The Defense Never Rests: An Interview with Attorney Jerry Summers

By: Joe Moan and Mike Haskew
Chattanooga CityScope Magazine
Spring 2004

Perhaps the most difficult time in anyone's life would be the hour in need of representation in a court of law. For many years, civil plaintiffs and criminal defendants in the Chattanooga area have sought the counsel of Jerry Summers. With 37 years of experience as a prosecutor, judge, and defense attorney, his name is one of those most recognized in the legal profession locally.

During his career, Summers has been involved in a number of high profile cases. He has been a champion of change in the legal system and a tireless advocate of the right of an individual to a fair trial. He was the first municipal judge in the city of Soddy-Daisy and holds memberships in numerous professional and honorary legal organizations.

He is also an active supporter of the Special Olympics and serves on the board of directors of CADAS, Orange Grove, New Life Homes and the Stadium Corporation. A resident of Chattanooga for most of his life, Summers is a graduate of Central High School, the University of the South at Sewanee, and the University of Tennessee Law School. He was a standout, three-sport athlete at Central and also participated in athletics at Sewanee and Auburn University.

CityScope publisher Joe Moan and writer Mike Haskew visited Jerry Summers in his office recently, capturing a glimpse of his philosophy about the law and about living in our community.

CS: AT WHAT POINT DID YOU DECIDE TO BECOME A TRIAL LAWYER?

Summers: At Sewanee, I was played on the baseball team, and we went to the CAC tournament at Washington & Lee in Virginia. An umpire there was also a scout, and he had come to see another player. He offered me a $500 a month contract with the New York Mets. That was when the Mets were managed by Casey Stengel, and they set the record for the greatest number of losses in major league baseball history. This was 1963, and I turned it down because I had a bad shoulder, I was too little, and I was too slow. I wish I had tried it now just to say that I did. I didn't know what to do, and I thought about going into the Air Force as a pilot. Both my roommate and I were offered jobs at Volunteer Life Insurance, and then I was also offered a scholarship to the UTK law school. Attorney John K. Morgan, who also helped me in other ways, went through the options with me, and I said, "Well, guess I'll go to law school."

I didn't distinguish myself. I just barely hung on my first year. John Morgan helped me survive with the Dean. During the second year, in legal clinic I was able to work on cases, got exposure as a trial lawyer and liked it. I think I came in second in moot court practice, and that helped but I was nowhere near the top of my class. I was probably in the two percent holding up the other 98 percent.

CS: WHAT ARE YOUR MEMORIES OF BEING A YOUNG LAWYER?

Summers: My uncle was active in politics here and worked hard for the election of Ed Davis, the district attorney general. A vacancy came open, and I got a job with the DA's office out of law school at $9,500 a year, but I was single and you could get a hamburger for a quarter and a Coke for a nickel.

Two of the older assistants left after I had been there four months, and as a result I had time in the courtroom all by myself. I gained wonderful experience - a lot of it by getting my brains beat in by lawyers like Henry Grady, Harold Brown and Carter Schoolfield. After a while, instead of being the whipping boy, I got to whip a few people. I stayed there for 28 months and went out in practice with (former criminal court judge) Joe Dirisio and (current East Ridge city judge) Arvin Reingold and stayed a short period of time with them. I started law school with no preconceived idea that I wanted to be a lawyer, and the only other thing that I would liked to have done is catch for the New York Yankees at today's salaries. I can't remember all the cases I won but still remember all of the ones I lost in the DA's office and private practice.

CS: DO YOU STILL FEEL THE SAME ABOUT THE LAW NOW AS YOU DID WHEN YOU FIRST ENTERED THE PROFESSION?

Summers: I do. I still get excited about it and have always felt that the law is a very changing subject. We have revolutions in this country every day in the courtroom, but they are peaceful revolutions. Many times there may be a dissent, meaning only one judge thinks something is wrong and the others on the court may go along and overrule him. Then, it can change with the composition of the court. That is one of the exciting things about being a trial lawyer, that you have an opportunity to butt your head against a stone wall many times. I said years ago in an interview you can get laughed at, but after a while you find that the wall may move a little bit. I've been lucky in having some good cases that helped me do that.

