Hamilton Herald Masthead Attorneys Insurance Mutual of the South

Editorial


Front Page - Friday, April 28, 2017

Smith’s plan paying dividends


Public defender uses creative staffing, lower courts to increase efficiency



Steve Smith found religion while rolling across a stretch of open Idaho highway on a Ducati Multistrada, his 12-year-old daughter clinging to his back. It was the kind of faith for which every criminal lawyer searches – a belief that the world is a good place in which people sometimes do bad things.

As a prosecutor working under District Attorney General Bill Cox, Smith had dealt with his share of the bad things and many of the worst. But on his three-week quest last year to motorbike from Chattanooga to Seattle and back, he and his daughter Clara experienced the flip side of people.

Their journey was fueled by the magic of the road rather than restaurant meals and cozy nights in hotels. They prepared most of their own food, pulled under overpasses when it rained and slept under the stars.

Even though the bike was new, somewhere in Idaho, Smith saw that the steel belt on the rear tire was exposed. Being in the proverbial middle of nowhere with spotty cell phone coverage, their only recourse was to cut down their speed and try to make it to a city in which Smith’s wife, Mary, had found a motorcycle shop online.

The courageous pair was rolling into a tiny town, still far from their destination, when the tire blew.

As Smith was plotting their next move at an abandoned gas station, a man pulled up and asked if he could help. Luckily, he knew of a motorcycle shop in a town closer than the one Mary had found. The only downside: it was Sunday, so the shop was closed.

Smith and his daughter had stopped across the street from a welding shop. In another fortunate turn of events, the owner possessed a flatbed truck as well as the willingness to take the stranded travelers to their destination.

Smith and Clara were already more fortunate than they had hoped to be, but their luck was far from spent. Instead of having to rough it off road until the shop opened on Monday, someone had called in a reservation for them to pitch their tent at a campground near the shop and within walking distance of a pizza joint.

What had started as an obstacle had turned into an evening of Steve and his daughter enjoying quality time together as they watched the Idaho sky drape itself in an ever-shifting array of colors as night fell.

Their adventure reminded Smith that the world is a generally good place.

“Criminal lawyers see the worst of the worst. But that’s just a fraction of humanity. You don’t have to be afraid of people,” Smith says.

Making changes

This is no small statement coming from a man who has spent most of his career prosecuting and defending criminals. But instead of allowing the never-receding tide of inhumanity to change him, he’s spent his time transforming others.

Since being elected as Hamilton County’s public defender in August 2014, Smith, the 44-year-old also has overhauled the culture of his office.

Smith is sitting at his desk, a piecemeal construct consisting of a quartzite countertop supported at either end by two black metallic filing cabinets. Dozens of casebooks fill the space between the cabinets.

While Smith’s office has enough money to buy him a new desk, he’d rather spend every available penny on staff salaries. Besides, there’s a certain poetic justice to assigning the thick tomes to hard labor.

From Smith’s vantage point on the third floor of the Tivoli Center, he can see his neighbors on the other side of Broad Street. His staff, including the 16 attorneys who serve under him, are scattered across the rest of the floor.

Smith is not nearly as hard on his attorneys as he is on his old casebooks. Since assuming leadership of the office, he’s conceived and implemented changes that have made life easier for the county’s assistant public defenders. The first was switching to a new system of assigning cases.

The previous public defender used a horizontal system in which lawyers were assigned to a specific court. As a defendant made his or her way through the system, the lawyer at each level would grab the baton from the attorney who occupied the lower court and move the case forward. The idea behind the horizontal system is that it allows a public defender’s office to handle more cases.

But there were advantages and disadvantages to this system, says attorney Steve Brown, who has worked for the public defender’s office since 2003.

“I was assigned to Division II – Judge Rebecca Stern’s courtroom. Every day, I knew where I was going; that was my court and I stayed there,” Brown explains. “But I never experienced practicing in the other courts.”

Smith wanted to manage the public defender’s office like a traditional law firm, so he switched to a vertical system in which a single attorney works with a defendant throughout the life of his or her case.

In addition, Smith formed three teams of attorneys, each led by an experienced lawyer.

The vertical system allows assistant public defenders who were once relegated to General Sessions Court to try cases involving more serious crimes such as aggravated robbery and murder. It also enables these attorneys to develop more traditional relationships with their defendants.

“My clients know I’m their lawyer; they’re not surprised when someone they don’t know shows up to interview them. That makes them more comfortable,” Brown adds. “Also, I know more about their case because we’ve been with it from the beginning. That’s a huge advantage.”

The vertical system also eliminated the duplicate work being done at the Criminal Court level to bring attorneys up to speed with a case.

To further alleviate the pressure the horizontal system placed on the Criminal Courts, Smith instructed his attorneys to put more effort into resolving cases in General Sessions Court.

“When I was a prosecutor, there were two assistant public defenders assigned to General Sessions Court. They were overworked,” Smith points out. “They did the best they could to stay afloat, but a lot of cases were sent to Criminal Court that could have been resolved at the lower level.”

Brown says Smith’s focus on resolving more cases in the lower courts has changed the outlook of the public defender’s office.

“We used to think we didn’t have the time to handle certain cases in General Sessions Court, so we’d send them up to Criminal Court,” Brown adds. “That mindset is gone. Instead of sitting in Criminal Court waiting for cases to make their way up, we’re going into the lower courts and resolving cases there, which keeps them from clogging up Criminal Court.”

Criminal Court Judge Barry Steelman says Smith’s use of a vertical system has resulted in better service to the accused.

“Cases are spending less time on the docket, matters are being resolved in a more efficient manner and some jails stays are shorter, which is cheaper for tax payers,” Steelman says. “Steve is doing an excellent job.”

To increase the efficiency of his office even more, Smith pulled off one additional maneuver: he hired additional attorneys, giving the office a total of 16 assistant PDs. While this sounds like a simple solution, bureaucracies are not built to make things easy. However, they are designed to budge when someone knows how to work the system.

“The State of Tennessee tells us how many lawyers and investigators we can have. But we can take an investigator position and ask the [Tennessee District Public Defenders] Conference to turn it into an attorney position. Then we can use that money to hire a lawyer instead of an investigator,” Smith explains.

“We needed that. I took all three investigator positions and asked the conference to allow me to hire lawyers. After they approved my request, I hired my three investigators as support staff using my county budget.”

It sounds complicated, but Smith is known for being an effective problem solver. Because of his resourcefulness, his attorneys have gone from an average case load of 100 to about 70.

These changes have all but transformed the public defender’s office.

“The number of people who have asked us to withdraw from their cases has gone down dramatically, so I believe we’re doing a good job,” Smith says. “When you approach a problem with fresh eyes, you get a different result.”

The public defender’s office also seems to be benefitting from a bump in staff morale. Brown attributes this to Smith’s management style as much as the changes he’s made.

“Steve doesn’t micromanage us,” Brown says. “He allows us to make our own decisions and then he supports those decisions.”

Case in point: Brown recently withdrew from a high-profile murder case due to ethical considerations. Before stepping down, he approached Smith for his thoughts on what to do.

“Steve didn’t tell me what to do; he told me to make a decision as a trial attorney and the office would support me,” Brown adds. “It feels good to know someone has your back.”

‘I liked science’

A Chattanooga native, Smith appears to have been born to two angels masquerading as a carpenter and a cook. In addition to his cherubic good looks, topped by short waves of unruly dark hair, Smith stands six feet above terra firma. This places him a little higher than many of the people he finds himself near.

In truth, Smith was born to human parents and raised in a world as far removed from the law as the east is from the west.

After graduating from Red Bank High School, Smith earned a degree in geology from the University of Tennessee at Chattanooga. He then went to work as a geologist with the General Physics Corporation (now GP Strategies).

“I liked science. I also liked being outdoors,” Smith says. “Geologists work in the field and go to strange places no one has heard of, and that’s what I wanted to do.”

That said, Smith’s first and only job as a geologist didn’t live up to his vision. Instead of sending him to find minerals in Alaska or study the fault line along the Tibetan Plateau, General Physics put him to work testing ground water and soil samples near underground gasoline storage tanks in Tennessee.

It might not have been glamorous, but it was work, and as a recent college graduate with a wife to boot, Smith was glad to have it. However, the daily commute to Tullahoma and back was long – 90 minutes each way – and he was concerned about losing his job once there were no more tanks to test.

So, Smith began to mull over his options. “I thought about going to business school, but Mary suggested law school,” Smith adds.

Although Smith had never considered becoming a lawyer, he could see himself working in environmental law or becoming a real estate attorney, so he took the LSAT and began applying to schools.

