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Gideonís Heroes

Honoring Those Who Do Justice To Gideonís Promise


ďWhether it's public defender clients or U.S. military commanders in the field, his job is to make sure that the rules of engagement are adhered to.Ē

Ė Tennessee District Public Defender Conference Director Andy Hardin, describing Roger Nell, the District Public Defender in Clarksville, Tennessee, an Army reservist currently on active duty in Iraq

THE PROBLEM: Tonya Jones, a 40-year-old white woman, was charged with forgery, for taking a friend’s check and faking her signature. She had done it before too, and was facing serious jail time.

The Clarksville, Tennessee, public defender office, where her case was assigned, had an office manager who did a pretty good job finding treatment programs for clients with a substance abuse or mental health problem. But Tonya was “dual diagnosed” with both problems at once – a heavy drug problem, plus unmedicated bipolar depression. She couldn’t hold a job, and had lost her daughter to foster care. The office manager had no experience with this complicated mix of issues, and Tonya seemed destined for jail – again and again.

Chief Public Defender Roger Nell knew that his constitutional responsibility to clients meant that his office should have the capacity to better represent clients with complicated needs like Tonya. But his staff was pushed to the limit. Caseloads had increased three-and-a-half fold over the past decade, during which time the state legislature had not funded a single new public defender staff position. And he wanted his office manager to be working full-time making the office run as efficiently as possible.

THE SOLUTION: Nell knew that if clients like Tonya could get help, the community would benefit through less crime, taxpayers would benefit from not having to pay for Tonya’s incarceration, and the criminal justice system would benefit from not having to process an endless stream of charges against her in the future.

Though Tennessee’s indigent defense system is mostly state funded, and no added state funding was forthcoming, counties have the authority to chip in by assessing fines on convicted offenders which can be earmarked specifically for the local public defender. So Nell went to work on the county commissioners, testifying and meeting with each one individually, and lining up support from judges, the private bar, and the district attorney. He briefed the commissioners on an innovative “joint weighted caseload study” conducted at the state level – a model for the nation, examined twice at conferences convened by the U.S. Department of Justice – which had measured the combined needs of public defense, prosecution and the courts, and showed that Nell’s office needed twice the staff. Knowing that the county commissioners were struggling with a jail overcrowding crisis, he told them about the cost-savings, and explained how the public defender is the “gateway” for reviewing defendant’s situations and finding alternative ways of sanctioning them.

Ultimately, the commissioners approved a $12 court fee on all convicted offenders – enough to fund one new attorney, a part-time secretary, and the office’s first social worker ever.

Nell also took every opportunity to demand necessary additional resources from judges for expenses like experts and investigators in complex and lengthy cases – risking contempt of court for not proceeding with cases when judges ordered him to. His refusal to accept cases that his office could not competently handle resulted in dozens of indigent cases being referred to the private bar for appointment.

One beneficiary of Nell’s persistence was Tonya. The office’s new social worker found her a 12-step program in Nashville, and arranged for psychiatric treatment and a regimen of medications, properly supervised. Tonya finished the treatment program and continued in an aftercare program, and is taking her medications. She is working at a landscaping job and paying her bills. And, she re-established a relationship with her daughter.

THE HERO: Growing up in Iowa, Roger Nell had no idea of becoming a public defender. His father’s long military service, including deployment in Vietnam, Korea and Thailand for the first six years of Roger’s life, drew him toward a military career. On a ROTC college scholarship, he grew fascinated with history and constitutional law, and continued on to Drake Law School. Through service as an active-duty JAG officer for six years after graduation, and three more years in the Tennessee Attorney General’s civil division, he developed a passion for constitutional rights, and a belief that the system can work well and fairly only when everyone plays by the rules.

When the public defender in Clarksville became a judge in 2000, the governor appointed Nell to take the job, and he was easily elected to the position in 2002 (Tennessee and Florida are the only two states in the nation which use election as the primary method of selecting public defenders.) And he kept serving in the Army reserves, as a major with the 1st Brigade of the Army’s 101st Airborne Division, based in Nashville.

He was called to active duty at the start of the U.S. involvement in Iraq, and moved close to the front lines to replace the 1st Brigade’s legal officer who was wounded in a “fragging” attack by a disturbed U.S. soldier against a tent full of officers. His job is to advise the Brigade on following the rules of war – like treatment of POWs under the Geneva Convention, the Army’s own rules of engagement for how and against whom force can be used, how to handle situations like Iraqi soldiers in civilian clothing, and now that active hostilities have faded, issues like looting and documenting war crimes.

The 37-year-old Nell and his wife Rhonda have one daughter, in kindergarten. In his spare time, he enjoys fishing and woodworking.

THE OFFICE: Nell’s public defender office covers Montgomery and Robertson Counties, and has a staff of 11. He is only the second chief public defender since the office’s creation in 1989. His deputy, Russ Church, describes Nell as “very proactive about raising public consciousness about the system’s needs,” and determined to convince people that “the only way to make our quality better is by making quantity less.”

CHALLENGES REMAIN... Despite Nellís persistence, funding and staffing remain below levels dictated by national standards, such as the American Bar Associationís Ten Principles of a Public Defense Delivery System. The recommendations of the statewide joint weighted caseload study have never been implemented by the legislature, though they have garnered national attention and efforts at replication. Caseloads and resources are two of the most fundamental of the ABAís Principles, which are regarded as the most basic building blocks for achieving Gideonís promise.

“Despite progress in many jurisdictions,” declared a U.S. Department of Justice report issued in 2000, “indigent defense in the United States today is in a chronic state of crisis.” High caseloads and miserly funding have resulted in “legal representation of such low quality as to amount to no representation at all, delays, overturned convictions, and convictions of the innocent.”

GIDEON'S PROMISE: Still unfulfilled.

Read about the January Gideon's Hero, Natasha Lapiner-Giresi.
Read about the February Gideon's Hero Rodney Ellis.
Read about the March Gideon's Hero The Georgia Chief Justice's Commission on Indigent Defense