How Sixth Amendment eventually led Tennessee to create a public defender system | Opinion

Editor's note: This is a regular feature on issues related to the Constitution and civics written by Paul G. Summers, retired judge and state attorney general.

I served four years active duty in the Air Force Judge Advocate General’s Corps (JAG), prosecuting and defending courts-martial.

Under the Uniform Code of Military Justice (UCMJ), all accused personnel were entitled to counsel, at government expense, regardless of financial status.

At the time, I thought all systems provided counsel for the accused, especially if a defendant or accused could not afford a lawyer. I was wrong.

In 1979 I transferred to JAG as a Reserve officer in the Tennessee Army National Guard. I was a young lawyer, age 29, with four years of experience under my belt.

Practicing law on the court square in my hometown in Fayette County, I was shocked. Tennessee had no public defender system.

If a defendant was indigent, he or she was not entitled to counsel unless charged with a felony.

In General Sessions Court, poor defendants had no lawyer for misdemeanors. On felonies the judge usually appointed the younger lawyers who were regular practitioners in that court.

Unless the client was indicted or charged by the grand jury and counsel reappointed, the lawyer was not paid by the state. Only on cases disposed of in Circuit or Criminal Court was the lawyer paid.

The payment did not cover a fraction of the time she or he spent in defense of the accused, whether disposition was by jury, judge, or plea negotiation.

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Volunteer State’s public defender system started 38 years ago

That system has changed now. Beginning around 1985, Tennessee now has a public defender (PD) system.

Public defenders run for election in the 32 judicial districts of Tennessee every eight years. They are on the ballot just like the district attorney general (prosecutor). By virtue of several U. S. Supreme Court cases, the 14th Amendment, and action by the Tennessee General Assembly, we have a constitutional system.

Lawyers are appointed for indigent defendants facing jail or prison time if convicted, including appeals and post-conviction proceedings. Juveniles facing consequences in juvenile proceedings; parents facing termination of parental rights; persons facing mental health determination; and others - all may have counsel, if indigent, due to constitutional and statutory provisions.

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Right to counsel used to apply only to federal courts

Amendment VI says: “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 defence (sic).”

These changes in Tennessee and other states all began with the 1963 unanimous decision by the U. S. Supreme Court in Gideon v. Wainwright.

We knew that the Sixth Amendment applied to federal courts. But in that case the Supreme Court applied the rule of counsel to all state cases where the defendant was facing jail or prison time for a felony. Later cases augmented the rule to any case, misdemeanor or felony, where a defendant was facing incarceration.

Now, many state statutes have applied the rule to situations where an accused is facing adverse consequences which are not criminal. Our system is much better and just.

We shall continue in the next article with the Seventh Amendment. Reading the Constitution is time well spent.

Paul G. Summers, a lawyer, is a former appellate and senior judge; district attorney general; and the Attorney General of Tennessee. Raised in Fayette County, Judge Summers resides in Holladay and Nashville.

This article originally appeared on Nashville Tennessean: How Sixth Amendment led Tennessee to create a public defender system