Saturday that I haven't come into the office that Scott 22 Carpenter is not there. There's never been a Sunday night, 23 I don't think, or not many, that Bob Edwards--the lawyers 24 are working far beyond 40-hour weeks. How much beyond? It 25 depends on the week and it depends on the individual. It STEPHENS - Bahner 45 1 depends on the particular stresses that they are under at 2 the moment. 3 Q In your view, as the elected Public 4 Defender, when a person is assigned to your office to be 5 represented, what do you think is the minimum that the 6 lawyer has to do in order to adequately represent that 7 person? 8 A Let's just take the Sessions Court 9 representation. I think a lawyer who is appointed to 10 represent an individual should meet immediately with the 11 client. If the client is in custody, that meeting should 12 take place quickly. Almost simultaneously the lawyer should 13 be collecting the relevant documents, and that is the arrest 14 report, the police report, the 911 report, any news accounts 15 of that particular case if there are any. The lawyer should 16 immediately identify who the witnesses are, and the lawyers 17 should make efforts--well, after the initial interview takes 18 place with the client, the lawyer should sit back and assess 19 and develop a strategy for how to adequately prepare the 20 investigation of this case. The investigation will include 21 attempting to contact the police officer and any witnesses 22 that are listed in that case. 23 And almost as important as talking to the 24 client there should be an interview with the family. 25 Oftentimes our clients are not the best historians in terms STEPHENS - Bahner 46 1 of their ability to give an accurate account of what 2 happened that led to the charge. But more importantly, 3 historically there's oftentimes been events and 4 circumstances in their life that leads them to not be 5 capable or not willing to provide the kinds of information 6 that a lawyer needs. 7 I would like to say, with all due 8 respect, there is a sense, having represented people within 9 the Public Defenders Office for 18, going on 19 years, there 10 is a sense of "this doesn't make sense" between the client 11 and the lawyer. When I interview a client, my client is, at 12 least initially, almost always distrustful. And if you look 13 at it, it makes sense that they would be distrustful. The 14 State is paying a prosecutor to put them in jail. The State 15 is paying a police officer in many instances to prosecute 16 them, and the State is paying a lawyer to defend them 17 against a prosecutor they're paying to prosecute them. Just 18 on a very superficial level it's difficult for clients to 19 understand. 20 The clients know what my caseload is, or at least 21 the rumor mill is out. They know what the caseloads are. 22 And they don't believe I'm a real lawyer, because if I was a 23 real lawyer I certainly wouldn't be staffed with the Public 24 Defenders Office, I'd be out in private practice making all 25 the money that private practitioners make, and I'd be able STEPHENS - Bahner 47 1 to manage my own caseload. So, at least initially, you're 2 almost always confronted with distrust, hesitancy, "Are you 3 the man, are you going to represent me, why would you want 4 to represent me, why would you care about me?" That's 5 what's gong on at that initial interview. 6 I never go see a client and ask him to tell me what 7 happened. Never. They're never at that point in the 8 relationship where they're willing to do that. I wouldn't 9 be willing to do it if I were the client. 10 Q Are your lawyers able to establish 11 relationships with the clients, as a common matter? 12 A Well, no. 13 Q Why? 14 A Well, the nature of Sessions Court makes 15 it a little difficult because they have strict time frames. 