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Navigating the Rutherford County Criminal Justice System: Part 12 – Violation of Probation and Public Defenders

VOP cases
Diving further into Rutherford County court proceedings and trends, according to the dockets, from October 2011 through October 2012 Judge McFarlin hosted Violation of Probation Friday every week that had an average two-page docket while Judge Loughry handled a collection of VOP cases on his 8 a.m. docket on Mondays. Judge Loughry’s Monday VOP dockets could fluctuate between a half-page and three pages during this time. There are no General Session criminal court dockets between May 21 and Sept. 25, 2012. This trend continued until March of 2013 when Judge Loughry’s VOP cases seen on Mondays became scattered among other various charges occurring in Rutherford County, creating mild or heavy VOP days scattered equally among all-charges-encompassed dockets until he left the bench at the end of August 2014.

Judge McFarlin’s VOP Friday averages never relented as General Session Criminal Court was in session, though. The summer of 2013 saw a spike in cases on VOP Fridays, getting up to a two-and-a-half-page average before the numbers came back down to the 2012 average. There are no Friday dockets between mid-October 2013 to the end of January 2014. VOP Fridays would resurface at times throughout 2014 until May 2015. Judge Tidwell began replacing Judge Loughry in October 2014, and once the replacement was permanent, both Judges Tidwell and McFarlin began daily appearances once again in May 2015 and McFarlin’s VOP Fridays resumed. Judge Tidwell’s VOP catch-up Mondays were usually a page to a page and a half of VOP cases among an all-charges-encompassed docket.

Judge McFarlin made his infamous, “Money makes the world go ’round,” comment to Chief U.S. District Judge Kevin H. Sharp on Nov. 6, 2015, while testifying before a federal court in Nashville about Rutherford County probation issues such as indigent probationers being jailed for non-payment. Sharp eventually released 13 of those inmates held in 940 in December 2015. VOP Friday dockets had just come off of a high summer average before General Sessions took a break on Fridays until January 2016.

McFarlin still hosts VOP Fridays, but the docket case total is dropping to around a one-and-a-half-page total of VOPs and is sometimes lumped in with his domestic assault docket or a normal, all-charges-encompassed docket.

General Sessions Criminal Court handles VOP cases a little differently than other cases running through the court.

At the judicial building on the square, a defendant will show up for a VOP charge in their presiding judge’s courtroom at either 8 a.m. or 9 a.m., sign an attendance sheet next to the judge’s bench, and head down to the probation building at 309 W. Main St. for a drug screen that costs $12 every time.

Taking a drug screen at the ex-PCC building can take anywhere from 20 minutes to an hour, Fridays being the busier days. While PCC had their drug screens sent to Alere Toxicology Services, Inc. in Richmond, Va., for analysis, its replacement county-run probation, Rutherford County Department of Probation and Recovery Services, now screens onsite in a couple of minutes with new urine sample cups sent to RCDPRS from the county’s drug court when RCDPRS began on April 1, 2016, according to Philip Hodges, an RCDPRS clerk who monitored the drug screening process. The cups test a fresh urine sample for 13 of the most widely-used drugs, including alcohol. Hodges fills out the results sheet right there in the bathroom and the defendant is released to take the initialed results sheet that states, “I understand that if I do not return to court, the judge could order me to serve my entire sentence,” directly to the D.A.’s office in room 106 in the judicial building and wait their turn to hear a plea deal from an Assistant D.A.

Room 106 is actually a long entrance hallway for one of the old, closed entrances to the judicial building’s east side that’s shared between the D.A.’s office and the lawyers from the Public Defender’s office, who are five or six strong. The assistant D.A.s occupy a corner of the ramshackle room, calling defendant’s names from their fort made of cubicle walls while most of the Public Defenders are jammed into two of the three offices on the other side of 106, no more than 20 feet across the ragged, blueish carpet, yelling their own docket of names into the room, too. Mismatched and tattered flat-cushion chairs placed along the small amount of wall space that isn’t taken up by door frames or state employees’ pathways have the butts torn out of them from wear (much like I felt having got this far into the criminal justice system). During my VOP cases in the summer of 2016, these chairs seated defendants vocal in their rejoicing consensus that PCC is gone.

“It’s a fucking travesty to America,” an unnamed county clerk candidly stated when asked about the deal with that room.

Reporting from the county’s probation building to Room 106 for the first time on May 16, 2016, Assistant D.A. Sheila Freeze called me to the D.A.’s corner and told me the State of Tennessee would agree to 30 days in jail, and the completion of my probationary period through RCDPRS, after resetting the probationary period back to 11 months and 29 days. Court costs, fines and supervision costs would be paid through the probation department.

This is the point at which I had to ask Sheila Freeze if a public defender attorney was an option after she declared the D.A.’s initial 30-day imprisonment deal. She handed me a “Uniform Affidavit of Indigency,” to apply for representation by a public defender for the VOP of the DUI/Implied Consent case.

