But the decision to transfer children to the adult system comes at great cost to the child and, according to some researchers, our community.

The CDC conducted a study based on an exhaustive examination of kids in the adult justice system. What it found was that transferring children to the adult system actually increased violent acts among this population.  The study taskforce went on to recommend that communities end the practice of youth transfers to the adult system if the intent of policy makers is to reduce violence.

Children incarcerated in the adult system are also more likely to be targets of violence and to cause harm to themselves.   A DOJ report about sexual violence within the correctional system found that even though children make up 1% of the U.S. prison population, they account for 13% of those sexually victimized by adult inmates.

Jailed youth also have the highest suicide rate among all inmates, according to a DOJ special report about suicides and homicides within jails and state prisons.

Nationwide, 7,500 children are locked up in adult jails even though federal law prohibits the incarceration of children in the adult system.  But the law does not protect children who have been transferred into the adult system.

According to records kept by the Shelby County Sheriff’s Office, an average of 22 children were held inside the Shelby County Jail during the month of April 2013.  That’s down from 29 children this time last year.

Since the DOJ investigation of the Shelby County Juvenile Court, transfers of juveniles to the adult system have dropped significantly.  The DOJ cited the Court for transferring too many children into the adult system and also charged it with equal protection violations due to the overrepresentation of black teens among those transferred.

According to a recent story in the Commercial Appeal, since the DOJ started investigating the court in 2009, transfers have declined from all-time high of 225 children in 2008  to 29 children as of April this year.

Relevant Article: 

5 Essential Reasons to Keep Kids Out of Adult Jails

You can also follow the latest transfer case in Shelby County Juvenile Court by clicking on this article in the Commercial Appeal (story behind a paywall.)

The Ballad of Angie Awry

The work of Tennesseans for Alternatives to the Death Penalty is the inspiration for a local playwright and his latest show, The Ballad of Angie Awry.

Bill Baker, the founding director of Our Own Voice Theater Troupe, wrote this play about mental illness and the criminal justice system based on efforts to end Tennessee’s death penalty for people with severe and persistent mental illness. In writing the play, Baker also drew from the experiences of people involved in The Jericho Project, an initiative of the Law Offices of the Shelby County Public Defender.

Our Own Voice Theater Troupe was established in 1991 as a way to engage Memphis in a conversation about mental health.

The Ballad of Angie Awry is the fictional account of a young women with schizophrenia who commits murder.

Where: Theater Works, 2085 Monroe

When: Friday, May 10th and Saturday, May 11th, 2013 at 8 p.m. Click here for ticketing

Representatives from the Law Offices of the Shelby County Public Defender and Tennesseans for Alternatives to the Death Penalty will be available to answer questions after Friday night’s performance.

“Think of your most embarrassing moment as an adult. (PAUSE) Now, share it with the person sitting next to you.”  - Thomas Giovanni

Brennan Center client empathy workshop

Much to their relief, no one had to divulge that information in this workshop for the Law Offices of the Shelby County Public Defender.  But Thomas Giovanni of the Brennan Center for Justice at NYU Law School used this scenario so lawyers could walk in their clients’ shoes.  Just for a few moments.

“Imagine how difficult this is for your client,” said Giovanni, “to talk to someone he doesn’t know about one of the worst days of his life.”

Cultivating empathy with clients is a critical skill for public defenders — one that Giovanni believes can build trust between lawyer and client. It’s this trust that can help defenders gain important insight into circumstances of the case and the person’s history.  This approach is at the heart of a client-centered practice in which client and attorney work together to achieve the best possible outcome, one that can hopefully keep the client from coming back.

Thomas Giovanni of the Brennan Center presenting to the Law Offices of Shelby County Public Defender

Giovanni is the director of the Brennan Center’s Community-Oriented Defender Network, a coalition of 60 defender offices across the country.  Shelby County was Giovanni’s first stop in a series of network office visits.

While in Memphis, Giovanni also met with a small group of local reform-minded community leaders for the first JustCity Roundtable.  The discussion focused on how public defense can be leveraged for a better community.