16 Sometimes they have to get that case presented within 10 17 days, so that presents additional challenges. I guess what 18 I could say is I think my lawyers are challenged almost 19 beyond the point of being able to accommodate one interview 20 before court. To suggest that there would ever be a 21 follow-up interview--and what the court I think might be 22 thinking is, Well, but you know, you could also pass that 23 case the first time. Well, all that does is just add to the 24 misery that already exists in terms of what your next week 25 has or holds for you in terms of the amount of interviews. STEPHENS - Bahner 48 1 If you pass it you're just trying to cram another interview 2 into a week that you don't have enough time to do interviews 3 to begin with. And so the lawyer-client relationship 4 doesn't form in a healthy way, and I don't see how it 5 possibly could form, because the lawyers don't have the time 6 to work through at least the initial apprehension and 7 suspicion and distrust most clients reasonably have when 8 they find out they're being represented by a public 9 defender. 10 Q Have you heard the terms "vertical 11 representation model" and "horizontal representation model"? 12 A Yes, sir. 13 Q What are those terms? 14 A Vertical representation is the preferred 15 model. It's the ABA recommended model where an individual, 16 a client, introduces himself or herself to the Public 17 Defenders Office, is assigned a lawyer who then works that 18 case to its ultimate resolution, whether it's in the 19 Tennessee Supreme Court or the United States Supreme Court, 20 but as long as that individual is a client in the Public 21 Defenders Office he or she has one lawyer, and the lawyer 22 works from beginning to end. 23 With our office and our caseloads being what they 24 are, we're not able to practice vertical representation, we 25 have to practice horizontal representation, which is a STEPHENS - Bahner 49 1 lawyer is assigned to a court and any case that comes 2 through that court they handle for as long as that case is 3 in the court. It is a terrible way. It is maybe the 4 biggest, the greatest single mistake that I've made as 5 Public Defender, is to allow a practice of horizontal 6 representation to take place. It is a major obstacle in 7 allowing attorneys to form relationships with clients. The 8 client is only passing through. The client realizes that 9 and the lawyer realizes that, and it affects the quality of 10 representation that lawyers are able to provide. 11 Q Have you ever tried to institute vertical 12 representation? 13 A On a number of occasions, Scott Carpenter 14 and I have sat down and brainstormed a method. We met with 15 the District Attorneys Office to see if there was some 16 method of going through and developing some partial vertical 17 representation, but we've never had enough lawyers and we've 18 always had too many cases and too many courts to cover for 19 us to be able to do that. 20 Pat Leonard told me that his average caseload for 21 the last six months in Felony Sessions Court has been 16 22 cases per day, average cases. If he has 16 cases in Felony 23 Sessions Court he couldn't be anywhere but down in Sessions 24 Court. He couldn't be handling anything else. He can't 25 handle 16 a day, would be my opinion, as hard as he tries. STEPHENS - Bahner 50 1 Q Are you familiar with the ABA Standards 2 For Defense Function? 3 A I am. 4 Q We'll ask Ms. Williams to put that board 5 up. 6 MS. WILLIAMS: (Complies.) 7 MR. BAHNER: We will want to introduce 8 this, may it please the Court. 9 BY MR. BAHNER: 10 Q Without reading those into the record, in 11 your experience, Mr. Stephens, how important are those 12 standards for lawyers in the Public Defenders Office? 13 A Those are standards that lawyers should 14 in each and every case maintain once they engage in the 15 representation of an individual accused of a crime. 16 Q Are your lawyers able to do that? 17 A No, sir. 18 Q If Lawyer A is assigned to represent John 19 Doe in General Sessions Court Misdemeanor Division and that 20 case is for any reason passed, will that same lawyer 21 represent Client A if the case comes up for trial again, 22 commonly, or not? 23 A He might. The courts are aware of the 24 impact on the police departments and officers having to 25 appear in court, and so the courts will take into STEPHENS - Bahner 51 1 consideration the officer's schedule, and oftentimes the 2 officer's schedule doesn't coincide with the lawyer's 3 schedule, and so when cases get reassigned oftentimes cases 4 go to other lawyers' dockets. There have been cases--I've 5 reviewed files in my offices where a single client has been 6 represented by seven different lawyers in my office; just 7 keeps getting passed off. 8 Q What's the effect of this on-- 9 JUDGE EMERY: That's the exception in the 10 rule, though? 