Follow-Up Questionnaire from the Nashville Campaign to End the New Jim Crow
March 18,2014
Mr. Glenn Funk
222 4th Avenue N., Suite 100
Nashville, TN 37219
(615) 255-9595
[email protected]
Ms. Diane Lance
[email protected]
General Rob McGuire
P.O. Box 190337
Nashville, TN, 37219
(615) 500-5345
[email protected]
Dear Mr. Funk, Ms. Lance, and General McGuire:
Thank: you for attending our District Attorney Candidates Forum at The Temple on
March 6, 2014. On behalf of the Nashville Campaign to End the New Jim Crow, below please
find a list of twenty-five additional questions from our members. Ifpossible, we respectfully
request that you provide a written response to each ofthese questions by April 3, 2014. In
addition to your responses during the Candidates Forum on March 6, your answers to these
questions will be circulated to our emaillist and to the media without any endorsement from our
organization.
Sincerely, .
.f}fJ~
Daniel A. Horwitz, Esq.
Nashville Campaign to End the New Jim Crow
[email protected]
r---~~~~~~~------
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Bradv Violations
1. In January of this year, Shelby County Assistant District Attorney Thomas Henderson
admitted that he had withheld exculpatory evidence while he was prosecuting a death penalty
case. The Tennessee Supreme Court administered only a public reprimand, even though
disbarment was the presumptively appropriate sanction under the Rules of Professional Conduct.
Memphis District Attorney Amy Weirich announced that she would not impose any further
discipline against the attorney and that she would allow him to continue prosecuting cases. As
Nashville's District Attorney, how will you ensure that your office meets its obligation to turn
over exculpatory evidence? Do you favor open-file discovery? If someone in your office
commits a Brady violation, how will you discipline that person?
Capital Punishment
2. Do you support the use of the death penalty? When=-if ever=-would you seek the death
penalty, and why?
3. A Colorado District Attorney opposes allowing the family members of murder victims to
make statements opposing the death penalty during the sentencing phase of capital cases.
Would you allow victim impact statements when the victims oppose capital punishment?
Sentencing
4. Do you support HB 2151, a House Bill that would allow for the creation of a Tennessee
criminal justice reform council?
5. What, if anything, would you do as District Attorney to avoid incarcerating and deporting
undocumented residents for misdemeanor offenses, which often results in families being tom
apart and left without their primary wage-earner?
6. What is your position on mandatory minimum sentences? If it were up to you, would you
keep the laws the same, or would you support a policy change? If you support a policy change
relating to the use of mandatory minimum sentencing, will you use your position as District
Attorney to advocate for the changes that you support?
Juvenile Justice
7. National research studies have demonstrated that communities are safer when fewer juveniles
are transferred to the adult system. What is your position on the transfer of youth to the adult
system? Would you favor an alternative or intermediate system of sentencing laws applicable to
juveniles?
8. Juvenile Court in Davidson County holds detention hearings four days each week to
determine whether juveniles must remain in lock up or be released to a parent. With rare
exceptions, the youth brought to court for these hearings are poor children of color. Too
frequently, these children=-who are brought to court in shackles-c-are only eleven or twelve
years old. What are your thoughts on this problem, and how might the DA's office respond to
it?
Indigent Defense Funding
9. Attorneys in the Public Defender's office are frequently forced to take on as many as twelve
new clients per attorney per day, and they are routinely assigned annual caseloads that far exceed
the bounds of the ABA's maximum caseload standards for providing competent representation.
Would you support providing more funding to the Public Defender's office to ensure that all
indigent defendants receive competent representation?
10. In Tennessee, appointed attorneys are paid just $40-$50 per hour to represent poor
defendants, and they are not reimbursed for overhead expenses. Only Wisconsin pays its
appointed attorneys less, but unlike Wisconsin, Tennessee generally caps payment at $1,000 for
misdemeanors and $1,500 for felonies, meaning that our state compensates appointed attorneys
at the lowest rate in the entire country. As a result, Tennessee's appointment funding system
strongly discourages private attorneys from taking appointments, further burdening Public
Defender's offices. The Tennessee Supreme Court, which is in charge of appointment funding,
has recently acknowledged that it is aware of the problem, but has protested that there is
insufficient funding available to pay appointed attorneys fairly (despite recently voting to raise
its own pay). Do you support raising the compensation rate for appointed attorneys?
Policy
11. The current emphasis of our adversarial system is on convicting or defending the accused.
This system is not necessarily focused on "restorative justice," which also considers the concerns
of the victim, the defendant's family, and the community. Do you have a position on restorative
justice? If so, how would you seek to implement restorative justice in Davidson County?
12. Tennessee Code Annotated, Section 40-32-101 (g) allows for a person's criminal record to be
expunged under certain circumstances. One requirement is the payment of court costs, fmes, and
a $350 fee to the Clerk of the Court. If a Judge waives these fees for an indigent person seeking
expunction, would you consider the fee requirement met?
13. Do you support ending the war on drugs, and if so, how will you help end it? Would you
support a policy of pre-trial diversion to drug court for all persons charged with drug possession?
14. Many of the inmates in our local jails have not been found guilty of any crime but cannot
make bail. They often have families and jobs, and are often held for months only because they
are poor. The only difference between these inmates and others charged with the same or similar
crimes is their lack offmancial resources. Do you think this is a problem in Davidson County,
and if so, how would you address the problem? Do you think a defendant's indigent status
should be a factor when setting bail?
15. Some Davidson County prosecutors will make an offer to settle a case and state that the
offer is good for one day only, or only if the defendant does not file any motion to suppress
evidence. If you are elected, would you allow your ADAs to continue this practice?
16. The practice of "over-indicting," or charging defendants with crimes more serious than the
evidence supports, is perceived to be a common practice in Davidson County. Do you agree
with this assessment? If elected, what steps, if any, would you take to curb this practice?
17. There have been increasing reports nationwide about prosecutorial misconduct resulting in
wrongful convictions. Some District Attorneys have responded to this problem by creating
"integrity units" to review reports of prosecutorial misconduct. What is your position on this
solution? Would you support creating a unit independent of the DA's office to investigate
allegations of prosecutorial misconduct?
