District Attorney Cox was honored to be selected by the Tennessee District Attorneys General Conference to argue in favor of changes to the way taxpayers money is spent for indigent defense in Tennessee and to argue against the secret hearings that are held in regard to such requests. Below is the text of his argument before the Supreme Court of Tennessee.

RULE 13 ARGUMENT

Presented Before the Supreme Court of Tennessee on February 11, 2004, by District Attorney Bill Cox, on behalf of the Tennessee District Attorneys General Conference.

Argument

Mr. Chief Justice, Honorable Justices of the Supreme Court of Tennessee;

Let me begin by saying, on behalf of the Tennessee District Attorneys General Conference, that we agree that indigent criminal defendants ought to have available to them all of the tools necessary for an adequate defense. We further agree that those necessary tools include effective counsel and whatever services or experts might be actually needed in a criminal trial.

The concern of our conference is not that indigent defendants receive needed services – we think they should. The concern of our conference is with the procedure whereby the need for these services is often determined.

We believe that that procedure - the ex parte hearing - accounts for a great deal of delay and unnecessary expense.

As stated in our comments to this Court - we believe that secret – closed door hearings - where discussions are held between a trial judge and a defense attorney regarding the evidence in a criminal case are ethically indefensible.

We believe that such private, secret hearings erode public confidence in the criminal justice system, offend traditionally accepted notions of fair play, and violate the victim’s right to be informed as to the status of their case.

In addition, we believe this procedure to be the least practical way for a judge to determine whether or not taxpayer’s money should be spent.

We would argue that the better way to make a determination, on how funds for indigent defendants should be allocated, is to allow the trial judge in a criminal case to gain information from both parties, not just one. We are convinced that after an open hearing a judge would be better able to understand the evidence and the theories of the case and be in a better position to make an informed decision as to the need, or lack of need, for requested services.

We submit that the ex parte procedure has fostered a system in this state allowing indigent defendants to spend far more than any non-indigent defendant would ever spend for a defense in a criminal case. And we suspect that much of that money is being wasted.

Over the last ten years indigent defense spending in Tennessee has increase by 289%. In the last five years annual indigent defense spending has increased from 9.6 million to 16.9 million dollars.

The following is an example from my jurisdiction as to why, I believe, these figures have risen so dramatically.

A criminal living in my county was on parole for Armed Robbery. It was not his first crime of violence – he had seventeen prior robbery convictions. In fact, he had always led and was continuing to lead a life of crime.

One evening he targeted some particularly vulnerable victims to rob and terrorize - an elderly woman and her adult daughter. The mother and daughter lived together since the daughter was mentally challenged and unable to live alone. They lived in a modest home. They led a simple life.

On this night the robber broke into their home and demanded money. The two horrified women told him that they had none. Infuriated by this response, he hog-tied the elderly mother to the bed, and, obtaining a cast iron skillet from the kitchen, he repeatedly smashed the defenseless woman’s skull. The daughter watched as her mother – and her only caretaker - died.

The robber, still not satisfied, took jewelry, took the family car and stuffed the daughter, still in her pajamas, into the car’s trunk. He drove to a wooded location near his house and removed the surviving victim. While trying to drag her deeper into the woods he fell and cut his hand. This fortuitous event caused him to abandon the girl in order to take care of his injury. He threatened her and told her to stay put – he told her that he would be back soon. The daughter ran through the woods to the safety of a nearby house and called the police.

The police found the stolen car a few blocks away. They followed a blood trail from the car to the robber’s house. When they confronted him he ran. After a short foot chase they caught him. The stolen jewelry was in his pockets. His hand was cut. The surviving victim positively identified him and his blood was found inside the stolen car. That blood, of course, contained his DNA. He was charged with kidnapping and first-degree murder during the commission of a robbery and a theft.

Since he had prior violent crimes, and in fact was on parole for a violent crime, a death penalty notice was filed.

The defendant had no history of mental illness or mental defect.

The public defender’s office had a conflict and two death penalty qualified attorneys were appointed by the court to represent the defendant.

For two years, during the pendency of this trial, the “defense team” met repeatedly with the court behind closed doors. The state, meantime, offered to let the man plea to life without parole.

On several occasions the case was continued. Apparently because whatever had been secretly approved had not yet been completed.