11 MR. STEPHENS: That's the exception. 12 Seven would be the exception. I would say two would be the 13 rule. 14 JUDGE EMERY: And you concede that the 15 judges try their best to try to keep on your schedules. We 16 are-- 17 MR. STEPHENS: --that you do. 18 JUDGE EMERY: --well aware of your 19 schedules. Okay. 20 BY MR. BAHNER: 21 Q If a person is incarcerated when that 22 happens, what happens to that person when the case has to be 23 passed? 24 A The person stays in jail. 25 Q And how long does that typically occur? STEPHENS - Bahner 52 1 A These courts are very aware of 2 individuals who are in custody and go to great lengths to 3 get people out of jail if possible. If the threat to 4 society can be controlled, these courts, these judges, try 5 to get people out. And so if the State is not able to go 6 forward these courts often--these judges often provide the 7 remedy of releasing on some sort of supervised release that 8 assures the safety of the community and gets the individual 9 out of jail. But the circumstances being what they are, 10 there are certainly people who wind up staying in jail 11 because of the inability of our office, and oftentimes they 12 contribute to the problem, but there are circumstances that 13 result in people staying in jail longer. 14 MR. BAHNER: We would like to have this 15 made an exhibit. 16 (Whereupon, the above referenced document was 17 introduced as Exhibit No. 3.) 18 BY MR. BAHNER: 19 Q Are you familiar with the ten principles 20 of public defense? 21 A I am. 22 Q Are they reflected on this board which 23 Ms. Williams has just put up? 24 A They are. 25 Q Let me direct your attention to the STEPHENS - Bahner 53 1 second principle. What is that principle? 2 A "Where the caseload is sufficiently high, 3 the public defense delivery system consists of both a 4 defender office and the active participation of the private 5 bar." 6 Q What do you understand that to mean? 7 A Well--and it's one of the sad side 8 effects, I think, in public defender offices. Growing up in 9 Knoxville, professionally growing up in Knoxville, Knoxville 10 I think has--had a great collection of tremendous private 11 practitioners, some of the best, I think, in the 12 southeastern part of the United States. I always wondered 13 why the Memphis bar--and I don't mean to disrespect them, 14 but I always felt the Memphis bar was not at the same level 15 as the Knoxville bar. And, quite frankly, I always thought 16 the Nashville bar wasn't quite to the same level, from a 17 criminal defense standpoint, as the Knoxville bar. 18 In my view, the Knoxville bar was 19 certainly the best criminal defense bar in the state. I 20 think now I know why. The Memphis Public Defenders Office 21 was created in 1917. I think it's the second oldest public 22 defenders office in the country. The Davidson County Public 23 Defender Office was created in 1960. It's a very, very old 24 public defender office. 25 And I think what we're seeing in Knox County, after STEPHENS - Bahner 54 1 18 years of a public defender office, the private bar can't 2 sustain a practice--enough lawyers can't sustain an 3 appointed practice, and I think what you see is the gradual 4 weeding out, so to speak, of quality lawyers who are forced 5 because there's lack of adequate available cases--they move 6 on to something else. And I think what we're seeing is the 7 Knoxville bar's strength in terms of the number and 8 certainly the quality because the Public Defender Office 9 consumes such a large percentage of the cases. 10 Q Let me direct your attention to Principle 11 No. 4. Will you read that, please. 12 A "Defense counsel is provided sufficient 13 time and a confidential space within which to meet with the 14 client." 15 Q Do you have sufficient time to meet with 16 clients? 17 A No, sir. 18 Q Is 30 minutes something that is 19 consistently done, or are there many times when you cannot 20 spend 30 minutes with a client? 