Calvin Mitchell, a local man accused of carrying out a fatal shooting in Whitehaven in June, is currently represented by the Shelby County Public Defender’s Office. But whether that stays the case remains to be seen. 

The office is struggling to handle first-degree murder cases, according to an email sent out to Shelby County General Sessions Criminal Court judges in July and a recent filing in Mitchell’s case.

Attorney Jennifer Case, who leads the public defender’s Major Cases Team, asked in an Oct. 25 filing to withdraw from representing Mitchell due to staff shortages and an excessive workload.

Where are cases going in Shelby County? Wherever it is, they’re not getting there fast.

The filing followed a previous email from Chief Public Defender Phyllis Aluko that asked all of the Shelby County General Sessions Criminal Court judges to stop appointing her office on first-degree murder cases.

The Major Cases Team, or MCT, is solely tasked with handling first-degree murder cases for the public defender, including those where prosecutors are seeking a sentence of life without parole or the death penalty. Most cases, including first-degree murders, start in Shelby County General Sessions Criminal Court.

Judges typically only appoint private attorneys in place of public defenders if there is a conflict of interest. Case argued in the filing that they also could do so if adding a client to a public defender’s workload would essentially cause them to receive ineffective representation. 

Some judges disagree, however, and have appointed the office anyway, leaving the two parties at odds over how to continue. 

Understaffing

MCT was handling 40 first-degree murder cases as of Oct. 25, according to the filing. 

Currently, the team only has two attorneys, including Case, who also acts as its supervisor. MCT also consists of a legal investigator and a mitigation specialist, who consults on and assists with capital cases.

The filing details that three attorneys assigned to the MCT have resigned within the last few months.

Two resigned within a week of each other in July, leaving Case and attorney William Howell, who resigned effective Oct. 31.

The office has since moved another attorney from a separate division to replace Howell but said in the motion that doing so wasn’t a perfect solution. That attorney’s previous cases now have to be spread to others, the motion reads.

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The office has also contracted two private defense attorneys, Marty McAfee and Phil Harvey, to work part-time as assistant public defenders.

Harvey was formerly employed by the public defender’s office in the Adult Trial Division. He left to fulfill his dream of starting his own practice but agreed to continue working part-time for the office.

“When they asked me to kind of maintain a connection with the office and have the opportunity to still help out some of those clients who can’t afford lawyers, it just seemed like a win-win,” Harvey said. “And so I was excited to do it.”

McAfee declined to elaborate on his role with the public defender’s office.

Case wrote in the filing that despite best efforts, the team is struggling. 

“Here, despite the SCPD’s efforts to reduce workload by refusing new cases and arranging for the transfer of current cases to temporary Assistant Public Defenders from the private bar, an excessive workload will still prevent the SCPD’s compliance with professional and constitutional standards,” the filing reads.

Aluko, Massey sparred in latest hearing

But Case was still appointed to represent Mitchell, according to the filing.

During a Nov. 1 report date, Shelby County General Sessions Criminal Court Division 11 Judge Karen Massey, who is presiding over Mitchell’s case, questioned the office about the filing and the July email asking judges not to appoint the public defender’s office to first-degree murder cases.

A copy of the email obtained by The Daily Memphian shows that it was sent July 14 to all nine Shelby County General Sessions Criminal Court judges.

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“We are unable to fill these MCT vacancies by transfers from other trial divisions within our office without creating vacancies in those divisions that we do not have the current capacity to fill,” Aluko wrote in the email.

Aluko also said her office is “actively recruiting experienced trial attorneys” to work with the MCT.

“We hope to have the capacity to resume accepting all non-conflict Murder First Degree cases originating in General Sessions Court in the near future,” Aluko wrote. 

To have the issue publicly acknowledged, Massey asked Aluko if she had sent an email to all general sessions criminal court judges asking them not to assign her office to first-degree murder cases. Aluko confirmed she had sent such an email.

Massey ordered Aluko to argue Case’s motion to withdraw during the Nov. 1 hearing because she had sent the email over the summer.

Aluko said it was unlawful and violated the separation of power between the legislature and the judiciary — and certain constitutional rights — for her to be ordered to argue the motion. Instead, she said Case should handle arguments because she is Mitchell’s assigned lawyer.

“We believe the legislature has clearly given the authority to the public defender to assign assistant counsel to handle cases where our office has been appointed,” Aluko said. 

Massey questioned Aluko over her objection.

“...And your objection is that you don’t want to be the one to argue this motion because although you have requested that we do not assign first-degree murder cases, you did assign the case to one of your assistant public defenders but you’re not willing to argue now that withdrawal of the public defender’s office,” she said. 

