It's a lot more than just legal representation for the indigent
by Joe Tarr
The police know Marie Marsh well. She can't seem to stay out of trouble and has been in and out of jail in a couple of different counties for the past seven years.
But she's hardly a poster child for the hardened criminal. And when you hear her story, it's difficult to imagine jail doing her much good.
Her run-ins with the law began back in 1996, when she left an abusive husband. She'd had a long history of drug and alcohol abuse, but, cut off from her family, her indulgence careened over the edge.
"I was victimized for leaving my husband. We had a really nice place in West Knoxville," she says. "I took a really bad turn when I woke up and I realized here I am in these Knoxville missions with no one to care for me."
She was 44 at the time. The mission soon kicked her out because she kept getting drunk. "The street people started teaching me how to survive," she says. "When you're homeless, the police know who you are and pick you up regularly."
There were a couple of DUI charges, but most of her crimes were small and threatened only herself—public intoxication, usually from inhaling the fumes of $1 cans of paint, the cheapest high she could find.
"I became such a repeat offender that they put me on probation, but I could never make it through to complete my probation [before getting arrested again]. I've been doing this for three years, trying to get off probation," she says.
They kept throwing her in jail. That's where she is now, days away from finishing a six-month sentence at the Knox County Correctional Facility, a punishment that will finally get her off probation. She's talking over the phone—the county refused a face-to-face interview because of security concerns—and a guard barks orders in the background every so often.
With little money to her name, Marsh kept turning up in a familiar place looking for help—the Knox County Public Defender's Office. Lawyers aren't social workers, but most attorneys who take the altruistic route of defending the poor want to help their clients. It can be frustrating work.
"She kept picking those charges up, and she'd end up back in jail," says Marsh's lawyer, Marie Steinbrenner. "She really was able to articulate that she wanted to lead a different life. She didn't like this life, this cycle. She showed a great deal of initiative."
Marsh's story is typical of what public defenders see. Although they're representing clients in criminal cases, the problems usually run much deeper, with roots in mental illness, drugs and alcohol, unemployment, poverty, lack of education and domestic problems.
With that in mind, Knox County Public Defender Mark Stephens quietly opened the Community Law Office two years ago. It's an attempt to help his clients—and potential clients—get social services, education, and support.
It's not your typical public defender's office. There are art classes and plays held here, both for children and adults. Non-profit organizations have free use of conference rooms and the gymnasium-like auditorium.
It's the kind of cutting-edge program you might expect to find in some liberal New England city, but it's happening in Knoxville, which has had a public defender's office for only 13 years. For now, the program is small and getting praised at all levels of the justice system. Stephens has big ambitions for it.
It's a grand experiment that has caught national attention and could become the next evolution in legal representation for the indigent.
The Man in Charge
When Mark Stephens graduated from law school in 1977, he didn't have some romantic notion of being Atticus Finch. "I didn't go to law school because I wanted to be a lawyer. I didn't know what I wanted to do. I was sort of floundering," he says. "When I was in law school, I lacked direction. I didn't find one aspect more interesting than another. I didn't have an opinion about the criminal justice system."
But he found a purpose after graduation while he was waiting to take the bar exam. He sat in on a trial in which none other than Bob Ritchie handled the defense. Regarded by many as the best defense attorney in Knoxville, Ritchie simply awed Stephens.
"He's everything a lawyer should be. He's professional, he's ethical, honest, committed to the people he represents. I thought, 'Man, if I could be like that,'" Stephens remembers.
After that court session, Stephens introduced himself. Ritchie happened to have a clerkship open, and Stephens went to work for him for six months.
After passing the bar, he went to work in Ray Cate's office, and later formed his own practice with Doug Trant. As a defense attorney, he quickly learned that the justice system is far from perfect or unbiased.
"There was a period of time when I was really angry," he says. "Life altering decisions are made all the time by people who don't always have the all the facts.
"It was striking to me how much of a beast the system can be to a certain class of people," he says of his early cases. "I kept walking out of court saying, 'But that's not fair. It's not supposed to be about money, race, class or power—it's supposed to be about justice.'
"[The criminal justice system] can work and does work. What percentage of time does it work well? I can't tell you.
"I've certainly seen the criminal justice system work arbitrarily and do the wrong thing. I've also seen it work amazingly well and do incredible things. It's well designed. It's stood the test of time. But there are demands that are placed on it."