21 A Well, let me tell you, clients who make 22 bond, appear at bond and arraignment and they're told to 23 call the Public Defenders Office, when they call, the 24 switchboard operator will ask them two or three questions 25 which will immediately tell her who to assign that case to. STEPHENS - Bahner 55 1 They'll ask the client, What are you charged with? When the 2 client answers, A misdemeanor, or the client tells them the 3 offense and the switchboard operator knows it's a 4 misdemeanor, then they'll ask them what date that their 5 court date is, they'll know which lawyer is assigned in 6 Misdemeanor Court on that date. Then we divide the alphabet 7 so that one lawyer takes the first half of the alphabet and 8 another lawyer takes the second half of the alphabet. So 9 the switchboard operator, in just a couple of questions, can 10 immediately tell who is going to handle that case, and then 11 they'll send the caller to the individual secretary who will 12 then schedule an appointment. 13 So the scheduling is done by the secretary in 14 30-minute intervals. Many of my lawyers don't know what--so 15 I'll schedule interviews for every 30-minute intervals for 16 every day to prep that I have in order to get appointments 17 scheduled. I will tell you I am aware, and Ms. Williams can 18 testify, that there have been clients call in and ask for an 19 appointment and they have been told there aren't any slots 20 left, every 30-minute interval has been double-booked with 21 the entire prep week, you can't see your lawyer. 22 Q Now, quite apart from the in-client 23 interview, is investigation frequently required? 24 A Yes. 25 Q How do you and your lawyers handle STEPHENS - Bahner 56 1 getting investigation done? 2 A Well, we have four investigators, and 3 this year we'll handle 11,500 cases, but that amounts to 4 many more filings, and so there's a limit to what the four 5 investigators can do. So the investigation is not done in 6 many cases, just not done. 7 Q Have you worked as a District Attorney? 8 A I have. 9 Q And compare the work of a District 10 Attorney with the work as Public Defender. 11 A When I was in the District Attorneys 12 Office, and that's been many years ago, the mid '80s, I was 13 assigned to both Division II at one period of time, and I 14 was assigned to Division III, and what typically happens 15 when--and this Court knows when crime occurs police officers 16 respond to that crime scene, they are trained in securing 17 the crime scene. They are trained at collecting all the 18 evidence, taking the photographs, seeing to it that the 19 evidence is sent off to the appropriate crime labs, 20 requesting that the appropriate crime labs conduct forensic 21 testing on the evidence. They're very good at acknowledging 22 and identifying the witnesses. They secure those witnesses. 23 They take them to the police station. They interview those 24 witnesses. They oftentimes videotape those interviews. 25 They hand the videotape and the cassette tape to their STEPHENS - Bahner 57 1 secretary, who then transcribes the interviews. That 2 information is what a prosecutor needs to put his or her 3 case together, and much of it is supplied by a combination 4 of the KPD, the Knox County Sheriffs Department, the TBI, 5 the FBI, and I understand the D.A.'s office is currently 6 using a New Jersey forensic crime lab right now in one of 7 the cases they've gotten. So they have--and this isn't to 8 criticize them, but they have access to police agencies that 9 do a tremendous amount of leg work to prepare cases for the 10 prosecutor. 11 When I was in the prosecutor's office, I--this is 12 arbitrary, I acknowledge, but when I got a file I felt like 13 the case was about 60 to 70 percent ready for trial. Now, 14 there's certainly work a prosecutor has to do, and 15 oftentimes when the prosecutor gets into the file they 16 realize there's additional work that needs to be done, but 17 they can always pick up the phone and call KPD and say, I 18 need to talk to the detective in charge, here's the 19 additional work that needs to be done, and those detectives 20 respond. And so it's not that they don't have to do 21 anything, but the quantity of work the prosecutor has to do 22 is nowhere the quantity of work the defense lawyer has to 23 do. 24 Q Let me direct your attention to Principle 25 No. 5. Will you read that, please. STEPHENS - Bahner 58 1 A "Defense counsel's workload is controlled 2 to permit the rendering of quality representation." 