Mimesis Law
17 August 2017

Constitutional Rights Do Not Depend on the Budget

Apr. 12, 2016 (Mimesis Law) — In New Orleans, if you cannot afford a lawyer when you are accused of a crime, the Orleans Parish Public Defenders Office is appointed to represent you. You know, because the U.S. Supreme Court said that you have the right to speak to an attorney in Miranda and other cases.

Basically, the Sixth Amendment provides that you have the right to a lawyer if you are being charged with anything but a “petty” crime, normally defined as a crime that carries a sentence of six months or more.

Yet at the same time, attorneys are ethically bound not to represent someone when they cannot adequately handle their case. In other words, it is not ethical for a first year lawyer to handle a death penalty case because they have no clue what they’re doing. If you don’t have the time or ability to represent someone, you cannot take the case.

This goes for all lawyers, not just those in private practice.

So in December of last year, Derwyn Bunton, the Orleans Parish Public Defender, told a judge that they were going to stop accepting new cases. The lawyers at the PD were handling twice the number of cases that the American Bar Association recommends, and were losing experienced attorneys due to state budget cuts and attrition. The PD budget had been cut from $9.5 million in 2012 to $6 million this year, and that did not include the $1 million shortfall in revenue collections. The budget of the DA is about twice that of the PD, they have twice the attorneys, and the attorneys are better paid.

So the PD told Judge Arthur Hunter, Jr., that they were not going to take new cases. And people who had been arrested and were sitting in jail without representation were going to continue to sit there. Private attorneys were appointed, but have not received funding for those cases.

On April 8, 2016, Judge Hunter ordered that seven men in that situation be released from jail.

The seven included a murder suspect who had gone without representation for 138 days. It included a man accused of rape. Another accused of robbery. Four accused of armed robbery. They had been held for varying periods of time, but including one man who hade been held for over three years without a trial. He was 18 when he was arrested, he’s 21 now. Several had been held for over a year, with no attorney and with no trial, and with no trial date set.

In his opinion, Judge Hunter said:

The defendants’ constitutional rights are not contingent upon budget demands, waiting lists, and the failure of the legislature to adequately fund indigent defense.

Judge Hunter stayed the release pending appeal, but needless to say, the DA is having a cow. Orleans Parish DA Leon Cannizzro condemned the action, saying:

[R]eleasing defendants charged with serious acts of violence poses a clear and present danger to public safety, and he intends to appeal the ruling.

He doesn’t stop there, he accuses the private attorneys who were appointed and who have filed motions to withdraw based on non-payment of their fees, as wanting “nothing less than anarchy” at the expense of justice.

Yeah. I don’t see him giving up his six-figure income to alleviate the crisis. Or, for that matter, offering part of the DA’s budget to help.

You see, the typical view is that funding police and prosecutors will get you votes in an election. Funding the public defender? Not so much. The families of the victims are outraged, the DA is outraged, the mayor of New Orleans is outraged.

No one really cares about the 18-year-old kid who sat in jail for the last three years without a trial and without a lawyer. You see, he’s accused of rape, among other crimes. The problem is that until he is convicted, he is supposed to be presumed innocent.

There’s an easy solution that will never happen. Take the money appropriated to the DA and to the PD, pool it, and divide it. Give each side half.

Problem solved.

Oh, and while Cannizzro is accusing everyone of being anarchists and wanting to ruin public safety, perhaps he should look at Judge Hunter’s old job, before he became a lawyer and a judge. He was a cop. The ABA has recognized him for the job he has done as a judge, as one of their “Legal Rebels.” He knew a thing or two about crime and victims, and still he upheld the Constitution.

So Judge Hunter did the right thing, the only thing that he can do if he wants to abide by his oath to uphold the Constitution. He ordered the men to be released.

Because their constitutional rights do not depend on budgets, or the wishes of the DA, or even making the public happy.

8 Comments on this post.

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  • Jay
    12 April 2016 at 10:24 am - Reply

    Unfortunately it’s not so simple as splitting the budget. Law enforcement including prosecutors have access to a lot of grant money and free training. Also their budget didn’t have to account for an investigator. Or a social worker. Or anything extra.

    • Greg Prickett
      12 April 2016 at 3:17 pm - Reply

      Almost all DA Offices have their own investigators. Large ones also have social workers.

      I don’t have a problem with the DA being properly funded, but if they are funded, the Public Defender (or other system) must be equally well funded.

      You don’t get to jail people for years without providing them counsel.

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