JustCity Roundtable: Leveraging Public Defense for a Better Memphis

Community-oriented defense seeks to engage public defenders with community-based organizations. When a defender office has healthy community relationships, it can help reduce the number of people, who come in contact with the criminal justice system. People can live more productive lives and communities can save on incarceration, court and enforcement costs.

You can read more about community-oriented defense and see what other public defense systems are doing in this publication by the Brennan Center.  The Law Offices of the Shelby County Public Defender are featured on page 11 of this report.

Giovanni also brought a special gift to to our office — one that reminds us of the heroic role public defenders once played in American culture.  See what that is and read about our office in this installation of the new Commercial Appeal series, Safe in Memphis.  Follow the series on Facebook and the hashtag #safeinmemphis on Twitter.

The grants are supported by the Department of Justice and the Bureau of Justice Assistance.

Shelby County will receive eight months of guidance and training beginning in September. The approach, according to this media release from The Bronx Defenders, is known as holistic defense, which is described as follows:

“Holistic Defense is an innovative, client-centered and interdisciplinary model of public defense, pioneered by The Bronx Defenders, which addresses both the circumstances driving poor people into the criminal justice system and the devastating consequences of criminal justice involvement by offering criminal and related civil legal representation, social work support and advocacy in the client community.”

Public defender offices in Atlanta, Birmingham, Oakland, St. Louis and San Jose were also chosen as the 2013 recipients.

Watch the video below to see how The Bronx Defenders have used this innovative approach to help their clients cross the justice gap. We are proud to be selected for this grant and look forward to working with one of the most effective public defender offices in the country!

Eyewitness identification expert, Dr. Jennifer Dysart, says it’s unlikely that the eyewitness is lying, but that his memory has been altered or ‘contaminated’ during the course of pre-trial preparation… and time.

Memory contamination happens as an individual adds new information to her memory of an event.  It typically happens without the person realizing her own recollection is mutating.

“In general, we’re not very good at remembering the context or the source of where we learned information,” Dysart told us as she waited to testify in a Shelby County trial. “So when an eyewitness is trying to recall whether they remember something from a crime or if they remember something from talking to other witnesses or seeing something in the newspaper or seeing a photograph on television or seeing something in court, it’s very, very difficult for the witness to be accurate when they are trying to remember, ‘How do I know that? How do I have this information essentially in my head?’”

Dysart says an eyewitness’ memory can be contaminated if law enforcement, prosecutors or defense attorneys bring him back to the crime scene, show him photos of the defendant in a different context, share evidence or other information he would not know otherwise, or even provide additional details about the defendant that might change his view of the accused.

Given that our memories can be so easily influenced by outside information, Dysart says it is inevitable that some memory contamination will occur.  That’s why she believes the best testimony is the first.

“Generally speaking the most accurate report, the closest to the person’s real memory of the event, is the report that happens first or right away. That is the way in which memory works – our memories are subject to contamination over time.”

In our daily lives, this inability to recall accurately may mean mistaken names or story details, but the stakes are much higher in the criminal justice system where false eyewitness identification can put innocent people behind bars… or even to death.

Dysart says of the 305 wrongful convictions overturned by DNA evidence in the U.S., false identification of an innocent person is the most common factor among wrongful convictions.  In fact, 75% of those cases involved one or more eyewitnesses mistakingly identifying an innocent defendant. Eighteen of those wrongfully convicted people had been sentenced to death.

See the Innocence Project for more information about wrongful convictions. 

Dysart argues that because the initial statement made by a witness is most accurate, it’s crucial that law enforcement do a thorough job of interviewing the witness before showing him photographs of the suspect or the crime scene. She adds that once the initial interview is complete, law enforcement, prosecutors, and defense attorneys must view the witness’ mind like a ‘crime scene’ — taking great care not to tamper with this critical piece of evidence.

“Think about memory as ‘trace evidence,’ forensic evidence in which it’s very important to make sure that it is preserved and collected correctly,” said Dysart. “You don’t want first responders running all over the crime scene.  We want to make sure we don’t contaminate the crime scene, the evidence.  For the eyewitness, that evidence is essentially in their head.  So it’s just as important that law enforcement doesn’t do anything, prosecutors don’t do anything, the media don’t do anything that potentially could contaminate the evidence.”