3 Q Can you do that? 4 A No, sir--well, I'm trying. We'll see. 5 Q Well, in your opinion, are your lawyers 6 consistently able to do that? 7 A No, sir. There is a phenomenon across 8 the country that many states have that's called "declaring 9 unavailable." Lots of public defender offices have the 10 ability to simply notify the court and declare themselves 11 unavailable for appointment. It doesn't require a hearing. 12 It doesn't require--the public defender is an officer of the 13 court, and in many states they trust the public defender to 14 acknowledge when he or she can ethically take cases, but 15 they also acknowledge when he or she can't. And so some 16 state public defenders have a luxury of declaring themselves 17 unavailable. My office and the Tennessee Public Defender 18 System is not set up that way. 19 Q What is Principle No. 7? 20 A "The same attorney continuously 21 represents the client until completion of the case." That 22 is-- 23 Q That's vertical representation? 24 A Yes, sir. 25 Q And No. 8? STEPHENS - Bahner 59 1 A "There is parity between defense counsel 2 and the prosecution with respect to resources, and defense 3 counsel is included as an equal partner in the justice 4 system." 5 MR. BAHNER: We would like to have this 6 board marked as the next exhibit, may it please the Court. 7 (Whereupon, the above referenced document was 8 introduced as Exhibit No. 4.) 9 BY MR. BAHNER: 10 Q I want to touch on a few things in 11 conclusion. When the caseloads in the fiscal year 2007 are 12 broken down per attorney, generally what were those 13 caseloads per lawyer in the Public Defenders Office? 14 A We opened 13,259 cases in fiscal year 15 2007. At various times of the year we have--I think we got 16 as low as maybe 18 lawyers at one point. We got as high as 17 maybe 22 lawyers at one point during that year. And so I 18 don't know any way other than to take 13,259 and divide it 19 by some number, maybe 20, to give you an average of cases 20 per lawyer. It' runs around 550. My math's not great. 21 Q What were caseload figures for the first 22 three quarters of the current fiscal year? 23 A Mr. Merkle ran those figures for us... 24 MR. BAHNER: I'd like to hand one of 25 these to each member of the Court, if I may. STEPHENS - Bahner 60 1 JUDGE EMERY: Are those not included in-- 2 MR. BAHNER: No, this is new. 3 MR. DIMOND: Excuse me, Your Honor. I 4 don't have an objection, but I haven't gotten copies of any 5 of these exhibits and I wondered if I might have copies. 6 JUDGE MCGEE: Certainly. 7 JUDGE EMERY: Yes. 8 MR. BAHNER: I don't have any more, I'm 9 sorry, of this, but we'll get it to you later. 10 JUDGE EMERY: We can share. Do you need 11 it? 12 MR. BAHNER: Here. I'll give it to him 13 now. (Indicates.) 14 BY MR. BAHNER: 15 Q Okay. 16 A Mr. Bahner, I hope I'm responsive to 17 your question. But as of May 1st of 2008, we had 268 open 18 cases in Division I. We had 212 open cases in Division II; 19 247 open in Division III. We had 549 open cases in DUI 20 Court. We had 750 open felony cases. We had 1,460 open 21 misdemeanor cases, and we had 357 open juvenile cases, as 22 far as we can tell. 23 Q Now, are those ongoing cases? 24 A Those are ongoing cases, yes, sir. 25 Q Do these numbers reflect cases which were STEPHENS - Bahner 61 1 opened but disposed of? 2 A No, sir. These are cases that are still 3 open. We are currently engaged in the representation of 4 these individuals. 5 MR. BAHNER: We would like to make this 6 the next exhibit, which I believe is Exhibit No. 5. 7 (Whereupon, the above referenced document was 8 introduced as Exhibit No. 5.) 9 JUDGE CERNY: The court officer is 10 bringing in some additional copies to share with Mr. Dimond. 11 MR. BAHNER: I'm sorry we didn't bring 12 enough. 13 BY MR. BAHNER: 14 Q Mr. Stephens, in your opinion, as the 15 elected Public Defender, are the lawyers in your office able 16 to consistently meet the ethical obligations of Rule 8? 