I was required on numerous occasions to tell the murder victim’s family that the case was being continued, and was not going to go to trial, for reasons that I was not permitted to know.

They couldn’t understand that, and, frankly, neither could I.

Eventually, after two years, the defendant accepted the state’s offer and pled guilty and was sentenced to life without parole. Everyone involved, I believe, knew that he would and knew that he should. The evidence was so overwhelming that there was little chance that he would escape justice. The defendant was guilty – he knew it - and his attorneys knew it. He ultimately established it, conclusively, when he pled guilty.

Several months ago I was able to secure from the administrative office of the court the defense expense records for this case.

I was shocked to learn that 232,000 taxpayer dollars had been spent on securing this man’s guilty plea. Of that, $117,000 was for attorney fees and $115,000 for various experts and investigators.

This defendant did not have a legitimate job – his job was being an armed robber and murderer. And yet he was able to expend $232,000, almost a quarter of a million dollars of state money, on a case that never even went to trial.

Of course I am not indigent. But had I committed such an atrocity, I doubt that I could have raised nearly a quarter of a million dollars in cash to spend on private attorneys, experts and investigators. Furthermore, even if I had that amount of money, I do not believe it would have been wise for my attorney, under these facts and circumstances, to encourage me to spend it in such a way. I would question my wisdom and the wisdom of those representing me as to why $232,000 dollars of my money needed to be spent before I pled guilty and spent the rest of my life in prison.

I would think that my counsel would have advised me not to spend money unwisely on experts and tests that were obviously not going to be fruitful or change the ultimate outcome of my case. I would hope that my attorney would not spend my money investigating matters that had already been investigated thoroughly by the police and that could produce no helpful results. I would hope, instead, that my counsel, believing that I was going to prison might advise me that my money might be better spent on some purpose more worthy than the support of him and his defense team. I do not believe that I would, or that any non-indigent defendant would, have squandered so much of their personal funds, even if they had such funds, in such an extravagant and nonproductive way.

It might be argued that all this money saved this defendant from the death penalty – well no, that is not the case. The state was willing to plea him to life without parole at any time and nothing, not one thing, was ever discovered, as the result of the defendant’s extravagant spending, that changed the state of the evidence or the state’s position on the case in any way. The money spent accomplished nothing for the defendant. It had no result other than waste and delay.

And this is not an isolated incident. Examples similar to this occur regularly throughout the state of Tennessee.

So, how, then, would open hearings, rather than secret ones help prevent waste and abuse such as this in a criminal case?

We are convinced that if a trial judge had more information about a case before making a decision on funding requests his decisions might be different – and better.

We believe that often money is authorized and spent to investigate and attack evidence that the state might not even be planning to use. Likewise, we believe that many times money is authorized and spent to rebut theories that the state may not even plan to advance. We believe that money is authorized and spent to duplicate investigative results without any basis to believe that the original results were in error. And we believe that, in some instances, the process is used tactically by the defense to create delay.

Those here who argue in favor of the ex parte hearing advance their argument upon only one ground. That ground is that the an ex parte hearing is necessary in order guard against the revelation of the defense theory of the case, and, by guarding this theory, obtain or maintain some strategic advantage. The proponents of the ex parte hearing argue: that since an affluent defendant can sometimes protect his theory of defense, and, thereby, obtain or maintain a strategic advantage over the state - an indigent defendant ought to be able to do the same thing.

We believe this argument to be legally, ethically, morally and logically flawed.

We believe, still, that a criminal trial is a search for the truth. And we believe that the outcome of a criminal trial ought to depend only on the quality and quantity of the evidence - and not on strategic advantages.

In Ake v Oklahoma, the United States Supreme Court case cited by those in support of ex parte hearings, the highest court in the land discusses the interest to be considered when providing or denying a “safeguard” to an indigent defendant.

Though the safeguard being discussed in Ake is the affording of a psychiatrist, we believe that the same analysis can be applied when determining whether the “safeguard’ of an ex parte hearing should be provided.

In Ake, the Court identified the interests to consider in making such a determination.

The analysis defines the private interest at stake and the governmental interest at stake and assesses the value of any proposed “safeguard” by its effect on either interest.

Ake, describes the private interest (or the indigent defendant’s interest) at stake as:” “an interest in the accuracy of the criminal proceeding” and a protection (for the indigent defendant) against an “erroneous conviction”

The government interest at stake, according to Ake is, similarly, “the fair and accurate adjudication of a criminal case.”