Jennifer Dysart, Ph.D

Jennifer Dysart, PhD, is an Associate Professor of Psychology at John Jay College of Criminal Justice in New York City. She has been conducting research on eyewitness identification for more than 14 years and has been an eyewitness expert for both state and federal courts.  She is currently serving as an eyewitness expert in the Memphis trial of Timothy McKinney, a man being tried for the third time in the murder of an off-duty police officer.  For a national perspective on the case and more about eyewitness accounts in this case, read this article published in The Nation, April 8, 2013. 

“Will you strive for justice and peace among all people and respect the dignity of every human being?”

“I will with God’s help.”

Stephen C. Bush

So, began Shelby County Public Defender Stephen C. Bush’s faith journey as an Episcopalian. And so began his recent special contribution to the Faith in Memphis section of the Commercial Appeal.

In this piece, Bush described how this promise still shapes his efforts to seek fairness, equality, dignity and justice for all people… as the leader of one of the oldest public defender systems in the nation.

We can all agree that everyone should get a “fair shake.” Yet most of us living within middle-class families do not often directly touch the justice system, While we can feel satisfied that our country has programs and systems in place to serve those in need, we often cannot appreciate what it means to be at the mercy of these social services.

Bush contends that the challenge of serving impoverished clients in the poorest big city in the U.S. cannot be fully addressed by the staff of the Law Offices of the Shelby County Public Defender.  He offers that real justice starts in the community, and that in a community so defined by its people of faith, Bush challenges us all to “strive for justice and peace among all people . . . with God’s help.”

Read the entire column from the Commercial Appeal.

Today, members of the Appellate Team at the Law Offices of the Shelby County Public and a group of visiting attorneys from across the country argued one of its finer points before the Tennessee Supreme Court. The main issue: the way in which Tennessee courts consider how the death penalty is imposed in similar cases. This so called “comparative proportionality” review is required by state law and is just another layer in the death penalty process that is intended to ensure fair and equal application of the ultimate penalty.

However, as the lawyers for Corinio Pruitt argued today, the comparative proportionality review has been complicated by inconsistent reporting and is in desperate need of an update. Mr. Pruitt’s case is especially unique in that he was convicted of Felony Murder; the jury did not convict him of intentionally killing the victim, yet he was sentenced to death. Consequently, it is especially difficult to compare his sentencing to others under the current process.

Attorneys from the Shelby County Public Defender’s Office, Jones Day and Sidley Austin hold a final Moot Court in preparation for oral argument in State v. Pruitt

Tennessee is one of 32 states that still have the death penalty. Maryland became the most recent state to abolish capital punishment when its legislature voted to do so last week. Tennessee has 81 people on Death Row. 32 of them are from Memphis. Depending on the Supreme Court’s ruling in this case, Corinio Pruitt and the others may have the opportunity to have their death sentences reviewed to include a comparison more in keeping with state law.

We are proud of our Appellate Team’s tireless challenges to the death penalty process in Tennessee. They are constantly fighting for a more just application of the law with the hope that Tennessee will ultimately end this ugly chapter in its history. Likewise, we are thankful to the attorneys of Sidley Austin, LLP and Jones Day, who have submitted briefs and traveled far to prepare and argue in the Pruitt case.

All of these attorneys are helping make Memphis and Tennessee more just!

Shelby County Mayor Mark Luttrell presented a Lifeblood participation award to Chief Public Defender Stephen Bush, lawyers and staff.

Lifeblood recognized top division winners for Shelby County’s winter blood drive.  The Law Offices of the Shelby County Public Defender took top prize in its category for highest percentage of employee participation.

The Division of Community Services took the overall participation prize.

The winners of each category were honored at a small ceremony in the Mayor’s Conference room.  Each was awarded a traveling trophy which they will keep until the next blood drive.

A representative from Lifeblood said Shelby County employees donated enough blood to save 600 lives.

According to Lifeblood, the Memphis area uses blood at an exceptionally high rate, because of the area’s large, sophisticated medical district.  It’s estimated that the greater Memphis area uses 120 thousand pints of blood each year.

Shelby County will hold its next blood drive in July.

We don’t usually offer personal insight or opinion on JustCity, but some stories, particularly those of injustice, beg to be told in first person.