17 A No, sir. 18 Q Why? 19 A Too many cases. It's not possible. 20 Q Are they able to render, consistently, 21 across the board, effective assistance of counsel to the 22 people appointed to your office who are charged with a 23 crime? 24 A Mr. Bahner, if effective assistance--if a 25 prospective analysis includes me testifying under oath that STEPHENS - Bahner 62 1 my lawyers will meet their ethical obligations to their new 2 clients, I would say no, they would not render effective 3 assistance of counsel because they will not meet their 4 ethical obligations to their existing clients or to future 5 clients. They will not be able to do that. They are not 6 currently doing that. 7 Q In your view, what are the constitutional 8 issues which are the foundation for the public defender 9 lawyers' work in representing an indigent person charged 10 with a crime? 11 A A client has the right to a lawyer, and 12 that lawyer should perform reasonably effective--should 13 provide reasonably effective service. That's the standard, 14 as I understand it. And to assure that a client receives 15 reasonably effective assistance of counsel, one must assume 16 that all of the requirements that the ABA Defense Functions 17 set out are completed as it relates to each individual 18 client, and that's not being done. 19 My conclusion from that is, if you cannot do that, 20 try as you might, if you cannot meet the ABA Standards for 21 Defense Function and you cannot comply with Rule 1.1 and 22 1.3, you cannot at any stretch maintain that you're 23 providing reasonably effective assistance of counsel. 24 Q Are you all able to meet the promise of 25 Gideon? STEPHENS - Bahner 63 1 A No, sir. Every single day I look--well, 2 every single day I look at a picture of Clarence Gideon on 3 my wall and am moved by how this man, this 50-year-old 4 drifter, changed American jurisprudence. And the 5 realization, as Steve Grime (phonetic) says, never in the 6 history of the law, as he understands it, has such a life 7 been afforded so much lip service but in reality is a sham. 8 And, to me, it is shameful that I have allowed my office to 9 get into the situation that we're in, in terms of caseloads, 10 whether it's 15,000 cases; 13,000 cases; 11,570 or 11 cases. 11 I don't care what it is; our current caseload prohibits my 12 lawyers from being able to provide reasonably effective 13 assistance of counsel though they try as hard as they can 14 try. 15 Q Thank you. Is there anything else you 16 would like to say, Mr. Stephens, that I haven't asked you? 17 A I don't think so. Thank you. 18 Q Thank you. 19 JUDGE EMERY: Are there any questions 20 anyone wants to direct to the Public Defender at this time? 21 JUDGE JACKSON: Mr. Stephens, would it be 22 better to wait and address Mr. Merkle or yourself about how 23 some of these numbers are arrived at? Do you know? 24 MR. STEPHENS: Mr. Merkle is available 25 and he will-- STEPHENS - The Court 64 1 MR. BAHNER: He's the next witness. 2 MR. STEPHENS: He's probably better 3 suited to explain that. 4 (Off the record discussion.) 5 JUDGE EMERY: Let me ask one question. 6 And I mentioned this to you the other day, and we're getting 7 ready to get into this with the testimony of your technology 8 guy here. As far as cases where you decide you do have a 9 conflict, after looking into it, for case count purposes 10 when you get off a case, when you ask to be relieved, you 11 told me you divided that up into a--that it was done in a 12 certain number of days or after--I realize sometimes you 13 know immediately that you have a conflict and other times 14 you have to do some work before you decide whether or not 15 you have a conflict. 16 MR. STEPHENS: Right. What we've done is 17 we have figured out the number of hours that a lawyer has to 18 spend on a given case. We have about 1.7 hours per DUI 19 case. We have about 1.9 hours to spend on a misdemeanor 20 case. We have about two and a half hours to spend on each 21 felony case in Sessions Court. 