18. You have each previously discussed the need to be much more selective in applying the
"drugs in school zones" law, and have stated that this law should not be applied to the typical
defendant who is charged with simple drug possession. Will you also support an office policy
against using the "school zone" enhancement as leverage while plea bargaining?
19. In her book "The New Jim Crow," Michelle Alexander discusses the erosion of 4th
Amendment rights. Even if they are constitutionally permissible, do you support law
enforcement's use of pre-textual stops?
20. What policy change within the District Attorney's office that would be your top priority and
why?
21. Virtually the same rate of black, white and brown folks use and sell drugs, but % of those
imprisoned for drug offenses are minorities. Why is that the case, in your opinion, and what
would you do about it?
22. What are your thoughts about criminally punishing poor people who cannot afford to get
their drivers' licenses back or are prohibited from obtaining a driver's license because they are
undocumented? Many times such situations become a vicious cycle because pleading guilty to
certain license-related offenses causes one's license to be suspended for another year.
23. Are you concerned that our current system seems to disproportionately criminalize people
with mental health issues, people who have a history of being abused, and/or people who are
homeless? In addition to Mental Health Court, what would you do differently as the District
Attorney to ensure that we are not just locking up the homeless or those with mental illnesses,
rather than treating them?
24. HB-222l proposes a study and evaluation by the Tennessee Department of Corrections of
post-release issues including the ability of released inmates to find jobs, housing, and healthcare,
to reinstate their voting rights and licenses, and to access to beneficial social services. Do you
support this bill, and if so, would you use your position to advocate for this law and similar laws
that are smart on crime, not just tough on crime?
25. What is your stance on the use of civil forfeiture?
GLENN FUNK
Dear Mr. Horwitz,
My responses to your questions are as follows:
1. I favor open file discovery, and that will be the default position of the office on every case. If
a situation arises where an assistant does not want to follow that policy, there must be a very
good reason such as safety of a victim or witness. Any case where an assistant believes that
open file discovery is not appropriate, the team leader will review that decision or I will get
involved personally.
Strict adherence to Brady is a condition of continued employment. Therefore any assistant who
knowingly and willfully commits a Brady violation will immediately lose their job.
2. I am personally opposed to the death penalty. However, on September 1 I will take an oath to
administer the laws of Tennessee. As such, I will continue to enforce the death penalty when it
is appropriate under the law. Currently the District Attorney follows an evaluation form which
considers all of the statutory factors which must be evaluated. I will not only continue use of
that procedure, I will seek input from the victim's family, the police investigators, the Assistant
DA assigned to the case, and the team leader of that division. I will also invite input from
defense counsel for my consideration prior to my filing notice of intent to seek the death penalty.
In cases where notice has been filed, defense counsel receives funding for mitigation
investigation only AFTER the State has filed the death penalty notice. Therefore, I will
reexamine the initial decision after defense counsel has completed the mitigation
investigation. Once again, I will take input from all individuals who participated in the initial
decision, and then decide whether the case still merits a death penalty prosecution.
I will only undertake this process where there is absolute certainty of guilt, and where I feel that
the law is clear that the community, as represented by the jury, must consider this verdict.
3. Yes.
4. The criminal code in Tennessee was last overhauled in 1989. Since then, numerous changes
have been made by the legislature to the wording of certain crimes and to the ranges of
punishment for some crimes. What I would like to see is more input from attorneys, both
prosecutors and defense counsel, before changes are made to the criminal code. As District
Attorney, I will use my experience of working in courts across the state on a daily basis for the
last 29 years, to personally work with the legislature to make sure that the laws as administered
are in fact targeting the behavior sought to be prohibited.
5. When I am District Attorney, crimes committed by undocumented residents will be
prosecuted the same as prosecutions against legal residents. Undocumented status is not a
mitigating factor just because ICE may deport. Similarly, the office will not prosecute an
individual more harshly just because of that individual's status. I understand that a deportation
often leaves a family without a primary wage earner and tears families apart. I understand that
any incarceration of any resident can be traumatic to an individual and a family. However,
when incarceration is necessary, the DA's office will not hesitate to advocate that position.
6. When I hear "mandatory minimum sentences," I think of Federal crimes with mandatory
minimums, especially drug crimes. In that context, I oppose mandatory minimum sentences. I
am confident that when the facts of a case warrant significant incarceration, then the DA can
make a compelling case to the excellent judges in Davidson County to convince the Court to
impose the correct sentence.
There are some state crimes in Tennessee that carry mandatory minimum sentences that I have
no intention of attempting to abolish. DUI First Offense carries a mandatory 48 hours in
jail, Second Offense 45 days and Third Offense 120 days. At the other end of the spectrum,
Second Degree Murder carries a mandatory minimum punishment of 15 years, with no option of
probation. With regard to these offenses and others within the code, mandatory minimum
sentences are important components to the law.
I could go through the whole criminal code, crime by crime, but the point is, I am running for
DA, not the legislature. I will enforce the law. I will use prosecutorial discretion at times to
make prosecution fair and sensible, while keeping the city safe.
7. Only the most serious, violent offenses should be transferred from juvenile court to the adult
system. I believe taking the youth of an offender into account is an appropriate consideration in
sentencing. I do not believe the legislature needs to compose an alternate sentencing structure
for juveniles convicted in adult court. However, if the legislature enacts such a system, I will
follow that structure.
8. Pursuant to Tennessee Code Annotated 37-1-114, involving death or serious bodily injury,
Juveniles in Davidson County are detained for serious felonies and possession of firearms
offenses. Otherwise they are released to a parent or guardian promptly and are not held until a
detention hearing. Juveniles are also held for detention hearing when they possess firearms or are
already on probation for a previous offense. An 11 year old with a gun, given that child’s
immaturity, is especially dangerous to him or herself as well as others. In the rare situation
where those facts exist, I support the statutory policy requiring that individual to only be released
after a detention hearing.
9. Yes.
10. I support raising the compensation rate for appointed attorneys.
11. Most District Attorneys already take into account the concerns of the victim, the community
and the defendant's family. This is not a concept that is new to Nashville or most jurisdictions
where I practice. Where an Assistant District Attorney has not properly considered all of these
factors, it is incumbent on the defense attorney to bring these matters into the plea bargaining
process. If that fails, the defense attorney must bring these considerations to the judge during a
sentencing hearing.