CS: YOU HAVE TAKEN TWO CASES TO THE U.S. SUPREME COURT. WHAT ARE YOUR MEMORIES OF THOSE EXPERIENCES?

Summers: I have had two reported decisions at the U.S. Supreme Court, and that means they granted you petition and heard your case There are probably 7,000 or 8,000 cases filed each a year, and they may choose 100 or 120 for oral argument so it is hard to get a case selected. I had two in 1973, I believe, but have not had one to argue since. It is quite an experience. Few lawyers around here have been to the U.S. Supreme Court. Jac Chambliss, the late Del Fuson and Judge Bill Carter are the few I recall who have argued a case in the Supreme Court. The cases have to be very novel. The first case (Brooks vs. Tennessee) was dealing with a statute on the law books in Tennessee for about 140 years, and it said a defendant, if testifying, had to be the first witness for the defense. I lost in the trial court, two appellate courts in Tennessee, and then the U.S. Supreme Court reversed it in an unanimous 9-0 decision as a violation of equal protection and due process of law. They struck the statute down. The other one was Robinson vs. Neal, a double jeopardy case after a similar Florida case had been decided. It had to do with the assessing of fines in city court and then binding someone over to the grand jury on an identical state charge. I was co-counsel with Attorney Jim Robinson and fortunately we prevailed in that one also.

CS: IN PREPARATION FOR A TRIAL, WHAT IS A LAWYER'S BIGGEST TASK OR RESPONSIBILITY?

Summers: The responsibility is to provide effective assistance of counsel under the Sixth Amendment of the U.S. Constitution and Article 1, Section 9 of the Tennessee Constitution. There is never any question of effectiveness if you win, but if you lose you are liable to be criticized or sued by your client. In any case, civil or criminal, you have to know the case.

In criminal court, it is important to get a preliminary hearing. It is legal malpractice not to ascertain as much as you can from that proceeding, and I see lawyers every day waiving that right. It may be going up to trial anyway, but it gives the lawyer a shot to evaluate witnesses and prosecutors also get a chance to look at their case. They often make decisions based heavily on the affidavit of the arresting police officer and a preliminary hearing can get the state's attention that their case is not necessarily a slam dunk. Evaluating a case is a large part of the defense attorney's role. The best lawyers are those that can effectively evaluate cases. There is an old saying that you try your strong cases and settle your weak cases. Some lawyers can do that, and some cannot.

CS: WHERE CAN SOMEONE GO WHEN THEY REALLY DO NOT HAVE THE MONEY FOR AN ATTORNEY?

Summers: One of the big changes in my years of practice is the creation of the public defender system in both state and federal court. In the old days, a group of lawyers was appointed to represent indigent people, and there is still quite a bit of that because there are conflicts or more than one defendant in a case. Ardena Garth's (public defender) office does good job, and the district attorney's office complains it is understaffed but the public defender's office is more understaffed, usually with one assistant in a court while there are often three or more assistant DA's, but with their resources they do a good job.

About 75 percent of the criminal practice now is people represented by the public defender. When I went out in 1969, only three or four lawyers were doing full-time criminal practice and there were four or five asking for appointments. Now, 20 or 30 lawyers are trying to get appointments. That is good training, but a lot more cases are being pled now, and the ones that go to trial are the really bad cases. There is a better quality of representation by the public defender's office, but that is also taking away an avenue of gaining experience. Older lawyers being appointed and younger lawyers working with them and getting training does not exist as much as it used to be.

CS: DO YOU FEEL OUR CONSTITUTION IS INTACT AND OUR BILL OF RIGHTS IS AS STRONG TODAY AS WHEN OUR FOREFATHERS AUTHORED IT?