The Uniform Affidavit of Indigency determines the monetary worth of a person. Part one asks yes-or-no and fill-in-the-blank questions such as “Are you working?” followed by “My pay is______,” “Do you receive government assistance or pensions?” “Do you own property (house, car, etc.)?” and “What is the value [of the property owned]?” “Are you or family going to post bond [and] are you or family going to be able to hire a private attorney?” “Have you tried to hire an attorney? If so, who?_____” and “Are you now in custody? If so, for how long?” are thrown in there, too.

Part two gets into fine details of part one’s questions, asking to list the defendant’s children’s names as sources and of the income of those sources they could give the defendant “including all wages, interests, gifts, AFDC, SSI, Social Security, retirement, disability, pension, unemployment, alimony, worker’s comp., etc.” along with the dollar total amount value of all that. It also asks for all money available to the defendant through cash, debts owed to the defendant; the amount of money in their checking and savings accounts; whether they have credit cards; all motor vehicles, real estate and assets owned by the defendant solely or jointly within the last six months or expected to be owned by the defendant in the future; net income from the last income tax return filed by the defendant; and who paid the bond to get the defendant out of jail for the particular case for which they are needing a public defender. Penalty of perjury is attached to the affidavit. If found to be dishonest while filling this out, the penalty is a fine up to $2,500, as the affidavit states.

Afterwards, in the courtroom, Judge Tidwell officially established I could be represented by a Public Defender and begin to pay the $200 Public Defender cost through a new payment plan set up in the Circuit Court Clerk’s office on the second floor of the judicial building, with $50 a month installments beginning on the day he set my next court date, when I would be represented by a Public Defender: July 18, 2016.

The court date for violating the probationary terms for my Driving on Suspended License charge (a separate case altogether) was the following Friday, May 20, and went the same way as that Monday’s until I spoke with Sheila Freeze in the D.A.’s corner.

She called my name to see her in the corner of room 106, looked at me and asked if I had been there earlier in the week, to which I replied yes. She immediately stated “60 days,” meaning 60 days in jail for this case, followed by a replica of the rest of the deal I received for the DUI/Implied Consent earlier that week unchanged.

I filled out another Affidavit of Indigency.

Judge McFarlin was late and showing signs of sickness that day. Jake Flatt, Judge McFarlin’s Deputy Judge’s Assistant, began resetting cases himself when Judge Tidwell came over after calling his own DUI-day docket to cover some of McFarlin’s VOP-day docket. McFarlin arrived and Tidwell got back to calling the nine-page Tennessee Highway Patrol citations docket left back in his courtroom. There were 728 cases seen that day in General Sessions Criminal. My first court date for a Public Intoxication charge back on January 8, 2008, which gained such media attention for overcrowding the judicial building, had 530 cases, according to reports.

Appearing before Judge Ben Hall McFarlin is a little different than appearing before Tidwell or Loughry. McFarlin reviewed Affidavits of Indigency like Tidwell, but added a series of questions to establish what kind of life and prospects a defendant had in addition to their court case, seemingly to establish a qualitative aspect of the defendant on top of the monetarily quantitative aspect needed by the court. He did this on the first Driving on Suspended License charge court date on Jan. 31, 2014, as well.

The questions asked pertained to living situations and if a defendant pays their own bills and whose name the bills are in, how their job is going and if it is full-time work, and if they have anything else going on in their lives besides the court case such as responsibilities for anything or anyone else.

A defendant before me stated to Judge McFarlin he was going to sell his car soon, to which McFarlin stated, in his opinion, that defendant shouldn’t have to sell his car in order to get through his case. The defendant corrected him stating it was something he did on the side. He “flips cars.” Judge McFarlin seemed delighted with his entrepreneurialism and praised him for his efforts before the defendant left the courtroom.

McFarlin called my name, asked his series of questions, to which I answered honestly about my life. He further asked if there were any persons for whom I was responsible, and I answered honestly about that part of my life, as well: “No.”

McFarlin then ruled I could be represented by a Public Defender and begin payments towards the Public Defender cost of $150 for this case, with $50 per month increments paid to the clerk’s office by Sept. 1, 2016. He scheduled my next court date for the Driving on Suspended License charge to June 24, 2016, when I would be represented by a public defender. The Sept. 1 payment deadline he set incorporated the 60-day sentence in 940 or the Workhouse from Assistant D.A. Sheila Freeze’s deal.

Public Defender costs are ultimately added into the court costs collected through the county’s probation department.