12. Yes
13. Currently in Nashville, persons charged with a first offense simple possession are already
given the opportunity to have the case dismissed and expunged simply by attending a four hour
class. I will continue that policy, and will treat offenses that are essentially health offenses in a
manner which does not cripple an individual but instead provides that person with support. This
support may take many forms, including treatment, probation, drug screens or other suitable
interventions.
14. According to the Tennessee Code, bail should be set in a reasonable amount. "Reasonable
amount" is defined as an amount high enough to assure the defendant's appearance in court to
answer the charges, but not higher. As I discussed at the Forum, I believe that our Grand Jury
should be able to indict almost all cases within two months of the case being bound over. I also
believe that when a case is settled at General Sessions on an Information with a plea to
probation, those Informations should be processed within a week. Further, in those instances,
bond should be lowered to allow the defendant to be released while waiting on the Information to
be processed.
15. Davidson County DAs should not be bullies or make threats regarding plea offers. Plea
offers rise and fall throughout a case based on the strength of a case. If a motion to suppress is
heard by a judge and overruled, the State's case has just grown stronger. As such, the plea offer
may change. On the other hand, at a motion, the State may learn of some problem in the
case. Then, even if the case survives the motion, the ADA may decide to reduce the offer. All
of this is to say, cases are fluid. Offers rise and fall.
The issue prompting the question deals with a perception that some DAs may use their power to
bully defense counsel. Bullying will not be tolerated. Careful consideration of the current merits
of a case will be encouraged.
16. Indictment will be proposed only for crimes which the District Attorney's office believes
have merit based on the facts, circumstances and proof available at the time the case is presented
to the Grand Jury.
17. The courts and the Board of Professional Responsibility already handle any claims of
prosecutorial misconduct.
18. I will work with the legislature to tighten the language of the school zone law so that it
protects schools and children without causing widespread incarceration beyond the substantial
punishments already on the books for narcotics offenses. Assistant DAs will enforce the law but
use prosecutorial discretion to seek fairness and justice.
19. In the Whren decision, the Supreme Court of the United States approved pre textual stops,
but warned that courts must make careful analysis of the claimed probable cause. I believe that
officers should make stops based on observed violations of the law, and that stops should not be
mere fishing expeditions without any indication of criminal activity.
20. Vertical prosecution of violent crimes. Currently, when a preliminary hearing is conducted,
it may be months before the DA who actually will try the case meets with the Detective. During
that period of time, the defense attorney can prepare a defense, talk to witnesses and investigate
the scene. With vertical prosecution, the DA can analyze the case through the preliminary
hearing and discover any holes or problems with the case. Once the hearing concludes, the DA
can meet with the detective to discuss any additional witnesses that need to be interviewed or
evidence that needs to be analyzed. This way, the State can be assured that possible defenses can
be considered and, where appropriate, countered. Also, if the State has the wrong person
charged, or the right person charged with the wrong offense, those errors can be remedied
quickly. Vertical prosecution will promote more effective prosecutions, a greater chance to get
the charges correct and a greater probability of success at trial.
21. This question was discussed in detail at the forum. On their face, the drug laws are racially
neutral. Statistics indicate that enforcement is not neutral. The DA's office will enforce the law,
and will be aware of the need to be fair to all parts of the community.
22. Good public policy demands that all drivers are licensed. Everyone drives. When policy
creates barriers to keeping a license, other problems are created. For one, unlicensed drivers
don't have insurance, and if a wreck happens, we want the at fault driver to have
insurance. Another issue is safety of police officers who pull over a motorist. If that motorist is
licensed, the officer knows who has been stopped and their history. For these reasons and others,
we should be helping people obtain and keep driver's licenses.
23. The District Attorney's office must begin to participate in the team that creates the mental
health plan established in the mental health court. Jail cannot be a preferred option for the DA's
office when dealing with people who have mental health issues.
24. I believe that support for people who have been released from the TDOC is crucial to
helping reduce the rate of recidivism. That's why I served on the board of Dismas House, why I
have been an advocate of Men of Valor and Reconciliation Ministries and why I believe former
inmates should have access to health services. I have also assisted former clients reinstate their
voting rights once they are eligible,
25. In Tennessee, as in many jurisdictions, if a person is arrested for a drug crime, many of that
person's assets can be seized and forfeited to the State. A person's car can be seized if it
transported narcotics, facilitated a drug sale or was bought with drug proceeds. Any cash can be
seized and forfeited unless the citizen can prove that none of the cash seized was drug related.
Once property is seized, the citizen must file a petition for the return of the property, and pay a
cost bond. A hearing is conducted by an administrative law judge months later. All this is
separate from the criminal process. A lawyer is usually retained to handle the civil forfeiture
case on behalf of the citizen.
For a brief time in the 1990s, the Sixth Circuit in the Ursery case held that civil forfeiture was
double jeopardy. The State could not try a citizen one time and take his property, and then
another time and take his liberty. The Supreme Court reversed, reasoning that civil forfeiture
punished the property, not the property owner, and therefore there was no double jeopardy
violation.
Currently, Metro Legal handles all civil forfeiture actions where Metro Police make a
seizure. The DA's office only handles forfeitures where the seizing agency was the Drug Task
Force.
My position with regard to the "use of civil forfeiture" is that people who sell drugs should not,
upon being caught and convicted, continue to reap the rewards of their criminal
enterprise. However, I believe the legislature can create, and the DA's office can prosecute,
forfeiture actions where citizens are held to answer in a single proceeding.
DIANE LANCE Follow-‐Up Questionnaire from the Nashville Campaign to End the New Jim Crow March 18,2014 Daniel A. Horwitz, Esq. Nashville Campaign to End the New Jim Crow [email protected] Brady Violations 1. In January of this year, Shelby County Assistant District Attorney Thomas Henderson admitted that he had withheld exculpatory evidence while he was prosecuting a death penalty case. The Tennessee Supreme Court administered only a public reprimand, even though disbarment was the presumptively appropriate sanction under the Rules of Professional Conduct. Memphis District Attorney Amy Weirich announced that she would not impose any further discipline against the attorney and that she would allow him to continue prosecuting cases. As Nashville's District Attorney, how will you ensure that your office meets its obligation to turn over exculpatory evidence? Do you favor open-‐file discovery? If someone in your office commits a Brady violation, how will you discipline that person? The Brady violation committed by the senior Shelby County Assistant District Attorney should never happen. Whether the reason be intentional or “human error,” open file discovery is absolutely the best practice – especially in capital cases. When I was in the District Attorney’s Office, my area of focus was child sexual and physical abuse cases as well as child homicides. The penalties for these crimes are severe with no possibility of parole which is why, over time, I had a practice of doing open file discovery in order to reach the common goal of a just and fair result. In deciding how to discipline a Brady Violation, a determination needs to first be made if the violation occurred because of a: 1) lack of training/inexperience; 2) poor leadership and oversight; 3) caseload stress/fatigue; or 4) misconduct. In making this determination I would establish an internal ethics review panel that would also conduct internal audits of case files. Capital Punishment 2. Do you support the use of the death penalty? When-‐if ever-‐would you seek the death penalty, and why? One of the first things I will do as District Attorney General is to re-‐evaluate the internal review process for potential death penalty cases. My goal is to ensure that the process is one that follows the law and effectively identifies the most unconscionable, deplorable, cruel and callous offenders. In addition, I will ensure that only the most even-‐handed, knowledgeable and experienced Assistant District Attorneys are part of the recommendation process. The District Attorney General has the sworn responsibility to uphold the law. Finally, I believe that everything possible must be done to eliminate the danger that innocent people will be executed. Any death penalty case must have the very highest standard of complete and credible evidence. 3. A Colorado District Attorney opposes allowing the family members of murder victims to make statements opposing the death penalty during the sentencing phase of capital cases. Would you allow victim impact statements when the victims oppose capital punishment? I would permit victim impact statements of family members – even if those family members oppose capital punishment. Sentencing 4. Do you support HB 2151, a House Bill that would allow for the creation of a Tennessee criminal justice reform council? It is a mistake for the State to view its sentencing laws as firm and final. Throughout history, sentencing laws have continuously evolved. This evolution usually goes hand in hand with changes in our moral concept of what is right, just and fair. For this reason, I strongly believe that the State should re-‐establish its Sentencing Commission – involving critical stakeholders – including District Attorneys and Public Defenders from across the state. 5. What, if anything, would you do as District Attorney to avoid incarcerating and deporting undocumented residents for misdemeanor offenses, which often results in families being torn apart and left without their primary wage-‐earner? This is an important issue in Davidson County given that we have the fastest growing immigrant population in the Country -‐ with 12% of our population being born outside of the United States and nearly half of that 12% being recent immigrants. I agree with the concern being expressed in this question regarding disproportionate penalties for undocumented residents. Adding to this concern is the fact that there is no legal right to an attorney during civil immigration proceedings. There is an interesting program worthy of consideration in New York City where the Public Defender’s Office provides free legal counsel to those facing deportation from within the criminal justice system. This has resulted in 15% fewer deportations. 6. What is your position on mandatory minimum sentences? If it were up to you, would you keep the laws the same, or would you support a policy change? If you support a policy change relating to the use of mandatory minimum sentencing, will you use your position as District Attorney to advocate for the changes that you support? I will support any effort to re-‐establish the state’s Sentencing Commission and fully participate in efforts to reach improved and more equitable sentencing alternatives. Over the years I have noticed a shift in our city’s collective community consciousness regarding mandatory minimum sentences. During the course of my campaign, I have heard these concerns expressed across the county as I have been attending meetings and knocking on doors. Noteworthy is that these concerns cut across all racial and socio-‐economic divides. This tells me that Davidson County is moving beyond a desire to just discuss this issue and moving towards a call for statewide sentencing change. Juvenile Justice 7. National research studies have demonstrated that communities are safer when fewer juveniles are transferred to the adult system. What is your position on the transfer of youth to the adult system? Would you favor an alternative or intermediate system of sentencing laws applicable to juveniles? Juvenile court is the place where Metro should partner with as many community partners as possible to avoid future adult transfers of juvenile offenders. Having begun my career in public service as a counselor for gang entrenched youth in San Diego, California I have seen first-‐hand the effectiveness of juvenile diversion programs. In this role, I provided individual and family counseling at a residential nonprofit program for gang entrenched youth. In addition, during the summer between my first and second year of law school, I was placed in charge of a summer camp program for high risk youth. Each day of the summer, I took a group of 20 teenagers (teenagers that other camps would not accept) to all the wonderful places that San Diego had to offer. Most of these teenagers had never hiked a mountain, been to the beach, or seen a sea lion despite living only twenty minutes away from those types of experiences. Opportunity for amazement, wonder, and learning does not come equally to all children and juvenile court can help get kids back on the right track before any criminal behavior begins and/or escalates. 8. Juvenile Court in Davidson County holds detention hearings four days each week to determine whether juveniles must remain in lock up or be released to a parent. With rare exceptions, the youth brought to court for these hearings are poor children of color. Too frequently, these children-‐who are brought to court in shackles-‐are only eleven or twelve years old. What are your thoughts on this problem, and how might the DA's office respond to it? If an Assistant District Attorney is not deeply saddened by the sight of a child in shackles, that ADA is either too young or too jaded to work in juvenile court. It is important to always remember that the work of the ADA focuses both on community safety and rehabilitation. To this end, the District Attorney must carefully place the type of ADA that looks towards effective solutions and creative alternatives in juvenile court, one that remembers that in juvenile court the victim is often on both sides of the case. Additionally, I would work to ensure that there is proper funding to re-‐establish Victim Witness services at juvenile court. Indigent Defense Funding 9. Attorneys in the Public Defender's office are frequently forced to take on as many as twelve new clients per attorney per day, and they are routinely assigned annual caseloads that far exceed the bounds of the ABA's maximum caseload standards for providing competent representation. Would you support providing more funding to the Public Defender's office to ensure that all indigent defendants receive competent representation? I agree that attorneys in the Public Defender’s Office are stretched very thin in terms of their ability to spend the appropriate amount of time with clients and preparing cases. Both public defenders, district attorneys and many judges exceed maximum caseload standards. I think a particular area of concern that heightens this problem for the public defender’s office is the amount of cases that they are assigned to handle the day of court. This practice further squeezes their resources and potentially impacts the quality of their representation to existing clients. While working in the Mayor’s Office on court docketing changes, I also had the opportunity to support Dawn Deaner’s idea to establish an arraignment docket in general sessions court. Ms. Deaner is hopeful that this docket will reduce the number of cases her Assistants are appointed on the day of court. This is a goal worthy of support by the District Attorney’s office because it furthers justice. 