This report was co-authored by Thomas Harvey, Co-Founder and Executive Director of the Arch City Defenders in St. Louis, MO; Stephen F. Hanlon, NAPD General Counsel and American Bar Association Vice Chair on the Criminal Justice Committee Section on Civil Rights and Social Justice; and, Norman Lefstein, Professor of Law and Dean Emeritus and Indiana University Robert H. McKinney School of Law. The report was published on August 14, 2017. This blogpost includes the introduction and summary of the published report.

At the request of the ABA Section of Civil Rights and Social Justice, ArchCity Defenders of St. Louis conducted a court watching program at the Davidson County General Sessions 8 Criminal Court in Nashville. The observations were undertaken by volunteer lawyers on Monday, September 12, 2016, preceded by a several-hour training program on Friday afternoon, September 9, led by ArchCity Defenders’ Executive Director, Thomas B. Harvey. 

?After completing their court watching, the volunteer lawyers submitted written accounts of their observations, which are the basis for much of this report. The purpose of the program was to determine the manner in which the right to counsel is administered in misdemeanor courts in Nashville. In addition, observers wanted to learn whether defendants are sometimes imprisoned for their inability to pay fines and fees assessed by these courts, frequently without legal representation or inquiry of the defendants’ ability to pay the costs imposed. The observations in Nashville are the launch of a larger, national project to review practices in misdemeanor courts in other states throughout the country. 

This report outlines what court observers learned when they visited Nashville’s General Sessions Courts in September 2016. In both Courts 1A and 3A observers witnessed the failure of Nashville’s judges to inform defendants adequately of their right to a lawyer and to determine if defendants’ waivers of counsel are “knowing, voluntary and intelligent.” As a result, it is doubtful that the judges’ conduct can be reconciled with Tennessee’s Code of Judicial Conduct, which requires in Rule 1.1 that “[a] judge shall comply with the law.”

In addition, court observers learned that when fines, fees or costs are imposed on defendants, judges make little to no effort at the time of imposition to determine if persons have the financial capacity to make the necessary payments. No one in Court 1A or the clerk’s office was observed informing defendants about the option of seeking an indigency waiver or a reduction of fines, fees, or costs. Defendants somehow have to know to request the indigency affidavit form, which apparently is not readily available in the courtroom. This strongly suggests the General Sessions Court prefers defendants not complete the affidavit form regarding their financial status, thereby maximizing the amount of revenue collected.

As for the prosecutors, court observers witnessed their engagement in practices that are inconsistent with their ethical obligations pursuant to Tennessee Rules of Professional Conduct, particularly in Court 1A. Prosecutors routinely ignore the requirement of Rule 3.8(b) to “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel,” as well as Rule 3.8 (c), not to “advise an unrepresented accused to waive important pretrial rights.” Additionally, the colloquies prosecutors engage in with unrepresented defendants who have not waived the right to counsel violate other ethical rules, i.e., Rule 4.1 (Truthfulness in Statements to Others) and Rule 4.3 (Dealing with Unrepresented Persons).

In fact, a coercive atmosphere pervades Court 1A when the prosecutor calls defendants’ names and the judge has not yet taken the bench. From the outset of the proceeding, the prosecutor’s obvious goal is to arrange for defendants to plead guilty. The prosecutor makes no mention of a defendant’s right to a lawyer, but instead informs each defendant of the state’s plea offer. When a defendant expresses a desire to speak to the judge, as occurred in one instance, the prosecutor advises that this is not possible, but if this is what you want, your case will be set for trial. The operation of Court 1A in this fashion does not comply with the way in which the right to counsel is required to be administered and is a patent violation of the prosecutor’s ethical duty.

The burden of these practices fall disproportionately on the poor and minorities, because these are the persons who are the most frequent defendants in the courts observed. Over the course of a year, just in Court 1A alone, approximately 30,000 persons are impacted annually, as noted earlier in this report. Unfortunately, what transpires in the courts observed in Nashville is not all that different from what happens in countless misdemeanor courts in much of this country, as documented in the Introduction to this report.

An exploration of the reasons that misdemeanor courts in Nashville and other cities function as they do is beyond the scope of this report. Nevertheless, we comment briefly on one of the obvious major causes – the desire of judges and prosecutors to handle the substantial volume of the courts’ misdemeanor business as expeditiously as possible. It is undoubtedly more efficient and less expensive if defendants’ cases can be resolved without 20 defense attorneys. If defendants do not waive their right to a lawyer, those appointed for the indigent will need to be paid, and they inevitably will take the time of judges and prosecutors, raise questions and make legal arguments, and will want to participate in plea discussions.

Ultimately, this report is about the rule of law and the conduct of members of the bar who, despite an obligation to adhere to legal and ethical principles, routinely violate their solemn duties. The desire to operate efficient and cost-effective courtrooms cannot excuse the conduct described in the preceding pages, which deny defendants their right to a lawyer and fundamental fairness required by due process of law. It is ironic that defendants in the Nashville misdemeanor courts described in this report are charged with violations of law and then appear in courts where judges and prosecutors routinely violate their own obligations mandated by law and ethical rules.

Finally, this report demonstrates the need for members of the legal profession and other interested persons to participate actively in court observations throughout the nation. Misdemeanor courts almost always are of “low visibility,” operating with scant public attention from the outside world. It is important, therefore, that procedures that fail to comply with legal and ethical rules in these courts be exposed so that essential reforms can be implemented.  

You can read the entire report at: