Gideon Alert: Tennessee Supreme Court issues advisory opinion on sitting prosecutor appointed to public defender commission

BY David Carroll on Friday, September 10, 2010 at 10:20 AM

The State of Tennessee provides the majority of the funding for the right to counsel and trial-level services are provided through a statewide system of elected public defenders from the state’s 31 judicial districts.  District 20 (Davidson County - Nashville) and District 30 (Shelby County - Memphis) are served by non-elected local public defender offices, which existed prior to creation of the state system in 1989. [Correction: The original posting of this article contained an error.  Davidson County's public defender is an elected official.]

The Office of the Post-Conviction Defender (OPDC) provides representation to people convicted and sentenced to death who are unable to secure private counsel.  OPDC also provides continuing legal education training to public defenders and private counsel who represent indigents in capital cases, and serves as a resource to all attorneys who represent defendants in capital cases on a non-case-specific basis.  OPDC is overseen by a 9-member commission appointed by representatives of all three branches of government, with the conscious intention of reflecting a diverse mixture with respect to race, including the dominant ethnic minority population, and gender.

The OPDC statutes, however, fail to meet national standards in that they do not expressly prohibit sitting law enforcement officers, prosecutors, or judges from serving on the commission.  On July 13, the Lt. Governor, in his official capacity as Speaker of the Senate, appointed a sitting district attorney general to serve on the OPDC commission (district attorneys general are elected prosecutors).  This, despite statutory language that “the operation of the post-conviction defender commission and office of post-conviction defender shall be consistent with professional standards and shall not compromise independent professional judgment or create a professional or institutional conflict of interest, appearance of impropriety, breach of attorney-client confidence or secret or other violation of the Tennessee Rules of Professional Conduct or the Tennessee Code of Judicial Conduct (emphasis added).”

OPDC contacted the National Legal Aid & Defender Association (NLADA) for assistance in addressing the situation.  In a letter dated July 22nd, NLADA showed how the presence of a sitting prosecutor is inconsistent with professional standards.  Most notably, the American Bar Association Standards for Criminal Justice, Providing Defense Services (3rd ed. 1992), Standard 5-1.3: Professional independence states that “[b]oards of trustees should not include prosecutors or judges.”  NLADA’s Guidelines for Legal Defense Systems in the United States, Guideline 2.10 also advises that “[t]he Commission should not include judges, prosecutors, or law enforcement officials.”  And, NLADA’s Guidelines for Negotiating and Awarding Contracts for Criminal Defense Services, (1984), Guideline II-2: Members requires that “[t]he Policy Board should not include judges, prosecutors, or law enforcement officials.”

On September 2, 2010, the Board of Professional Responsibility of the Tennessee Supreme Court issued Advisory Ethics Opinion 2010-A-853, concluding that the aims of a prosecutor are “inherently antagonistic” to the duties of the Post-Conviction Defender.  The opinion states that “an attorney serving in such a dual capacity would, at minimum, present a significant risk of materially interfering with the attorney’s independent professional judgment” and suggests that the district attorney general withdraw from one of his duties or the other.

As of this writing, the prosecutor has not resigned from the commission.