10. In Tennessee, appointed attorneys are paid just $40-‐$50 per hour to represent poor defendants, and they are not reimbursed for overhead expenses. Only Wisconsin pays its appointed attorneys less, but unlike Wisconsin, Tennessee generally caps payment at $1,000 for misdemeanors and $1,500 for felonies, meaning that our state compensates appointed attorneys at the lowest rate in the entire country. As a result, Tennessee's appointment funding system strongly discourages private attorneys from taking appointments, further burdening Public Defender's offices. The Tennessee Supreme Court, which is in charge of appointment funding, has recently acknowledged that it is aware of the problem, but has protested that there is insufficient funding available to pay appointed attorneys fairly (despite recently voting to raise its own pay). Do you support raising the compensation rate for appointed attorneys? Raising the compensation rate is certainly desirable. I cannot however speak to the State’s ability to fund a rate change – just as I cannot speak of the State’s ability to fund other existing unfunded mandates (e.g. weapons forfeiture laws). Policy 11. The current emphasis of our adversarial system is on convicting or defending the accused. This system is not necessarily focused on "restorative justice," which also considers the concerns of the victim, the defendant's family, and the community. Do you have a position on restorative justice? If so, how would you seek to implement restorative justice in Davidson County? I am firm in the law but I also believe in compassion and restoration. I am the type of person that always seeks ways to improve how things are being done. In fact what most distinguishes me from the other candidates is that I am the only one who has not accepted the status quo during the course of my legal career and has implemented change in our judicial system. I re-‐vamped how the District Attorney’s Office handled domestic violence cases and how it formally reviewed child sexual and physical abuse cases. While working for Mayor Dean, I led over 100 community members in an effort to identify the many ways that our law enforcement and judicial system could improve victim safety and offender accountability. Dramatic changes have been made as a result of my team’s work and the guidebook that I wrote. The District Attorney’s Office now has a domestic violence division, a victim resource center is being built within the courthouse (so victims no longer have to sit alongside their offenders in a crowded courtroom), 10-‐12 advocates will be added to our court system, patrol now has access to order of protection information en route to the scene, and two podiums are being added to courtrooms so victims will not have to stand within inches of their offender when testifying during order of protection hearings. I ask those reviewing this questionnaire to not doubt that I have the courage and inclination to discard poor practices and make needed policy and practice improvements. As for restorative justice, I am certainly open to learning more and making a determination on if it is appropriate for Davidson County. 12. Tennessee Code Annotated, Section 40-‐32-‐101 (g) allows for a person's criminal record to be expunged under certain circumstances. One requirement is the payment of court costs, fines, and a $350 fee to the Clerk of the Court. If a Judge waives these fees for an indigent person seeking expunction, would you consider the fee requirement met? It is not just for a person’s socio-‐economic status to determine if they have a criminal record or not. Yes – although this issue resides within another Metro Department. 13. Do you support ending the war on drugs, and if so, how will you help end it? Would you support a policy of pre-‐trial diversion to drug court for all persons charged with drug possession? I have spent my entire career focusing on violent crime, victim safety, and offender accountability for those who commit repeated violent offenses. Violent crime has always been and will always remain my top priority. I am supportive of any successful initiative that diverts non-‐violent offenders out of our criminal justice system and to a path of recovery and productivity. 14. Many of the inmates in our local jails have not been found guilty of any crime but cannot make bail. They often have families and jobs, and are often held for months only because they are poor. The only difference between these inmates and others charged with the same or similar crimes is their lack of financial resources. Do you think this is a problem in Davidson County, and if so, how would you address the problem? Do you think a defendant's indigent status should be a factor when setting bail? Bail should be set at the lowest amount needed to ensure a defendant’s appearance in court. For this reason, a defendant’s indigent status should be considered. As I have said previously, a defendant should not be worse off for the same crime as others because of their indigent status. Fortunately, Metro has the ability to gather all types of data so long as the right questions are asked. Bond/indigent status data is critical to identifying 1) if this is an issue; and 2) the extent of the issue. Once the data is collected and evaluated, I believe the appropriate venue for discussion is the Mayor’s Criminal Justice Steering Committee that consists of both law enforcement and criminal justice top leadership. 15. Some Davidson County prosecutors will make an offer to settle a case and state that the offer is good for one day only, or only if the defendant does not file any motion to suppress evidence. If you are elected, would you allow your ADAs to continue this practice? I do not believe that the courtroom is the proper venue to play “chicken” when a person’s liberty is at stake. Ethical behavior and good faith offers are what matters. In determining “good faith,” it is important to explore the motivation behind both parties (e.g. is the DA being a bully by giving an ultimatum or is the defense attorney threatening a frivolous motion to delay the case or discourage victim/witnesses presence in court). 16. The practice of "over-‐indicting," or charging defendants with crimes more serious than the evidence supports, is perceived to be a common practice in Davidson County. Do you agree with this assessment? If elected, what steps, if any, would you take to curb this practice? I would address the practice of “over-‐indicting”. I believe that defendants should be charged with the offense(s) that suit the crime/evidence. 17. There have been increasing reports nationwide about prosecutorial misconduct resulting in wrongful convictions. Some District Attorneys have responded to this problem by creating "integrity units" to review reports of prosecutorial misconduct. What is your position on this solution? Would you support creating a unit independent of the DA's office to investigate allegations of prosecutorial misconduct? Prosecutorial misconduct resulting in wrongful convictions is an egregious violation of the ethical obligations of an Assistant District Attorney. If I were to find that this was an issue, its correction would become a top priority. I would certainly explore and institute national best practices for uncovering and responding to prosecutorial misconduct. 