22 What we have done is we have determined that if a 23 conflict exists in our representation and we discover that 24 conflict within five days, we are assuming that that case 25 did not require a tremendous outlay of services from our STEPHENS - The Court 65 1 office and we do not count it as a case. 2 If we have represented an individual for longer 3 than five days and then ultimately have to conflict off of 4 that case, we do count it as a part of our statistical base. 5 And Isaac will talk more in a moment about that. It's an 6 arbitrary figure. We figure that within three days we hope 7 the lawyer will be out to the detention facility. So 8 there's efforts involved, both secretarial and from the 9 lawyers' staff, involving that case, and so if that happened 10 we're going to count it as a case. If it hasn't happened 11 we're not going to count it as a case. 12 JUDGE EMERY: Okay. Thank you. 13 JUDGE JACKSON: What if they're not in 14 jail? It may be two, three weeks, a month, before you 15 interview them. 16 MR. STEPHENS: It could be. One of the 17 practices--we don't schedule interviews until a week before, 18 because we don't have--the week before their court date, 19 because we don't have any time to do that. But the conflict 20 is picked up at the time the case is entered into the 21 system, and the case is entered into the system the next 22 day. 23 JUDGE JACKSON: That's when you would-- 24 MR. STEPHENS: What will happen-- 25 (Off the record discussions held simultaneously.) STEPHENS - The Court 66 1 MR. STEPHENS: What happens when a case 2 comes in through JIMS, the secretaries enter it into the 3 case management system. If they hit a conflict 4 they'll prepare a memo and they'll get it to the lawyer 5 almost immediately. The lawyer has to make the decision 6 whether to conflict or not, but that decision will almost 7 always be made on the spot. Now, oftentimes the lawyer will 8 say, I can't tell, I'll have to do more work, so I'll have 9 to go do an interview to determine whether there's a 10 conflict or not, or I need more information, so that's the 11 delay. 12 JUDGE JACKSON: Thank you. 13 JUDGE MCGEE: You explained the 14 difference between caseload and workload, and I understand 15 that. The figures you've given us, like 550 cases per 16 attorney, is roughly what your attorneys are experiencing. 17 Is that under the State's definition, or is that your 18 workload definition? 19 MR. STEPHENS: That's caseload 20 definition. Workload is much higher than that. 21 JUDGE MCGEE: Okay. 22 MR. STEPHENS: And I will say, and this 23 is not to drive a wedge between fellow public defenders, but 24 if you'll look at the caseload statistic per lawyer in 25 Memphis it runs around 330 cases per lawyer. If you look at STEPHENS - The Court 67 1 Nashville it runs around 400, 420 cases per lawyer. If you 2 look at Chattanooga it runs about 520 cases per lawyer. We 3 are, by far, the highest of any of the four metropolitan 4 areas in the state. 5 The mistake that we made was creating the 6 office in 1990 and assigning seven lawyers to the staff. 7 We've been behind the curve since then-- 8 (Interruption in the proceedings.) 9 MR. STEPHENS: --chase staffing since the 10 time we were created. That was the problem. 11 JUDGE MCGEE: Do you maintain a record, a 12 stat, of your workload figures, as opposed to caseload 13 figures? 14 MR. STEPHENS: We think that the filing 15 figures more accurately reflect workload than the cases, so 16 we maintain filing figures and we maintain case figures. 17 JUDGE MCGEE: That's what I was curious 18 about. You know, we all know that one spree can involve 19 seven different victims, seven different factual scenarios, 20 and the State lumps it all together as one case. We also 21 know that there are cases where a person may get stopped for 22 running a red light and wind up being charged with DUI and 23 six other driving-related offenses. That wouldn't translate 24 into seven times the workload. 25 MR. STEPHENS: You're right. STEPHENS - The Court 68 1 JUDGE MCGEE: Do you take that into 2 account somehow in assessing your-- 3 MR. STEPHENS: No, sir. 4 JUDGE MCGEE: Okay. 5 MR. STEPHENS: In theory, I guess, in a 6 way, the caseload study does that on some level. I don't 7 know that there is an effective way of measuring workload as 8 it relates to individual files with an individual scenario. 