Under the Law
The basis for the right to legal representation is found in the Sixth Amendment to the Constitution, which states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
But for most of the country's history, the last phrase wasn't taken seriously. That changed 40 years ago after a drifter named Clarence Earl Gideon was charged with robbing a Florida pool hall. He asked the court to provide him a lawyer, but the court refused. Gideon was convicted, but he fought the decision. In a hand-written note sent to the Supreme Court—with poor spelling and punctuation, but well reasoned—he argued that without legal representation, his trial was unfair.
The court heard his case, argued by attorney Abe Fortas (who would later become a Supreme Court justice himself), and ordered a new trial. Gideon was acquitted. Known as Gideon v. Wainwright, the case became the basis for requiring the state to provide legal counsel to the poor.
Who Gets What Representation
The right to a lawyer has been widely celebrated in this country, but the indigent still have many cards stacked against them when they are accused of crimes. "Some people—even people accused of felonies—enter guilty pleas and are sentenced to imprisonment without any representation," Stephen Bright, director of the Southern Center for Human Rights, wrote on the 40th anniversary of Gideon. "Others languish in jail for weeks or months—often for longer than any sentence they would receive—before being assigned a lawyer. Many receive only perfunctory repre-sentation—sometimes nothing more than hurried conversations with a court-appointed lawyer outside the courtroom or even in open court—before entering a guilty plea or going to trial."
There are three main types of systems that local governments use to provide counsel for the poor—a staffed public defender's office, assigned counsel where private attorneys are appointed case-by-case, and the contract model, where a law firms bid on the services.
Tennessee used an assigned counsel system until 1989, when the state switched to a public defender model.
In Tennessee, public defenders are elected on eight-year terms and Stephens has been the only one to hold the post here. He's been aggressive about advocating for indigent rights. Not long after he took the job, he quickly realized the office was inadequately staffed. Seven lawyers were handling some 12,000 cases. At the end of 1991, Stephens asked to not be assigned any more cases until the ratio was more manageable—the relief was granted, and members of the Knoxville bar were temporarily assigned cases.
The state eventually increased funding to the public defenders, but it passed a law to help create more equity between public defenders and prosecutors. Whenever local governments decide to boost funding to district attorneys, they must also give 75 percent of that amount to public defenders.
Today the Public Defender's Office budget is about $3.2 million—$1.9 million comes from the state, about $940,000 comes from the county via matching funds. Clients contribute $339,000 through various court-mandated fees. The office has 22 lawyers, including Stephens, and four investigators (although one has been on active military duty for the past year).
Most people don't qualify for public defenders. The courts use a somewhat complicated guideline that takes into account income, poverty guidelines, seriousness of the crime, market rate for lawyers, the ability to make bond, and the number of dependents.
For instance, a single-mother making $12,000 a year probably won't get a public defender for most charges. Neither will a single person who makes as little as $8,000 a year.
"When you get charged with a real serious offense, they're going to give you a lawyer," says Stephens. "The problem is they can't process it without a lawyer.
"I don't think any fair-minded person can sit back and look at our system and say people are getting [free] lawyers that otherwise could afford them."
Many who use the public defender's office do end up contributing. The court requires indigent defendants to pay between $50 and $200. In serious cases, the court can order them to pay more, if they have some income or assets.
Looking Behind the Need
Stephens wanted the job of public defender because of his desire to help those less fortunate. "The work suits my idea of what my life should be about," he says. "I'm Catholic, and in the Catholic Church that I know there's an incredibly strong emphasis on helping the poor. That's always resonated with me. If we as individuals have a charge in life, that's it."
But wanting to help people in the criminal justice system can be a frustrating experience.
"You can see so clearly why they're in the system. It's not that they're evil or immoral. So much of it is environmentally driven. It's not rocket science why they're here," he says. "There are limits to how successful you can be when you have no support network. I see people all the time who just have a couple of major hurdles to overcome and need a little direction. While you're my client I might win in court and feel good. But I know it's just a little bit of time before the environmental factors start to play and you'll be back. I'm going to see you again more often than not.
"The client one day is a defendant and the next day is a victim and the next day is a defendant," he says. "They move in and out of that status all the time."
Public defenders around the country are beginning to look at ways they can do more for their clients. Stephens got the idea for the Community Law Office at a Harvard conference he attended in 1999.
He wanted to make the public defender's office a resource to help people deal with the problems that lead them to court. There are some programs like this in place already. People charged with a second DUI offense can get enrolled in rehab programs, for instance.
But the Community Law Office is much broader. Its goal is to direct people to whatever they need—drug and alcohol treatment, mental health services, job training and education, housing, transportation, and medical needs, civil court issues. Often the services are already there, people just don't know how to find them.