18. You have each previously discussed the need to be much more selective in applying the "drugs in school zones" law, and have stated that this law should not be applied to the typical defendant who is charged with simple drug possession. Will you also support an office policy against using the "school zone" enhancement as leverage while plea bargaining? As a mother, I believe that the school zone law was intended to keep our children safe and free from drug dealers as they learn and play. That intent should be carried forward in the charges selected for the offense. 19. In her book "The New Jim Crow," Michelle Alexander discusses the erosion of 4th Amendment rights. Even if they are constitutionally permissible, do you support law enforcement's use of pre-‐textual stops? Pre-‐textual stops are part of a larger discussion regarding intentional and unintentional racial practices in our law enforcement system. Metro’s statistical data can (if requested) can be formatted in a manner that would help leadership uncover any concerning practices and/or outcomes. Once again, I believe the Criminal Justice Steering Committee is an appropriate venue for these discussions to take place. 20. What policy change within the District Attorney's office that would be your top priority and why? As District Attorney, I will be putting a tremendous amount of emphasis on violent crime – in particular crime against women, children and the elderly. I plan to establish a true Family Justice Center for Nashville. Additionally, because of the great deal of concern that I have heard over the lack of consistency among ADAs. I would work hard to make the work of each ADA consistent. It should never be a defendant’s or a victim’s lucky or unlucky day depending on which ADA they get in court. 21. Virtually the same rate of black, white and brown folks use and sell drugs, but % of those imprisoned for drug offenses are minorities. Why is that the case, in your opinion, and what would you do about it? I believe racial, socio-‐economic, pre-‐conceived perceptions and environmental reasons are often all at play and result in disproportionate outcomes. I think each day there is a complex web of reasons for this issue that often work in unison. For example, poverty is often concentrated in minority communities. Where there is more poverty there is often a higher crime rate. Where there is a higher crime rate, there is often a greater police presence looking for non-‐law abiding behavior. 22. What are your thoughts about criminally punishing poor people who cannot afford to get their drivers' licenses back or are prohibited from obtaining a driver's license because they are undocumented? Many times such situations become a vicious cycle because pleading guilty to certain license-‐related offenses causes one's license to be suspended for another year. This is an unfortunate State issue that traps many low-‐income individuals who live in Davidson County. I agree fully that it is an unnecessary and a vicious cycle that results in much more severe consequences for the poor. I agree fully that this issue needs to be corrected. 23. Are you concerned that our current system seems to disproportionately criminalize people with mental health issues, people who have a history of being abused, and/or people who are homeless? In addition to Mental Health Court, what would you do differently as the District Attorney to ensure that we are not just locking up the homeless or those with mental illnesses, rather than treating them? Having been the director of a shelter that served those who are homeless as well as domestic violence victims, I am strongly opposed to the criminalization of those who are homeless. Given that the leading causes of homelessness are mental illness, substance abuse, domestic violence and unaffordable housing -‐ a coordinated social service response rather than law enforcement and prosecution is appropriate. I do believe that Will Connelly, Director of the Homelessness Commission, is doing a good job working in close cooperation with partner agencies in order to prioritize housing placement by vulnerability (rather than first come first serve). In addition, the work that advocates are doing to assess vulnerability and help establish housing, socialization and a support network is the type of work that can permanently move individuals out of homelessness. A tool that is being used to further this effort is central entry system that fosters a collaborative response to individuals who are homeless. I would work with community partners to keep these vulnerable individuals out of jail and into services. 24. HB-‐222l proposes a study and evaluation by the Tennessee Department of Corrections of post-‐release issues including the ability of released inmates to find jobs, housing, and healthcare, to reinstate their voting rights and licenses, and to access to beneficial social services. Do you support this bill, and if so, would you use your position to advocate for this law and similar laws that are smart on crime, not just tough on crime? A debt paid is a debt paid. Released inmates that have served their time should be able to re-‐enter society in a productive way. I believe that this is often not the case and an evaluation of the barriers to re-‐entry and possible solutions should be explored by all stakeholders within the system. 25. What is your stance on the use of civil forfeiture? If executed properly I have no issue with civil forfeiture. If executed in an unethical manner and/or a manner that is inconsistent with public safety then Metro should re-‐examine policy and practices and take any needed corrective measures. Answers to Questions from “The New Jim Crow” Forum
Respectfully submitted by Rob McGuire, Candidate for District Attorney
1.) I have lectured across the country on prosecutorial ethics and I have preached
“open file” discovery at every lecture. In my almost thirteen years of practice I
have conducted open file discovery not only in First Degree Murder cases but
in other more routine cases. The policy at the District Attorney’s Office will be
that all discovery will be open file with the exception of protecting personal
information of a victim or witness to maintain witness safety in cases where
that is feared to be a danger. I will ensure this by continuing to train A.D.A.’s
on their Brady obligations and to create a culture of Brady compliance by
encouraging open file discovery and disciplining Brady violations. An A.D.A.
who willfully withholds potentially exculpatory evidence in any case will be
immediately terminated and their conduct reported to the Board of
Professional Responsibility by me personally. An A.D.A. who unintentionally
withholds exculpatory evidence will be disciplined by suspension with the
cause of the problem remedied immediately.
2.) I believe the capital punishment can be an appropriate punishment in the
rarest of circumstances. The office currently has a process to review each First
Degree Murder case for the death penalty. In nearly thirteen years, in over 30
murder trials and an additional 40-50 homicide prosecutions I have never once
recommended that the State seek the death penalty. For me personally in
order for the office to seek the death penalty the evidence would have be even
stronger than proof beyond a reasonable doubt. There could be no real doubt
at all that the right person was being charged and potentially convicted. I
would convene a team of myself, the Deputy District Attorney, the Criminal
Court team leader for the division where the case was assigned, another senior
prosecutor (where appropriate) and the assigned A.D.A. All of us would have
to agree not only that the right person was being charged but that there was
proof beyond a reasonable doubt of multiple aggravating factors and
comparatively light proof of mitigating factors. Routinely, the office has only
sought the death penalty in cases where a defendant has committed multiple
homicides and I believe that is an appropriate, if unofficial, standard to use as
well. To me, the evidence would have to place the defendant’s crime in the
category of “the worst of the worst”. In other words the acts would have to be
so horrific and so terrible to merit an extraordinary commitment of public
resources to such a punishment. Once the State sought the death penalty if the
3.)