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Massey asked Aluko to file a written response objecting to her order that she argue Case’s motion. After that, Massey said she would file one in response, which the office could then appeal.

Massey will hear Aluko’s motion in objection Nov. 15.

After the hearing, Aluko refused to comment further. 

“It’s our office’s policy not to comment on ongoing cases,” Aluko said. “So I’m going to have to stick with that.”

‘It’s in our self-interest to help them’

Shelby County General Sessions Criminal Court Division 10 Judge Greg Gilbert agreed with Massey that Aluko needs to publicly argue to have the office recused from first-degree murder case appointments.

“(Aluko) could have a very good explanation. We just haven’t been able to air it out in a hearing,” he said. 

Shelby County Criminal Court Division 8 Judge Chris Craft said that an assistant for Aluko also came to each Shelby County Criminal Court judge to explain that the office does not have the capacity to handle first-degree murder cases.

Craft said he had no issue working with them on appointments for those cases.

“If the DA asked us, ‘Well, please only set these cases on Tuesday,’ we don’t have to do it, but we try to cooperate with all of them,” Craft said. “And Phyllis is trying to hire more people, but it’s been shorthanded for a long time. And so, it’s in our self-interest to help them … do their job.”

When The Daily Memphian asked Aluko about the issue in August, she indicated that her office was still taking first-degree murder cases despite her July email asking judges not to appoint them.

She said her office “continues to accept new case appointments, including non-conflict first-degree murder cases at the circuit-level of criminal court,” according to the statement provided in August.

Asked what a conflict involved, Aluko’s office did not respond. 

“We take the responsibility to represent our clients seriously, and we continue to provide zealous, client-centered advocacy,” Aluko said. “We do not comment on individual cases.”

Recusal from two death penalty cases

If Case is allowed to withdraw from Mitchell’s case, it wouldn’t be the first serious case she’s pulled herself from.

Case withdrew from representing both Ezekiel Kelly and Cleotha Abston in August. Undisclosed conflicts were cited as the reason for Case’s withdrawal, according to written orders filed by the judges.

Case was recused from representing Kelly on Aug. 2 and from Abston the following day. Kelly is accused of killing three and injuring three others in a shooting spree that within an hour sent the entire city running for cover. Abston is accused of kidnapping and killing Memphian Eliza Fletcher while she was on a pre-dawn run near the University of Memphis campus.

Shelby County Criminal Court Division 7 Judge Lee Coffee, who is presiding over Abston’s case, said Case approached him and Shelby County Deputy District Attorney Paul Hagerman and asked to withdraw from Abston’s case because of staffing issues. 

“If a lawyer comes to me and says, ‘Judge, I have an issue, I have a problem. I don’t think that we should or could continue to effectively represent this person because of personnel issues,’ … it would be a violation of my oath as a judge to require that office, where they don’t have the proper staffing requirements, to handle the case,” Coffee said. “So I allowed her to withdraw.”

Craft added that, although all attorneys are qualified to take first-degree murder cases by law, the public defender’s office requires their attorneys to have more experience before taking on those cases.

“There’s legal requirements for death penalty cases but other than that, just our first-degree murder, we wait until people have experience,” Craft said. “Most of the public defenders that (Aluko) has left, they haven’t been there long or they haven’t tried serious cases.”

Capacity realities put state, county law at odds

Differing views from judges and the public defender’s office are at the crux of the issue as to whether it will continue to be appointed on first-degree murder cases or obtain the temporary recusal it is seeking. 

State law says judges should not “make an appointment if counsel makes a clear and convincing showing that adding the appointment to counsel’s current workload would prevent counsel from rendering effective representation in accordance with constitutional and professional standards.”

A Shelby County ordinance, however, states it is the duty of the public defender to “defend, without expense, and to represent generally, all persons who are without means to employ counsel, who have been indicted by the grand jury or charged with the commission of any crime.”

Gilbert disagrees that appointing private attorneys over public defenders is the right strategy. 

“Instead, we’re going to take more funds and pay attorneys to do their jobs,” he said. 

Gilbert said that conversations need to be had about the office’s needs. He also suggested the public defender could shift its more experienced attorneys to the MCT.

Stephen Hanlon, an attorney who has served as a project leader for American Bar Association public defender workload studies conducted in seven states, said in June that it is illegal to overload public defenders.

“You’re going to have to routinely get used to going home at night, knowing that there are people who went to jail or prison that day who shouldn’t have, or they went for longer periods of time than they should have,” he said of overworked public defenders. “And that you, you failed almost all day long.”