"I know there's an agency called Helen Ross McNabb. But I don't know where it is, what they do, whether you need insurance, what kind of a pay scale they work on," Stephens says. "If I had those kinds of questions, I can only imagine what some 19-year-old without family or a support network would know about it."
Attorneys refer clients to social workers if they show an interest or desire to work on other problems.
Steinbrenner, who works on DUI cases, recently had a client confess that she's addicted to crack, even though it didn't have anything to do with her case. "We took her downstairs and got her hooked up with a social worker," Steinbrenner says. "They have to want to partake in that. I don't offer it to every client. I let them bring it up." The staff also works with people at risk of ending up in court, particularly in the juvenile division. Kids at risk get arts, vocational, and life skills programming, among other things.
The law office has five full-time employees—an administrator, a youth coordinator, an assessment coordinator, and a vocational coordinator. There are about 40 volunteers who teach arts, vocational, living skills. Partner organizations include Helen Ross McNabb, Boys and Girls Clubs, Comprehensive Community Care, Knox County Sheriff's Department, the Health Department, and Cherokee Mental Health.
"Our primary focus is what is the client most concerned about outside the legal issues," says Linda McLaughlin, who oversees the law office.
Only a small percentage of people who go through the public defender's office are now using the services. In fiscal year 2002-03, 410 people were referred to the Community Law Office. Most of the referrals come from assistant public defenders, but the office also gets them from private attorneys, judges and even the district attorney's office. The most referrals were for employment and alcohol and drug counseling. Of those referrals, the office made some 4,828 contacts on the clients behalf to other agencies, employers, families, and other attorneys. And 378 of them were placed in programs of some type.
Stephens says he doesn't have the staff to handle many more clients through the office, so they're not aggressively pushing them. But more and more clients are asking about it.
So far the office has been run mostly on grants. They got a $100,000 Burn Grant for administration and assessment; $50,000 from HUD for vocational programs; $79,000 from the Tennessee Commission on Children and Youth for youth programs, among others.
Near Pellissippi State, the Community Law Office is in a new building along with the public defenders. The county built the building and the state is renting it. The yearly mortgage payments are less than the rent payments at their old space.
For now, social workers are simply helping the clients. Eventually, they could end up testifying on their behalf, to help them get reduced sentences. None of the programs are being pushed at the moment.
"We think it's really important they come to us because it's a change they want to make. Sometimes it's not a matter of choice, but 'how can I get a better outcome with my case?'" McLaughlin says.
Looking Ahead
Not all of what Stephens wants to do has been put in place. Eventually, he'd like to start a civil law component, which would help clients figure out how to use the law in their favor.
There are many who have legitimate Social Security or workers compensation claims that could be resolved with the help of a lawyer.
For instance, a client might have been arrested for possession of drugs. It turns out their drug addiction stems from an injury they got at work, which left them unemployed. Their old employer is liable for their injury. Instead of simply resolving their drug charge, Stephens says, "what I really need to solve is their Social Security claim or their workers comp claim and get them working on their drug addiction."
Others might have had their car seized for a possession of a small amount of marijuana. Without their car, they lost their job. They need a lawyer to get their car back. Or they might have been evicted for illicit reasons, but don't know how to fight it. Some simply need to clear up something with their driver's license.
In the next year, Stephens hopes to hire someone to direct people to get help with their civil claims. The public defender's office wouldn't litigate those claims, but would direct people to lawyers who could—either lawyers working with Knox Legal Aid or private attorneys willing to work at a reduced fee.
"What we hope to do is help clients recognize that they have civil action pending and connect them to local members of the bar. We're hoping to better advertise that there are lawyers out there willing to help them with their civil claims," he says.
If there's one aspect of Stephens' plans likely to ruffles some feathers, it's his ambition to be more involved in class action suits. He says he's not sure there are any actionable claims out there, but he points to two agencies many of his clients have had problems with in the past: KCDC (with its no-trespassing and eviction policies) and the Knox County Correctional Facility (which has had lawsuits in the past over living conditions, overcrowding and access to lawyers).
"I'm not saying we believe there's a lawsuit there. But in the event something should surface that impacts the public defender's office greater than anyone.... When Tim Hutchison denied lawyers access to clients at the jail, it was a private attorney who brought that case forward," Stephens says. "I couldn't do anything.
"If a private lawyer who represents one person can bring a lawsuit, and the public defender who represents thousands can't—that doesn't seem like an appropriate way to handle it. There are issues out there that overwhelmingly affect clients of the public defender's office that the public defender ought to be able to act on," he says.
"I'm not trying to build a civil division so I can bring lawsuits against the county," he adds. "But if a cause of action arises that disproportionately affects our clients, the public defender's office ought to be able to engage in those. The public defender is going to know better than anyone else when those cases should be brought."