4.)
5.)
6.)
defendant ever wanted to take responsibility and accept a sentence of life
without parole (or multiple life sentences) I would be hard pressed to decline
such an offer even after conviction at trial.
I would allow such statements. However, I would give a victim’s family’s
opposition to the death penalty great weight in deciding whether to seek
capital punishment in the first place. If a victim’s family opposed the death
penalty I have an extraordinarily difficult time envisioning a scenario where
the office would seek the death penalty anyway. By filing a capital notice we
are committing the victim’s family to a multi-decade process. I can’t forsee
committing them to that process if they are opposed to the ultimate
punishment.
Yes.
I’m pleased to have the support of Elliott Ozment, a prominent immigration
attorney, with whom I have discussed the need for training on both sides of
the bar – prosecution and defense – on issues surrounding criminal justice and
immigration. In the vast majority of cases surrounding undocumented
defendants the human penalties of deportation vastly outweigh the criminal
penalties for the charged conduct. We will have extensive training in the office
dealing with the intersection of undocumented defendants and the criminal
justice system to minimize the “unintended consequences” of a criminal
conviction. In most cases, especially when a defendant is charged with a nonviolent offense, deportation or detention is not contemplated by the parties as
a desired result of the conviction. These inadvertent, unplanned consequences
have devastating effects on families and need to be limited where possible by
the District Attorney’s Office.
Most mandatory sentences in Tennessee apply to violent offenses. Rape of a
Child, for example, carries a mandatory 25 year prison term if convicted at
trial. For violent offenders such as murders and child molesters I believe
mandatory sentencing is appropriate. For non-violent offenders I think
mandatory sentencing is problematic and needs to be used extraordinarily
circumspectly by prosecutors. For my thirteen years of practice I have used
prosecutions under the Drug Free School Zone law in cases where individuals
have been trafficking in kilos of cocaine, have 5-6 prior felony convictions or
have verified and proven gang leadership affiliations. I have declined to use
this law in cases with young offenders, those with little to no criminal history
or those charged with small amounts of narcotics. I believe mandatory
sentencing is the cause for the over-incarceration of too many citizens and I am
committed to stopping it. I think the DFSZ law needs to be practiced more
circumspectly by District Attorney’s Offices statewide. My policy will be that
before an A.D.A. prosecutes a DFSZ case they will have to meet with me to
convince me why such a stiff sentences is appropriate for this defendant. The
criteria I will use will include 1.) the evidence of the conduct 2.) the age and
prior criminal history of the defendant (if any) 3.) the presence or absence of
any felony convictions in the defendant’s record 4.) the amount and type of
narcotic possessed 5. ) whether this was a possession or sale offense 6.) any
mitigation evidence on behalf of the defendant. If I do not feel that the
sentence would be appropriately applied to this defendant then the A.D.A.
would be instructed to proceed with a lesser non-DFSZ offense at trial.
7.) In the last three years, around 25-30 juveniles have been transferred to adult
court. These transfers were sought exclusively in violent crimes such as
murder, child rape and armed robbery. I believe transfer is appropriate
primarily in violent cases where the defendant is over the age of 17. Any case
outside that criteria would have be under an extraordinary set of
circumstances that I cannot forsee occurring. I believe there does need to be an
intermediate sentencing for juveniles who are over the age of 17.
8.) Detention of juveniles should be sought primarily in cases where there is
danger of violence to others. Detention should be a last resort and used in
situations where there as legitimate fear of danger of harm to another
individual. Our response should be to regularly agree to reasonable release
plans involving stable living arrangements, treatment of behavioral, mental
health and/or drug issues and contact with the juvenile justice system to
ensure compliance with those requirements.
9.) Yes. A strong Public Defender’s Office is critical to justice and our shared
liberty.
10.)
Yes. Encouraging more (and more competent) appointed counsel is vital
to justice.
11.)
I think restorative justice is difficult to obtain inside the bounds of the
current judicial system. In my practice I have routinely encouraged victim’s
families to move on outside the justice system and seek their healing outside
the retributive justice it offers. I am open to experiment with restorative justice
programs in Davidson County in cases where it makes sense to attempt it.
12.)
Absolutely. I will institute a program to go with a judge and defense
counsel out to community centers on weekends and perhaps even hold
dockets to encourage more people to take advantage of the expungement law.
13.)
I could not agree to pre-trial diversion to drug court for all persons
charged with drug possession. For instance, a person charged with possession
of 10 kilos of cocaine with the intent to distribute would likely not be an
appropriate candidate for such a program. For those charged with small
amounts of narcotics having the ability to get pre-trial diversion is a common
sense solution that I would implement. I also believe in Drug Court, I have
encouraged sending candidates to Drug Court for over ten years and would
encourage its’ use in the future. I believe in narcotics cases where the
defendant has little to no criminal history our goal should be rehabilitation
and treatment.
14.)
In non-violent cases I would encourage A.D.A.s to agree to bonds that
defendants can make (not just simply an estimation of that number but rather,
setting the bond in working with defense counsel to determine what bond
amount the defendant can actually make) given those defendants have adequate
ties to the community and a reasonable release plan that involved a stable
living environment and potential employment prospects. That said, I’m aware
that even these may be Herculean tasks. As a prosecutor I worked diligently to
make sure that a defendant was not punished because he was poor and to
agree to bond reductions so that a defendant may live and work and take care
of his family while awaiting disposition. I would make it my policy for other
A.D.A.s to show the same human respect.
15.)
Our practice will be that offers must be extended for a reasonable time for
a defendant and his counsel to adequately consider the offer, weigh the pros
and cons and make a decision. I would disdain and correct high-pressure
tactics to obtain dispositions. Regarding motions to suppress my own
philosophy as a prosecutor was to first decide if I felt there was a valid basis
for the motion. If I felt the motion was valid I dismissed the case. If I felt that
the stop or seizure was constitutionally valid but that fair minds could
disagree on that issue I would make an offer understanding that I may lose the
suppression issue. This offer acknowledged my risk in proceeding that the
evidence may be suppressed and the case have to be dismissed (again,
mindful of the fact that I feel that the evidence was constitutionally obtained
because if I do not, the case would already be dismissed). If I was successful
on the suppression motion than the risk of dismissal had diminished and that
may change my view of the relevant facts and law. To me, this process is
reasonable in the context of plea discussions where both sides marshal their
arguments on how potential outcomes impact the potential sentence a
defendant could receive.