Summers: No, I really don't. The Fourth and Fifth Amendments have really been watered down. There is so much pressure on politicians to say they are doing this or that for "law and order." I'm kind of a student of history, and the individual that used the term law and order the most was probably a fellow in Germany from 1933 to 1945. Unfortunately, most of the things Hitler did were under the guise of law and order. A lot of people get scared and often will give up their liberty. I prepared a test one time and changed the wording so that when people answered the questions they had unanimously destroyed the Bill of Rights. One of my favorite quotes is by Benjamin Franklin who said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Everything is so much more public now, and groups have good intentions. The area of roadblocks is one area that reminds me of Nazi Germany. I believe we have good enough law enforcement and the older timer police officers will tell you they would rather be on patrol and see a car weaving, speeding or some other traffic violation that will give them a reason to stop someone rather than the dog and pony shows at roadblocks for publicity purposes.

The U.S. Supreme Court has said there is a limited exception to the requirement of a warrant because of concern for public safety and the problem with drinking drivers on the highways. The Tennessee Supreme Court went along with the U.S. Supreme Court and said that as long as certain strict procedures are followed there can be sobriety checkpoints. We used to have the practice that the highway patrol could stop you and check your driver's license. In a case two years ago, they ruled was illegal.

Even if you have not done anything, how do you feel about pulling up on a public highway and having people start asking you questions - and they may have a drug dog out there. Some say, "Well, if you don't have anything to hide you shouldn't worry about it. Well, that's not the point. The point is that you shouldn't be subjected to that whether you've done anything or not because this is America. This isn't Munich. This isn't Berlin.

CS: PEOPLE SEE THESE HIGH PROFILE CASES AND QUESTION WHETHER THE SYSTEM IS WORKING. WHAT DO YOU THINK?

Summers: You've got this big issue about the right of the public to know under the first amendment versus the right of the defendant to get a fair trial under the sixth amendment and the duties and obligations of lawyers. There are several things I don't like. One is lawyer advertising. It turns a profession into a business and has nothing to do with picking an attorney. You can come out of law school and have no experience and spend $50,000 on advertising and represent you are qualified to handle certain types of cases. Let's face it - the American public is very gullible when it comes to advertising. Then there are these cases with Court TV and everybody is an expert giving their views of this and that. The public knows more about the case before it ever comes to trial, and jurors may be exposed to some of this prejudicial publicity.

You have to worry sometimes about so much news being disseminated. Our Whole system is based on a presumption of innocence. You don't have that in Europe. You don't have jurors to determine guilt or innocence. You have three appointed judges. I have been disappointed sometimes in cases I thought I should win and have lost, but I have never lost confidence in the American jury to try and find justice.

I think everything now is so public about the facts and circumstances of a case. A victim should be entitled to some anonymity. There is a danger that the search for truth can get sidetracked, and that bothers me. The public's right to know can encroach on the ability of an individual to get a fair trial.

CS: WHAT DO YOU THINK ABOUT CAMERAS IN THE COURTROOM?

Summers: I'm very much opposed to them. It is a great way for me to grandstand or get some free publicity, and I probably get as much as anybody around. I'm very careful what I say about things, and I think the cameras turn the search for the truth into a production, whether a defense lawyer, DA or judge is trying to run for election or reelection a judge ought to be able to sit there and try to make a decision consistent with the law and the evidence and not be subject to pressure. I have seen reporters come into the courtroom while I'm arguing something that was going very well. Then a camera comes in and sometimes it will turn things around 180 degrees with the court. It was an experiment, and I think it has been a failure. Trials can be covered, but when you turn the camera on you can affect the administration of justice.

CS: IS THE JURY SYSTEM OUR BEST WORKABLE OUTCOME FOR A TRIAL?

Summers: Unequivocally. Absolutely. When there is a bad result, the appellate court or trial judge will correct it many times. These are built-in safeguards. I think the greatest rock in the foundation of freedom and democracy is the jury system in both civil and criminal cases. There is always a movement to do away with the rights of citizens to make those decisions, and when that happens completely we will have serious problems in America.

CS: ARE THERE ANY "MUST FIXES' IN OUR JUDICIAL SYSTEM?

Summers: I think the system works a lot better than it is given credit for doing. That is not an original thought. You've heard that before. A jury making a decision that may be unpopular is to me a sign of the strength of the jury system, that they are courageous to live up to the oath they take to try and find justice. Sure, sometimes they make mistakes. Sometimes a guilty person goes free, but that is the way our system works. You've heard that old cliché that it is better for 10 guilty people to go free than one innocent person to be convicted. If I were that one person, I would not disagree with that statement.

Federal sentencing guidelines have greatly increased the control of prosecutors in cases and diminished the discretionary authority of judges, making it difficult for a person to get a fair trial in the federal system. Judges say they have to follow the law. Suppose you have a kid with two minor marijuana charges and who may have sold or smoked it. If he gets caught in illegal activity and won't cooperate, he will just about automatically go to jail. The only way to get a downward departure (reduction in sentence) is to become a snitch (informant) so that the government, solely in their discretion, can give a downward departure. The same defendant can get probation in state court. In federal court, he may get a mandatory minimum of 10 years. No suspended sentence. The guidelines are set so low that almost any offense that is committed requires you to go to jail.

I recognize we have serious problems with drugs, but a lot of people who get caught up in this cycle need treatment and help, more than to be put in jail for 10, 20 or 30 years. I am not a weeping liberal, but I do think I am a compassionate person, and I have a hard time sending a 19-year-old kid away for 20 or 30 years because that is wiping a person off. You can forget about them.

CS: WHAT ARE YOU MOST PROUD OF IN YOUR CAREER?

Summers: I am proud to have been able to change the law in some cases. I am proud to have been able to have an exciting and interesting career and to earn a good living that has let me do other things I feel are important. I have been involved in Special Olympics and Orange Grove for a long time. A father once told me something of which I am very proud. He said that his retarded daughter who goes to Central High School was asked to write an essay about who her hero was and why. She wrote that I was her hero. That was important to me. Over the years I have had some notorious clients, gotten good results in some cases, and had my butt beat in others. I like to think I have contributed in some way other than just making money. I was asked if I still had the fire in my belly for the law, and I said that I was still looking for the next case. I have five great lawyers working here for me now, and that gives me flexibility. A lot of lawyers are smarter than me, but not many will outwork me. I got that from my daddy. I've been lucky, and this community and the news media have been good to me.

I'm proud of always believing that everybody should have an equal opportunity irrespective of their race, sex or creed; and of my record over the years in making certain that everyone has same opportunity to be a success or failure as a lawyer as I have had.

CS: DO YOU HAVE ANY ONE CASE YOU WOULD LIKE TO TRY OVER?

Summers: Every case that I have lost. Lawyers who say they don't lose cases don't try cases. A lawyer came in from Kentucky to try a case with me one time, and he asked a cab driver if he knew Jerry Summers and what he knew about him. The cab driver said Mr. Summers "is the lawyer they get when they're really guilty." I guess that was a compliment, but I don't want clients to think they've got to be guilty to hire me. I have had some cases I lost when maybe I didn't do as good a job as I should have. Everybody is entitled to be represented, and I have never been very selective about what cases I choose. If someone walks in the door and I believe they are entitled to a defense or if the court appoints me, then I have the same obligation to defend them whether I am appointed represent the person or they have paid a substantial fee. That is what we take an oath to do as lawyers. I'd like to try over all the cases I have lost.

CS: HOW WOULD YOU FINISH THIS SENTENCE: "JERRY SUMMERS IS A MAN THAT...?'

Summers: A man that loves the law, believes in the law and hopes the people of this country will never forget the privileges we have within our legal system.

CS: DO YOU HAVE A MENTOR?

Summers: I have several. You don't get where you are without the help of other people, and one thing I have tried to do is say thank you.