The Ake Court states that there is a compelling interest of both the State and the individual (the defendant) in the accurate disposition (of a criminal case). We agree.

Therefore, under the Ake analysis, if the private interest at stake is the “accuracy of a criminal proceeding so that there will not be an erroneous conviction” and the governmental interest at stake is, similarly, the “fair and accurate adjudication of a criminal case”. The question then becomes: how are either of these interests affected by an open adversarial hearing - rather than an ex parte hearing?

We submit that the defendant’s interests, accurate proceedings and an accurate verdict, are not affected by the failure to provide an ex parte hearing.

The government’s interest, however, can be affected if the ex parte hearing does what it is designed to do – and that is, protect defense theory and thus maintain a strategic advantage over the state.

Again, this is the argument advanced by the proponents of ex parte hearings - the necessity to protect defense strategy. If, indeed, there were no strategic advantage to be obtained or protected - there would be no desire by the defense to even have an ex parte hearing.

Ake as previously stated does not identify this “strategic advantage” as a private interest of an indigent defendant that should be protected by a safeguard.

The Ake court does, however, discusses this “strategic advantage” and how it might work to the benefit of a “private litigant” and to the detriment of the government.

The Court does so with this language: (and I quote}

“The states interest in prevailing at trial – unlike that of a private litigant - is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases. Thus, also unlike a private litigant, a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict obtained.”

Here the Court acknowledges that a “private litigant” might, through the use of wealth and stealth, be able to obtain or maintain a strategic advantage over the state and, through such strategic advantage, cast a pall on the accuracy of a verdict.

We do not believe, however, that the Supreme Court is saying, that since a “private litigant” might have the money to maintain a strategic advantage over the state, that results in an inaccurate verdict – that an indigent defendant ought to have that same ability.

We believe the court is saying just the opposite. Although the Court recognizes and acknowledges a “private litigant’s” existing interest in obtaining an inaccurate verdict – the Court does not identify such an interest as an interest to be protected when providing safeguards to indigent defendants.

Ake, therefore, does not establish a right to a strategic advantage for an indigent defendant in a criminal case – even though the court realizes and acknowledges that the wealthiest of defendants may sometimes obtain and maintain such an advantage.

The Ake Court clearly establishes that an indigent defendant’s interests, worthy of protection by a court, in a criminal case, are: (1) protection against an erroneous conviction; and (2) accuracy of the proceedings.

Requiring open hearings instead of ex parte hearings when rendering needed services jeopardizes neither of these interests.

There is simply, in our opinion, no right to a strategic advantage - and there should be none.

The reasons, again, are clear: a criminal trial is a search for the truth and not a game of strategy. Trial outcomes should be decided by the quality and quantity of the evidence and not by strategic advantages. The trial judge should have control over all aspects of the trial and should be allowed to hear all relevant information, from all parties, before making any decisions that might affect the trial or its outcome.

The stated purpose of an ex parte hearing is to protect the defense theory so that an indigent defendant might be able, through stealth and public wealth, to obtain a strategic advantage - in hopes that he might be able to affect the accuracy of a verdict. Or, in other words, obtain an unjust verdict.

We do not believe that this court, or any court should support a procedure, if the result of that procedure is to achieve or attempt to achieve an unjust verdict.

Injustice should never be our goal.

The commission approach:

Our argument against ex parte hearings before a commission are the same as our arguments against ex parte hearings before a judge. None of the problems we have addressed would be solved through the commission approach. They would only be made worse. The suggested commission approach would remove all control from the trial judge, place the decision making process in a body with even less information than the court, remove all accountability from the process and allow the state and the court to be held hostage by a defense attorney composed body. The expenditures would be conveniently hidden from public view and the result would be increased expense, longer delays and more opportunity for waste and abuse.

We urge the court therefore, in the interest of justice, to refrain from adopting a commission approach and, instead, enact rule changes that prohibit and restrict ex parte hearings.

We believe that if the Court were to adopt these recommendations – not only would unnecessary spending decline – but, as an added benefit, the quality of, and respect for, justice in Tennessee would be greatly enhanced.

With all due respect, I thank this court, on behalf of the Tennessee District Attorneys General Conference, for the opportunity to be heard.