A local judge called staffing problems at the Shelby County Public Defender’s Office “a sad state of affairs” as she allowed the office to be recused from yet another first-degree murder case. 

Shelby County General Sessions Criminal Court Division 11 Judge Karen Massey relieved the public defender’s office from representing Calvin Mitchell during a Dec. 12 hearing.

Public defender’s office struggling to handle first-degree murder cases

Mitchell is accused of carrying out a fatal shooting in Whitehaven in June; Assistant Public Defender Jennifer Case said her office asked to be recused from the case because of understaffing. 

“For one of the most prestigious public defender’s offices in the country to have devolved into this type of crisis, it really is a sad state of affairs,” Massey said. “And so how many years are we gonna have to do this if the current administration cannot hire people?”

The office’s Major Cases Team, which was handling Mitchell’s case, currently has two staff lawyers (including Case) who are juggling 37 other first-degree murder cases.

The team has slowly dwindled. Over the last few months, four of its attorneys have resigned, one of whom was replaced with an existing employee.

Case filed the motion to withdraw from Mitchell’s case in October. That followed an email Chief Public Defender Phyllis Aluko sent in July to all of the Shelby County General Sessions Criminal Court judges, asking them not to appoint her office to first-degree murder cases. 

Tennessee looks to increase appointed attorney pay after more than 25 years

In an effort to alleviate the pressure, the Major Cases Team has contracted two part-time attorneys, Phil Harvey and Marty McAfee, who have picked up 11 of the first-degree murder cases. Case said she and the other attorney, Mark Renken, are handling the rest.

Because she’s an administrator for the public defender’s office, Case said she’s unable to handle a full-time caseload. She leads the MCT and a trial division of 33 people.

Massey asked Case how many attorneys in the public defender’s office are qualified to take first-degree murder cases; Case estimated there are 10 outside the MCT who are “technically qualified” and five who are “developing.”

“Now, they all have full caseloads, so we can’t really move one of them onto our team at this time,” Case said, adding that those attorneys are handling more first-degree murder cases than the MCT is. 

Currently, the public defender’s office has 79 attorneys, down from 82 in June, according to Case. 

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

Massey questioned Case over whether the office had lost 48 attorneys over the last five years, since Aluko took office, but Case would not answer. 

In April 2019, when Aluko was sworn in as chief public defender, she took over a staff of more than 140 defense attorneys, according to previous reporting by The Daily Memphian.

“It’s a staggering number that the office has lost over the last five years,” Massey said. “I’ve never seen anything like it.”

When asked what the office is doing to recruit attorneys, Case said there are “structural inequities that have been in place for decades” that make hiring experienced attorneys difficult.

“These structural inequities affect compensation for assisting Shelby County Public Defenders,” Case said. “And so I can assure the court that Chief Aluko is engaged in advocacy and at overcoming these inequities.”

One year later: Where the cases against Cleotha Henderson and Ezekiel Kelly stand

Full-time assistant public defenders make a minimum of about $66,000 annually and top out at about $114,000, according to salary information The Daily Memphian obtained in June. Supervisors and other administrators make more, from about $115,000 to $128,000 per year. Aluko is the office’s highest-paid employee with an annual salary of $178,450.

“Nobody ever goes to work for a public defender expecting to get rich,” Massey, who is also a former assistant public defender, said Tuesday. “It’s more of a calling. A passion.”

When Massey asked Case if the office is conducting any nationwide searches, including with bar associations or law schools, Case objected, questioning the relevance to her motion to withdraw from Mitchell’s case.

“If you’re not recruiting and able to hire, nothing’s being done about that, it is relevant because this could go on for years, where you’re not up to speed,” Massey said. 

Massey told Case the Shelby County General Sessions Criminal Court judges have been in contact with the Tennessee Administrative Office for the Courts about the “extraordinary relief” the public defender’s office is asking for. 

Public defender’s office recuses itself from Cleotha Henderson, Ezekiel Kelly cases

Massey said motions to withdraw would have to be heard on a case-by-case basis.

“The court has to find the public defender incompetent and relieve you,” Massey said. “So you are relieved.”

““The court has to find the public defender incompetent and relieve you. So you are relieved.””

Judge Karen Massey
Shelby County General Sessions Criminal Court Division 11

If the questions Massey posed to Case were pointed, they likely would have been more so if the judge had been able to hear from Aluko directly. The two had sparred earlier over who would argue Mitchell’s motion, Aluko or Case. 

After a number of legal maneuvers — including a petition for a writ of certiorari, a court process to seek judicial review of a decision of a lower court — Case ultimately was able to argue the motion on behalf of her boss.

Mitchell’s case was reassigned to attorney Katherine Oberembt, who was one of the four former MCT members to leave the public defender’s office this year. She is now working for The Law Office of Massey McClusky Fuchs & Ballenger. 

Slow grand jury proceedings ‘a travesty,’ says top public defender

The public defender’s office also recently filed a motion to withdraw from 18-year-old Edion White’s case, Case revealed during the hearing. He is charged with first-degree murder for the killing of a 15-year-old and awaits a grand jury’s indictment decision.

Case said his case was disposed before the office’s motion to withdraw could be heard.

Case also withdrew from representing both Ezekiel Kelly and Cleotha Abston in August. 

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.

Undisclosed conflicts were cited as the reason for Case’s withdrawal, according to written orders filed by the judges.