16.)
I would want to meet with those who perceive this practice as “common”
to see their evidence, understand their facts and hear them out. That has not
been my experience in my practice. I do believe overcharging is a problem
nationally and would always make sure that the office was charging what was
factually appropriate but not stretching charges to make them fit given facts.
17.)
I would be open to the creation of an integrity unit but I would first like
more evidence that wrongful convictions have been a problem in Davidson
County. I have studied with interest the experiences in the Brooklyn District
Attorney’s Office (profiled in the New York Times) and have, like most, been
horrified at the issues uncovered there. However, I would have to see that this
was a problem in the Davidson County District Attorney’s Office before
dedicating additional resources. I think a better strategy is to always be open
during discovery, have a zero tolerance for prosecutorial misconduct and be
constantly vigilant on these issues. That said, I would always welcome outside
scrutiny of the office and of the cases we have handled.
18.)
I think that we must always be thoughtful in plea negotiations and start
from a realistic vantage point. For example, an individual possessing one gram
of cocaine is technically possessing that narcotic with a statutory presumption
that it is for resale. This, however, defies common sense. While technically
such an offense could carry a minimum of 15 years in prison it would be
wrong to start a negotiation from such a hard edged stand point. I would
actively discourage assistants from arguing for plea bargains from such an
extreme position and would seek to counsel those A.D.A.’s regarding my
overarching policy goals were such kinds of negotiation brought to my
attention.
19.)
I have always been uncomfortable defending pretextual stops and, except
in rare circumstances, have decided not to do so. I think they should be
generally discouraged in the law and by law enforcement.
20.)
I would look to create a Homicide Unit that would be staffed by three
assistants who would be dedicated to prosecuting homicide cases with a
particular emphasis on “cold” cases, multi-co-defendant cases, multiple
murder cases or particularly challenging prosecutions. I believe that the crime
of homicide is the one that most threatens civilization and that we, as a city,
must take it equally seriously. In my nearly thirteen years as a prosecutor I
have dedicated more effort, time and energy in to this cause than any other.
While all the other crimes we face are important and deserve respect it is a fact
that society cannot function if we are allowed to kill each other without
accountability. That’s why I feel so passionate about this issue.
21.)
As I have said before the criminal justice system falls disproportionately
on the poor. Poverty falls disproportionately on people of color. A first step
toward solving this problem is acknowledging this reality. To move beyond
an incarceration based system when it comes to narcotics offenses is critical
towards our shared health as a country. Our emphasis for first time felony
offenders charged with narcotics crimes needs to be effective rehabilitation
and treatment with the potential for record expungement.
22.)
I have offered my plan when it comes to this issue: we must move away
from a traditional prosecution model in this area. Our office should be
partners in helping individuals obtain their drivers licenses in cases where
their license is not suspended or revoked for a vehicular crime like D.U.I. or
Vehicular Assault. My plan is to go into the community – churches and
community centers – on weekends and hold dockets so that working people
can see an attorney and a judge to try and get whatever fines and costs waived
in an effort to get people their driver’s licenses back.
23.)
For the past nearly seven years I handled all the mental health related
cases in the criminal court where I was the D.A.’s Office supervisor. I handled
civil commitments, insanity dispositions and signed orders for mental
evaluations. While I am certainly not an expert in mental illness I have the
most experience of anyone in this race in dealing with how mental illness
intersects with the criminal justice system. For me the matter boils down to
speed: how quickly can get a person with a diagnosed severe mental illness
out of the jail system and into a stable environment (even hospitalization if
necessary) with medication and supervision? I have worked extensively with
Jeff Blum in the Sheriff’s Office and Maynette McMichael in the Public
Defenders’ Office on these issues to try and handle these cases as
expeditiously as possible. My policy would be to handle mental health related
cases as expeditiously as possible with an eye towards release from custody in
cases where there was no danger to the community (or danger that the
accused would hurt himself). For me, treating mental illness within the
criminal justice system is a major gap currently with many of the defendants
suffering from persistent mental illness. Folding in mental health components
to release plans (either on bond or in alternative sentencing) needs to be our
watch word.
24.)
Yes. Also I think there is a true need to hold post-incarceration housing
services accountable if they receive state funding. There was a recent editorial
in the New York Times regarding recidivism in halfway houses in
Pennsylvania. In some halfway houses – all of which were funded in some
manner with state dollars –the supervision was so poor that recidivism rates
were higher than if the defendant had just been released outright with no
other supervision. Once an individual leaves custody society has an interest in
promoting his ability to work, to interact and to participate in civic life. I
support the restoration of voting rights for felons, and a loosening of
restrictions on convicted felons receiving federal aid in housing an educational
loans. As District Attorney I would also personally encourage local CEO’s to
commit to hiring a certain number (proportional to the size of their company)
of ex-offenders. I think that if the D.A. meets with a CEO and encourages that
individual to hire more ex-offenders it will have a maximum lobbying effect
on that CEO.
25.)
I think civil forfeiture is appropriate in cases where there are clear and
direct links between the money earned in illegal activity and the property
obtained by that money. In cases where a narcotics trafficker uses a stream of
cash to purchase vehicles, equipment or other property and these purchases
are traceable in time, location and overall proximity to illegal activity then
forfeiture makes sense. There is a great potential for the forfeiture process to
be abused or used cavalierly against the family members of accused
individuals. However, we also know that narcotics traffickers use friends and
family to purchase vehicles or property with cash so as to hide their direct
involvement. While the evidentiary standard in a forfeiture case is lower I
would promote a policy of seeking forfeiture in those cases where there are
direct and identifiable links between illegally obtained profits and purchases
made with those profits. I would have a higher scrutiny when forfeiture was
used against family members of an indicted defendant in order to make sure
that the forfeiture process was not being abused to harass or intimidate a
defendant or his family. The forfeiture laws are design to prevent criminals
from being enriched by their criminal activities – and that is what they should
be used for – not to subject innocent family members to civil penalty for their
association with a criminal defendant.