The Public Defenders
One of the three Public Defender offices across from the D.A.’s corner in room 106 is slightly larger than a jail cell and acts as the office for at least two Public Defenders at a time on any given weekday morning courts are in session. There were three working on one of my cases in there at one point during the first of my summer court dates as the two VOP cases were shuffled around between these Public Defenders, all sharing a single wooden office desk. Several meetings there eventually combined both of my VOP cases into one concurrent-charges case to be seen by one presiding judge. It was chaotic in their cell-sized office handling monetarily poor clients who waited, sometimes into the afternoon, in the packed waiting room part of room 106, for their names to be called by their attorney. If their names weren’t called for a while, it was not uncommon for the waiting defendants to knock on the Public Defender’s closed office door to see what was going on or ask them a question. I met with a total of four Public Defenders for my cases in that office by the end of those summer court dates, eventually able to tell Judge McFarlin on June 24, 2016, that both my cases would be dealt with simultaneously by Judge Tidwell on the upcoming, second DUI/Implied Consent VOP court date of July 18, 2016.

Outside of Judge McFarlin’s courtroom on June 24, after notifying him of the case concurrence, I asked my fourth Public Defender, J.D. Driver, if the Public Defenders dealt with cases like mine very often, to which she replied “All the time . . . it happens every day.”

The two VOP cases concurrent went before Tidwell on July 18, 2016, where I pleaded guilty to the deal negotiated by the Public Defenders and Assistant D.A. Freeze. Based on that plea deal, Judge Tidwell ordered me to serve seven days at the Workhouse within a month of that court date and have my probationary period “extended for 11 months and 29 days,” and “to pay costs of these proceedings,” as stated on the Violation of Probation Order judgment form. No Public Defender stood by my side that day as Tidwell asked if I was satisfied with my representation. I replied yes, and moved along.

The Bill of Costs breakdown for the concurrent VOP cases is: $64 Clerk Fee, $42 County office fee, $50 Administration fee for the Public Defender, $150 Public Defender cost, $28 continuance fines, $106 DUI/Implied Consent VOP warrant cost, $106 Driving on Suspended License VOP warrant cost, $20 Booking Fee at 940, $130 fine for a positive test result on a drug screen in 2014, and a $5 Archive fee, all according to the General Session clerk’s office, totaling $699.

Since the 2014 cases began, there has been $1025.35 for DUI/Implied Consent plus $496.35 for violating the Implied Consent law, court costs and fines totaling $1,521.70. $690 of that cost was paid through PCC from February through June 2014 where they took about 35% of the $690 ($247) for themselves. The remaining amounts I paid in full on April 14, 2016, through and according to the General Sessions Court clerk’s office in the judicial building and at the circuit court clerks desk at PCC’s replacement, RCDPRS, putting my debt owed to Rutherford County at $0. From April 2016 until the VOP cases were settled on July 18, 2016, I paid RCDPRS $159 for April, May and June supervision fees and two drug screens on the Driving on Suspended License case number and one $12 drug screen on the DUI/Implied Consent case. Then the VOP cases’ $699 total court costs came on July 18, 2016.

Since the cases went through the court concurrent, or together, the lead docket number (the DUI/Implied Consent case) gets all the clerk’s office costs and the other VOP (Driving on Suspended License VOP) just gets the $106 warrant issuance charge from PCC “so you’re not double-dipping,” said a General Sessions clerk when breaking the VOP costs down.

The $106 for the Driving on Suspended License VOP warrant cost was added to that case’s outstanding fees while the remaining $593 was added to the DUI/Implied Consent case. From July 18, 2016, to Nov. 18, 2016, I paid RCDPRS (which was basing its model of operation off of PCC’s business model, according to Melissa Harrell, Rutherford County Clerk in charge of finances at RCDPRS) $796.65 to close all of my debt to Rutherford County again. According to RCDPRS receipts, out of that $796.65, $225 (28%) of it went to RCDPRS supervision fees while the other $571.65 were split between the itemized court costs, as well as new ones by Nov. 18, such as $55 to go towards the Veteran’s Court fund and a $50 Indigent fee (A “being poor” fee).

Calculating RCDPRS costs together since I began reporting to them when they first took over for PCC in April 2016 and had a $0 debt to the county, I paid them $955.65 through November 2016, $384 (40.2%) of which was taken for RCDPRS supervision costs and fees.

All in all, it cost $3,355.55 for 11 mornings in court to ultimately plead guilty to one concurrent-VOP-charges-from-2014 case in 2016.

2016 was a marathon year for the judges compared to other years in the dockets posted. Docket numbers are an average of 275 cases a day and it is not surprising to see a docket reach upwards of 350 to 400 cases every once in a while. The county is currently locked in an age of DUI, drug-related, and suspended/revoked license charges among the consistent domestic violence and shared violation of probation days between Judges Tidwell and McFarlin.

Dockets previous to October 2011 are available in hard-copy format at the Circuit Court Clerk’s office for 15 cents a page, or may have been destroyed, according to Mary, a General Sessions Court Clerk.

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