Veteran Knoxville defense attorney Mike Whalen was fed up.
He’d just been told by a Knox County Sheriff’s Office staffer — who was not wearing a mask — that he couldn’t meet privately with his client at the downtown Knox County Jail because of COVID-19 pandemic safety concerns.
It was his second try at a confidential visit. A day earlier, an unmasked KCSO staffer offered Whalen use of a visitation area the attorney said not only didn’t afford privacy but required him and his client to place their mouths within inches of each other to speak through a metal grate. He declined.
“I’m always wearing my mask,” he said in an interview with Knox News. “So far, I had seen two jailers standing within arm’s reach of each other without masks. The guy checking me in — he’s not wearing a mask. … They’re not wearing masks at either of the (KCSO detention) facilities.”
So Whalen decided to make a bold request on behalf of his client, who he says is too poor to post bond and whose only chance at freedom is a looming trial in front of a masked jury.
“What I’m asking the judge to do is order the sheriff to bring the client to my office,” Whalen said. “That will meet his safety concerns, or you can order the sheriff to bring him to your house, the courtroom … or you could have the jailer bring the inmate up through the secure elevator to the court’s lock-up, and I could meet him there.”
He filed his motion early last week. By Wednesday, Knox County Public Defender Eric Lutton — facing a COVID-19 outbreak among his staff — said he persuaded KCSO to add Plexiglas protection to the attorney-client meeting rooms at the jail and to resume confidential communication between attorneys and their clients.
KCSO spokeswoman Kimberly Glenn did not respond to a list of questions about the complaints and issues being raised by attorneys, including Lutton, Whalen and members of the Tennessee Association of Criminal Defense Lawyers, on conditions at the agency’s detention facilities.
‘I don’t buy any of that’
The Knox County Health Department in July issued a mask mandate for public indoor spaces, but Knox County Sheriff Tom Spangler issued a statement saying he had “constitutional concerns” about it and would not actively enforce it.
But KCSO on Monday posted notice at the downtown jail that inmates would no longer be allowed to meet in private with their attorneys — a right guaranteed under the state and federal constitutions — “due to the coronavirus.”
“Here we have a sheriff who says he won’t enforce a mask mandate because of constitutional concerns,” Whalen said. “This (right to meet confidentially) is a constitutional right of which I am certain. I don’t buy any of that. I don’t see how they can honestly say what they’re doing (barring confidential legal meetings) is for health concerns.”
Whalen’s client has been jailed for more than a year. Whalen was appointed to represent the man in March — just as the COVID-19 pandemic hit Tennessee. The Tennessee Supreme Court temporarily shut down courts but has gradually eased restrictions — even as the number of COVID-19 cases began to rise — and, in July, allowed jury trials to resume.
The high court is mandating that everyone in the courtroom wear masks during a trial, including the defendant and the jury. Defense attorneys across the state have challenged the constitutionality of masked justice — so far, to no avail.
“I still haven’t met with my client,” Whalen told Knox News. “He really wants to go to trial. My client’s only way through (to freedom) is trial. Because the courts have decided to reopen in a pandemic, I don’t think that can be done constitutionally. But if my client is going to stand trial, come up with a way to do it constitutionally.”
Public defender brokers deal
Three attorneys at the public defenders office have contracted the deadly virus since the high court ordered courts to reopen. All three have heavy caseloads that would have put them in contact with inmates, jail staff, law enforcement officers, fellow defense attorneys, prosecutors and probation officers. They are currently under quarantine, Knox News has learned.
The public defenders office remains open to the public, however.
Two staffers at the Knox County District Attorney General’s Office also contracted the virus — one in May and another in July — but both have recovered. District Attorney General Charme Allen said each was immediately quarantined and no further cases have been reported. She is allowing her staff to work from home when possible.
Lutton said he had been concerned for weeks about the safety of his staff after learning that masks were not being worn by various KCSO detention staffers or provided to all inmates.
“We have advocated for mask wearing at the jails,” Lutton said. “We vigorously enforce the (county) mask mandate in our office.”
Lutton said he met with KCSO officials this week and last week brokered a deal to resume confidential client visits with the added precaution of a Plexiglas divider. He’s less sure of a solution on the use of masks at KCSO facilities.
“They have some ideas (for increased safety),” Lutton said of KCSO officials. “They agreed to put up the Plexiglas. I’m pleased we’ve been able to reach a resolution on that.”
Email Jamie Satterfield at [email protected] and follow her on Twitter @jamiescoop. If you enjoy Jamie’s coverage, support strong local journalism by subscribing for full access to all our content on every platform.