How the Pros See It
Maybe it's professional courtesy, but lawyers tend to gush about the job that Stephens has done with the public defender's office. "Most of the bar respects Mark Stephens very much," says attorney Richard Gaines. "We wouldn't want anyone to run against him.
"It's the best public defender's office in the state in my opinion," he adds. "There are other fine offices...but Mark seems always on the cutting edge of what public defenders are supposed to be doing."
"Mark has succeeded in building what is recognized nationwide as an outstanding public defender's office," says Stephens' old mentor, Ritchie. "So many people in the criminal justice system are in the system not because they're bad people but because they have underlying problems related to alcohol and drugs or psychological and emotional problems.... His focus on the causes of crime can help break the cycle of crime in Knox County."
Another big supporter is the man whose office Stephens routinely battles in court—District Attorney General Randy Nichols. With the support of Nichols—who is an advocate of alternative sentencing—Stephens has probably had an easier time getting funding for his pilot program.
"If you're addicted to rock cocaine, and you steal at Wal-Mart, we can deal with the shoplifting in court. But just to deal with that and walk away, we're not dealing with the real problem," Nichols says.
Defendants making a good faith effort to deal with their problems will be treated with compassion in court and by his office, Nichols says. "If you've got a lengthy record, we don't pay attention to you anymore. We're not in the mood to give you a break," he says. "If you're new to the system, and you recognize that you have a problem and take steps to deal with—I think that ought to be considered [by the court]."
Among themselves, some lawyers are critical or skeptical of the Community Law Center, says Ben Barton, a UT law professor, who adds that he is in the "gushing" camp. "He's doing great public defender work for anywhere in the nation, there's no doubt about it."
But Barton has heard two criticism of the program. One is that only a small number of people actually benefit from the law center, and it's usually those who are looking for help anyway.
"There's an opposite criticism that says the money they're spending could be spent in other ways," Barton says. "The case load per public defender is really, really high. That makes it hard for them to do their job. Some might argue if you have the money, you could lower their case load, rather than spend it on a pilot program."
The office's caseload is pretty heavy—the 22 lawyers work on about 20,000 charges a year, defending 8,500 to 12,000 people, Stephens says. Measuring case loads can be difficult, because cases can be so different, Stephens says. There's one national standard that found public defenders should have no more than either 400 misdemeanor charges or 150 felonies or some combination thereof.
"We exceed those across the board," he says. There are lawyers in the office who have 1,000 DUI cases a year. The public defender's office does try to keep the criminal court case loads under control.
"I doubt there's more than one lawyer [position] being given up for the Community Law Office," Stephens says. "Which would help, but we think in the long run [the Community Law Office] is the best allocation of resources for the community and the clients because we think it's going to have the most lasting impact.
"We hope in the next couple of years we can test that theory and see whether we've made progress in reducing crime."
Stephens says he hopes to run for one more term—he's up for election again in 2006—and then retire. He hopes that by that time the Community Law Office will be stable enough that his successor will keep the program.
"I think we'll have a sufficient enough track record that it won't make any sense to kill the Community Law Office," he says.
Taking It Personally
Marie Marsh remembers what it was like to be on the streets. "When I wrapped a paint bag around my mouth, I didn't care that I was going to die," she says.
The last time she sniffed paint was before her recent six-month sentence, right after she'd gotten out of jail in Jefferson County. She got a hotel room for a few days, along with some paint, but she didn't want to be high anymore. So she started calling people asking for help and the police came by.
She is confident that when she gets out of jail this week she's done inhaling paint cans, drinking and sleeping on the street. She wants to spend time with her three children, volunteer at the homeless shelter that took her in, spend more time at her church.
"I'm just looking forward to living. I just want to live a while, go to plays, go to the theater. I want to get season tickets to Clarence Brown," she says. "I've been afraid to even leave my home.
"I feel that [street life] is over. I feel this nightmare that I had been in is over. It didn't kill me. Satan was out to get me and destroy me.... Since 2000, I have been saved, and I don't feel alone. I feel like God goes with me."
She has a bed waiting for her at PleasanTree, a supportive residence for women with a history of mental illness and homelessness. Marsh says it was a variety of people and programs that gave her hope to start again. But one who made a difference was her public defender, Steinbrenner.
"Marie, I could talk to her, and I could tell her exactly what happened. It's kind of like you're trying to come out of something and it's tight," she says. "I told her I failed."
November 20, 2003 * Vol. 13, No. 47
© 2003 Metro Pulse
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