9 JUDGE MCGEE: I haven't been able to 10 figure out any way to do it. 11 JUDGE JACKSON: Mr. Stephens, you say 12 that Chattanooga and Memphis and Nashville all have less 13 cases per attorney. How is the allocation made across the 14 state of public defenders? Is it not based upon how many 15 cases you handle? 16 MR. STEPHENS: What happens now is the 17 positions are awarded to the conference and then the 18 conference votes on how to assign those positions. 19 JUDGE JACKSON: It's not based on 20 caseload, at all? 21 MR. STEPHENS: No, it is based on 22 caseload, sure. 23 JUDGE MCGEE: Why didn't you get any 24 lawyers last time around? 25 MR. STEPHENS: Maybe it's my personality. MERKLE - Moore 69 1 I'm not quite sure. 2 JUDGE EMERY: All right. Ten-minute 3 break. 4 (Recess was taken.) 5 MR. MOORE: Our next witness is Mr. Isaac 6 Merkle. 7 JUDGE EMERY: Okay. 8 MR. MOORE: May it please the Court, I'm 9 Hugh Moore of the Chattanooga law firm of Chambliss, Bahner 10 & Stophel. 11 EXAMINATION 12 BY MR. MOORE: 13 Q Mr. Merkle, would you state your name for 14 the record. You've already been sworn; is that right? 15 A Yes, sir. 16 JUDGE EMERY: Yes. 17 BY MR. MOORE: 18 Q Okay. Would you state your name for the 19 record. 20 A My name is Isaac Merkle. 21 JUDGE CERNY: Mr. Merkle, please grab the 22 microphone and pull-- 23 JUDGE EMERY: Yes, pull that a little bit 24 closer to you. 25 JUDGE CERNY: Thank you. MERKLE - Moore 70 1 A My name is Isaac Merkle. 2 BY MR. MOORE: 3 Q And speak up. Judge Cerny said there's a 4 dead spot in the courtroom, so speak up. 5 A All right. 6 Q And you're presently the IT Director for 7 the Knox County Public Defenders Office; is that right? 8 A Yes, sir, that's correct. 9 Q And what formal educational background do 10 you have? 11 A Well, I have a high school diploma, and I 12 went to a community college for three semesters before I 13 moved on to seek employment. But my real education came in 14 the form of an apprenticeship to my predecessor as IT 15 Director at the Public Defenders Office. 16 Q And you have been at the Public Defenders 17 Office for what, 12 years? 18 A For 12 years. 19 Q And for how much of that time have you 20 been in IT work? 21 A For 11 years. 22 Q Okay. And you apprenticed under the 23 previous director there? 24 A Yes, sir, that's right. 25 Q Whose name was... MERKLE - Moore 71 1 A Daryl Young. 2 Q Okay. And you worked with him for 3 approximately a year, and then you took over the job? 4 A That's correct. He was phased out and I 5 was judged to be competent and able to take care of things. 6 Q Okay. And then so for more than a 7 year--for more than a decade you've been the primary 8 software IT person for the Knox County Public Defenders 9 Office? 10 A Yes, sir, that is correct. 11 Q Do you have other work experience in that 12 area? 13 A I've done freelance in IT consulting work 14 both inside and outside the legal community here in 15 Knoxville. I've also taught a couple of CLE classes, and 16 I-- 17 JUDGE EMERY: I don't mean to interrupt 18 you, but can you stipulate these qualifications or not? 19 MR. MOORE: I think that would be fine. 20 JUDGE MCGEE: I think we're all prepared 21 to accept him as an expert in his field. 22 MR. MOORE: Okay. That was actually the 23 end of the questioning so-- 24 (Off the record discussions held simultaneously.) 25 MR. MOORE: And there are three charts MERKLE - Moore 72 1 that Mr. Merkle has prepared, one of which has already been 2 introduced as Exhibit 5. I think that's the last exhibit 3 that was introduced. The other two--I guess I can just--I 4 have copies I can pass out to the Court. It's 2007 and 2008 5 statistical reports. 6 JUDGE EMERY: They can be found in the 7 original sworn petition, but they are probably categorized 8 better there. 9 MR. MOORE: Right. This is the 2007 10 report, and I have one for the two thousand... 11 JUDGE CERNY: Would it be fair to say 12 that these were already attached to the affidavit? 13 MR. MOORE: These two are. The 2007 and 14 2008 reports are attached to the affidavit. Exhibit 5 was 15 not. 16 JUDGE CERNY: Thank you. Okay. 17 (Off the record discussion.) 18 BY MR. MOORE: 19 Q Could you explain to the Court, briefly, 20 how you generated the numbers that appear in these 21 documents--I guess we oug