Smith wound up at the Cecil C. Humpreys School of Law at the University of Memphis, where he graduated with a Juris Doctor degree in 2001.

Learning the ropes

Insurance defense firm Leitner, Williams, Dooley and Napolitan hired Smith out of law school and let him cut his teeth on workers’ compensation cases and car wrecks.

“I was struck by the seriousness of the work,” Smith says. “I was representing people who had been injured or whose livelihoods were at stake.”

Working at Leitner gave Smith a sink-or-swim mentality regarding the law. It also planted the seeds of the changes he would bring about at the public defender’s office years later.

“I’ve brought a large firm mentality to an area where there are few large firms. Most criminal defense firms consist of three or four attorneys who hang a shingle outside,” Smith points out. “But I manage this office like it’s a large law firm. That’s a result of my time at Leitner.”

Although Smith found a groove at Leitner, he only connected with his work on a superficial level. That changed after he started a two-man practice with a friend from law school, current Hamilton County Juvenile Court Judge Rob Philyaw.

“We decided working for big firms wasn’t for us; if we were going to work all the time, we wanted to work for ourselves,” Smith says. “So we opened an office on Signal Mountain in 2004.”

Smith got his first taste of criminal work while practicing with Philyaw. Like many new attorneys, he wet his feet handling shoplifting, reckless driving and other minor cases in Juvenile and General Sessions Courts. After Smith had learned his chops, judges started giving him weightier cases, such as those involving aggravated assault.

Smith’s first trial in Criminal Court involved the most serious charge he’d ever defended: first-degree murder. The defendant in the case faced up to 51 years in prison before becoming eligible for parole, but Smith and Philyaw mitigated the charges, and the jury came back with a verdict of voluntary manslaughter.

“That was the point at which Rob and I knew we could do criminal work,” Smith recalls.

The murder trial also marked the moment Smith made a deeper connection with the law. “I finally felt like an attorney,” Smith says. “I had given someone something of value in exchange for the money he had given me. I knew I had found my calling. I knew I would spend my life doing criminal work.”

While preparing for the trial, Smith demonstrated an ability for coming up with unique solutions to problems. Philyaw remembers one occasion when his partner surprised him by thinking outside the box.

“Steve filed a motion to have our defendant transported from the jail to the scene of the crime to walk us through the events surrounding the incident,” Philyaw recounts. “Despite my lackluster confidence in the motion, the following week, we were walking our client around the crime scene in bullet-proof vests, surrounded by armed escorts.”

As the first day of the trial neared, Smith and Philyaw had all but exhausted their efforts to prepare when they realized it had been a long time since either of them had fired a shotgun. The alleged murder weapon was a shotgun, so to be able to relate better to the jury, the two friends went out one evening and shot through several boxes of shells.

“It probably helped us with the jury and definitely helped us in other ways,” Philyaw says.

Other people noticed Smith’s abilities as well, including Cox, and in 2006, the district attorney invited him to work for him. Smith liked the idea of being devoted to criminal work, so he said yes.

“I wanted to be a part of the world of witnesses, victims and trials,” Smith adds. “There’s a difference between the civil and criminal bars. I felt more at ease with the latter group.”

Working as a prosecutor opened Smith’s eyes to the workings of the legal system as a whole.

“As a defense lawyer, I saw the perspective of my client. But as a prosecutor, I no longer had the pressure to collect money, advertise my services and manage an office. I was a lawyer in court 100 percent of the time,” Smith says.

“I gained more experience during the first few months of working at the DA’s office than a lifetime of private practice would have given me,” Smith continues. “I was handling 50 cases a day and going up against the best lawyers in town. I saw how Hank Hill and Jerry Summers presented a case.”

Smith took a few knocks from these attorneys on his way to becoming an effective prosecutor. In particular, he remembers having a hard time swallowing a lesson about the importance of the human element in jury trials while arguing a DUI case against Hill.

“I thought I had a slam dunk case. The defendant had blown an .08 on the breathalyzer test, which is at the threshold of being either intoxicated or impaired. Criminal defense attorneys will say the machine was wrong, knowing there’s a level of confidence in a .12 that a jury won’t have in a .08,” Smith remembers.

“But no matter how right you think you are as a prosecutor, there are other perspectives, and the most important perspective at the end of that day was that of the jurists,” Smith adds. “Hank didn’t focus on the legal aspect of the case – whether the machine should have read .07 or .08 – he played on the emotions of the jury. He convinced them to see the defendant as a good human being.”

In an act of mercy, the jurists acquitted the defendant, telling him they knew he’d made a mistake but that they believed he deserved another chance.

Smith was incensed. “I thought they had a legal duty to pronounce him guilty. In my mind, I’d proven the case – they knew he’d done something wrong. But their decision was based on something bigger than the letter of the law.”

Smith worked as a prosecutor for eight years. As he directed the flow of his cases and learned to tell a story that would convince a jury of a defendant’s guilt beyond a reasonable doubt, he learned the legal aspects of his job “down to the smallest jot and tittle.”

Smith also become comfortable with making his own decisions.

“Bill didn’t keep track of wins and losses; he just wanted us to do what we believed was the right thing,” Smith says. “What I thought was the right thing might be different from what someone else thought was the right thing, but I was the one who had to sleep at night with the decisions I made.”

To nurture the development of a mature legal philosophy in each of his attorneys, Cox gave Smith and the others discretion on how to handle their cases.

Given the weight of the decisions reached in court, this freedom initially frightened Smith. But in time, he became confident in his perspective.

Smith also developed a strong belief in the reliability of the American system of criminal justice.

“It’s not a perfect system. Mistakes are made and there’s an element of uncertainty to it, but having seen it in action from both sides of the courtroom, I believe it works for most people,” Smith explains. “If everyone is doing their job to the best of their ability, you can sleep at night with the results.”

Smith could have continued to grind away as a prosecutor. But when the work coming out of the public defender’s office was not as strong as he believed it should be, he felt compelled to once again switch sides.

Running for office

Smith’s experience with the Hills and Summers of Chattanooga taught him that one of the best measurements of the quality of his work as a prosecutor was his ability to fend off a good defense lawyer who’s poking holes in his case.

“As a prosecutor, you have a world of resources at your fingertips. That can make it hard to step back and look objectively at your work,” Smith explains.

Smith minces his next words, but only slightly.

“When I had a case with the public defender’s office, I wasn’t always sure I was getting the same level of rigor I might get from Hill or Summers, and I started to wonder whether I could rely on the outcome of the process,” Smith continues.

“I thought the best way for me to improve the system was to run for public defender and manage this office differently.”

When Smith decided to seek election as public defender, he took a number of personal and professional risks.

For starters, Smith would be going up against a 24-year incumbent, and he didn’t know the first thing about running a campaign. What’s more, he would also have to place his means of supporting his family on the line, as Cox didn’t want him working for the DA’s office while he was out stumping for votes.

Cox gave Smith the option of taking a leave of absence. But Smith decided he would work harder to be elected if he didn’t have a job on which he could fall back, so he cashed in his 401K and took the leap.

“I drew on the lesson I had learned at Leitner about throwing yourself into your work and hoping for the best,” Smith adds. “I had a job to do, so I went and did it.

Smith began campaigning in May. When the election rolled around in September, he won by a considerable margin.

After Smith took command of the public defender’s office, he wasted no time before rearranging the furniture. He knew the mettle of each assistant public defender, and as part of his reorganization effort, he let one-third of them go. He then finished putting together his A-team.

“There was a lot of talent out there that wasn’t being brought to bear here,” he says.

Thorny legislative issues

Since fine-tuning his staff and completing his overhaul, Smith has settled into his other duties as public defender. Chief among these is dealing with the legislative aspects of the job.

Each year, the state legislature proposes bills that affect the criminal justice system. Bills are also proposed by the District Attorney’s Conference. As a matter of procedure, Tennessee’s Public Defenders Conference asks its 31 public defenders to give the legislation a once-over as well.

This has proven to be a time-consuming task for Smith, who makes frequent trips to Nashville and is on a first-name basis with many legislators.

The legislature also reconsiders current laws, which eats up a good chunk of Smith’s schedule as well. One statute that has been hanging in the balance requires the county to give him the money he needs to pay for his extra attorneys.

“The state gives its counties a certain amount of money to hire prosecutors. But some counties with urban areas have more crime than they can handle on that budget, so they want the state to give them more money,” Smith says. “While that would expand the capacity of the prosecutor’s office, there has to be defense lawyers to handle those cases.”

The legislature, however, has said a tax payer living in a rural area like Tipton County should not be required to pay for a criminal defense lawyer in an urban area like Chattanooga. So, if a district attorney receives money from his or her county, the state requires the county to give two-thirds of that amount to the public defender’s office.

In 2016, prosecutors tried to repeal the two-thirds statute. Doing so would have been disastrous for public defenders, Smith says.

“We wouldn’t be able to function without the money the county provides, so we worked hard to persuade legislators that repealing the two-thirds statute would not be a good idea,” Smith says.

The prosecutors’ proposal failed to pass in 2016. However, this year, District Attorney Neal Pinkston asked legislators to exempt Hamilton County from the two-thirds requirement. Smith says Pinkston’s proposal has been placed in summer study, which assures the issue is closed for 2017.

The combination of legal, administrative and legislative work that comes with being the public defender is nothing like the jobs Smith held before. But he’s embraced the differences, even though he misses being in court.

“My role now is to coach the younger attorneys so they have the experiences I had,” Smith says. “It’s my job to make sure the 16 lawyers that work here have the training and oversight that allows them to become good attorneys.”

Home and family

Smith’s home life requires a different set of skills, but he seems up to the task.

He and his wife have been married for 20 years and are the proud parents of four children: Emma, 15; Clara, who’s now 13; and twins Willa and Duncan, who are 10.

While Mary was at home when their children were young, she’s now working as a registered nurse at Erlanger. This means her husband must take on more of duties of running a house, such as cooking meals and transporting the children to and from school.

“Fridays are hard on the kids because mom provides more services than I do. I get them to where they need to go but that’s it,” Smith says, laughing.

Everyone loves to travel, but with both parents working, there’s less time for family trips. To make up the difference, Smith has been taking one-on-one trips with his kids. In addition to his 5,000-mile outing with Clara, he’s taken Emma on a motorcycle excursion into Texas.

Smith says he wants each of his children to feel like they’re important to him individually. “I don’t want them to feel like they’re part of a package; I want them to have a personal relationship with me,” he adds. “The trip Emma and I took to Texas was the only time we’ve been alone.”

The twins are already planning their trips with dad: Willa wants to go to California and Duncan wants to visit baseball stadiums.

‘A good line of work’

Although Smith’s days as a geologist are long over, a bit of the profession’s blood still flows through his veins. On the large swath of wall behind his desk, Smith has created a patchwork of maps that together depict Great Smoky Mountains National Park.

Here and there on the sprawling map, squiggly red lines snake their way through topographical representations of forest, rivers and peaks. These are portions of the park’s trails Smith has hiked.

“I walked some of those trails with my kids and some with guys from the DA’s office,” he says. “In fact, I decided to run for public defender while sitting around a campfire with other prosecutors. We were bemoaning the state of the public defender’s office when I first thought I might be the person for the job.”

Smith will be able to keep his job until 2022, when the voters of Hamilton County will decide whether to retain him. He’ll be working hard to convince them he’s worth keeping around.

“My dad was a carpenter, so I could have been a carpenter, and my mom was a cook, so I could have been a cook. But I fell into this line of work and I like it,” he says.

Judge Philyaw agrees that his former partner and long-time friend is well suited to criminal work, wherever it takes him. “Steve thrives on helping the underprivileged, appropriately questioning authority and protecting Constitutional rights,” the judge says. “He’s in his element and we’re all benefiting from his service.”

Whether Smith becomes a career public defender or fate intervenes and guides him elsewhere, he’ll continue to cling to the religion he found on an Idaho highway as tightly as Clara clung to him on the back of his Ducati Multistrada.

If Smith ever loses the purer faith, perhaps fate will step in to remind him of the difference he’s made in countless lives, as it did the day he was gassing up at a Chattanooga station.

“One day, a lady approached me at a gas station and asked me who I was. I thought she might be the mother of someone I had sent to prison, but she just wanted to thank me for giving her the motivation she needed to better her life,” Smith recalls.

As the prosecutor on the woman’s case, Smith had told her she wasn’t going to walk out the front door the next time she came to court.

The woman heeded Smith’s warning. She entered rehab, kicked her drug habit and went from being unable to tie her shoes to driving, working and taking care of her children.

“I didn’t know her from Eve because she was just one of 50 cases I handled that day, but she remembered me because that was an important day in her life,” Smith says. “That was one of those moments when I realized this is a good line of work.”