I want to tell you about my drive home last Tuesday afternoon.

I get a lot of phone calls about expungement eligibility and welcome them all. Last summer, the Tennessee legislature passed a new expungement law that held promise for those who have paid their debt to society but still live with the stigma of criminal conviction.  It didn’t take long, however, for the new law to show its weaknesses.  The qualifications were so narrowly tailored, that few qualify.  For many who do, the requisite $350 fee stands as a final, significant barrier.  Tennessee courts have not seen anything close to the volume of petitioners expected by lawmakers.

Of the many phone calls I receive from people seeking relief , very few end with good news.

Which brings me to that drive home. I’d been swapping messages with two expungement candidates I’ll call Carlos and William. Carlos lives in Minnesota and needs only to complete the student teaching requirement for his education degree; William lives in Memphis and is trying to get a better-than-entry-level job for once. On that drive home, I had to deliver the same bad news twice.

Carlos is on the winning side of a long battle with addiction and poor decisions. He currently has the support of a church, his family and, most significantly, the administrators at the school where he hopes to do his student teaching. It’s his dream to teach, and he’s almost completed the degree that will allow it. However, during his days in Tennessee he was convicted of two crimes. Both non-violent. Both misdemeanors. Both more than 15 years ago.

Under current Tennessee state law, there is no provision for Carlos to have these convictions hidden or removed from his permanent criminal record. Ever.  In some states, many cases are automatically eligible for sealing or expungement a few years after the case is closed.  But not in Tennessee where Carlos’ record lives; though he has moved on and started a new life, he can never fully leave his Tennessee criminal record behind.

Even though his convictions are more than 15 years old, the fact that he was convicted on two misdemeanors makes him ineligible for expungement. So, they remain, and when I spoke to him last week, the university system says it will not authorize him to begin his student teaching despite the approval of the school where he would teach.

A teaching certificate and a full-time job with benefits for Carlos’ struggling family remain just out of reach.

Here in Memphis, William is in his seventh year of paying for two mistakes.  His first mistake was trying to cash a fake $600 check at a liquor store more than six years ago. William confessed, pled guilty and was given an opportunity to have the case erased from his record after one year in the diversion program.

His second mistake was choosing to smoke marijuana, a drug that has been mostly de-criminalized in two states. He tested positive during a drug screen, and his diversion was revoked. He was never rearrested or charged with any additional crime, but upon the termination of his diversion, he was sentenced to one year in prison. He has since fully paid the more than $1,200 in court costs he accrued as a result.

But I still had to tell William that he does not qualify for expungement, yet.  Tennessee’s new expungement law is available for those, like William, with one, and only one, conviction for certain crimes… and with no convictions elsewhere… and five years after completing the sentence. William has one conviction, and it has been five years. But now, he has been told he must wait an additional year before he is eligible for expungement.  Then, he must find and pay $350 before asking for an expungement.

That’s one more year in which he will likely be limited to temporary, minimum-wage labor when he can find it. I hope he makes it. And I hope he calls me back, so I can tell him, “Yes.”

And I hope that one day soon Tennessee will make second chances possible for deserving people like Carlos and William. They desperately need it, and they are not alone.

Stephen C. Bush
Shelby County Public Defender

Shelby County Chief Public Defender Stephen Bush has been selected to appear on an expert panel hosted by the prestigious Vera Institute of Justice.  The independent center for justice policy and practice reform is launching a national project to study the role of indigent defense in helping people with mental health disorders.

The effort will examine how resource constraints, ethical dilemmas, and practical challenges affect the ability of indigent defense attorneys to meet client needs.

Bush is regarded as a national expert on jail diversion strategies for those suffering with mental illness. He is the chief architect of the Jericho Project, one of the country’s most innovative approaches to addressing mental health needs in the criminal justice system.

Now more than a decade old, Jericho diverts people with serious mental illness and substance abuse issues from jail into the community with a comprehensive plan for mental health and substance abuse services.

The Vera Institute  launched its new justice initiative in January. It is in partnership with Public Research Associates, an internationally recognized leader in behavioral health research .

The project is funded by a grant from the National Institute of Justice. 

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