My dad, Homer Howard Summers, instilled in me a work ethic along with my mother, Millie Geraldine Keeble Summers. I was really fortunate to have almost two sets of parents, my uncle and aunt, Jimmy and Betty Smith, who supported me while I was growing up. I learned a lot from coaches Stan Farmer, Red Etter, and Gordon Smith at Central, and Shirley Majors at Sewanee. Charlie Saylor was the personnel manager at the old Chattanooga Glass factory. He would give me a job in the summer. Dr. Walter "Oogie" Martin did not know me, but Stan Farmer put in a word for me and helped get my roommate, Norm Buzzanca, and me partial baseball scholarships at Auburn. Sammy Joyce, a salesman at Lookout Sporting Goods, was responsible for getting me up to Sewanee. Ed Davis gave me my first job in the DA's office, and that was a great experience.

I about flunked out of law school, and no records of outstanding academic achievements by Jerry Summers exist at UT Law School. John Morgan went to the dean and spoke up for me and kept me in school, and I finally turned it around. Where I am or may be, or what I am, I have to give them credit. In some small way, I have tried to recognize them and thank them. There are many others including my clients, fellow attorneys and friends who have helped me in my career that I also should thank for their support.

CS: AS AN ATTORNEY, HOW WOULD YOU LIKE TO BE REMEMBERED?

Summers: That is probably a subject of great controversy. There are people that love me and hate me. As a trial lawyer, the best I can ever do is to get a 50 percent approval rating. If I win, the other side may be mad at me as well. If I lose, then the client is mad at me. If the best is 50 percent right and worst 100 percent wrong, then you can't really build a base as a politician. I am what I am, and wondering about how I will be remembered is somewhat egotistical and sanctimonious. There are no sacred cows. When I have thought someone was mistreated, I have stepped on toes that I should have backed away from if I wanted to further my own ambitions or goals. I've never been that way, and I'm probably not going to change. Also, I want people to remember that Jerry Summers stood up for some things when it took courage, or maybe lack of brains. The holy writ is the Constitution, particularly when you think about all the people who have died and are dying now to defend it.

CS: WHEN YOU CAN GET AWAY FROM YOUR LEGAL PRACTICE, WHAT DO YOU ENJOY DOING?

Summers: I enjoy being involved with Central High School, Sewanee and the Special Olympics and Orange Grove. I am also active with the UT Law School. This community and those schools have been good to me. I stay pretty busy. I think you have to give something back to the community. You can never repay it completely, but you ought to try.

I have a little cabin on the lake, and I get out in my boat and relax. I also have a farm in Walker County, GA, and I enjoy that when I can. I also read a lot of history books and enjoy my old cars. I play it day to day. I have as much fun as anybody. My latest avocation is that I started playing pool in the last year. I wish I had started earlier because it is challenging and the conversations amongst the players light and refreshing. I have a retarded godson named Bucky Williams, whom I have been close to for many years. He is 32 and wasn't supposed to live beyond about eight years old. Involvement with retarded children tells you how wonderful those kids' parents are. They are really committed. They are special parents.

CS: DO YOU HAVE A GENERAL PHILOSOPHY ABOUT LIFE?

Summers: You need to enjoy life. Everyone seems in this day and age to get into the religious aspect and wear it on their sleeves. I have religious beliefs, but to me these are more personal things. There are too many people who are not true in everything they purport to say but use religion for the benefits. I don't believe that God cares who wins the UT-Georgia football game or who scores a touchdown. I respect people's religious beliefs and their community beliefs, and you have to live within yourself. My philosophy is to live day to day and do the best I can. If I fall short, I fall short. I know you can't get to the final place by just good deeds, but I think you can help yourself. You also have the obligation to say thank you to the people that helped you get there. Hopefully, other people will come down the road and help me further.

We are here for a short period of time, and I'm now 62 years old. I hope to still be able to step up to the plate and hit the ball in the courtroom. Some people may not like me. Maybe a small percentage would say good things about me. I'm sorry about those that don't feel that way, but I can't worry a minute about it. I have to live with myself. ~

Jerry Summers has been a contributor - to athletics, to the practice of law, and to bettering the lives of those less fortunate. In his concern forgiving "something back" lies a lesson for everyone.

Permission to reproduce article given by Joe Moan on July 27, 2004