Mimesis Law
23 March 2018

Things Are Coming To A Boil In The Big Easy

Jan. 18, 2016 (Mimesis Law) — The indigent defense crisis in New Orleans is coming to a head. The Orleans Public Defenders have started turning away cases in an attempt to get its caseload under control:

The Orleans Public Defenders office announced Monday (Jan. 11) that it will begin refusing certain felony cases in which defendants face lengthy or life sentences. In addition to murder cases, these can include attempted murder, forcible rape and armed robbery, said Colin Reingold, the office’s litigation director.

The action, which Chief Defender Derwyn Bunton first threatened nearly two months ago, presents uncertain options for indigent defendants charged with serious violent crimes. The office either needs more funding or reduced caseloads, Reingold said.

Defendants who qualify who for PD services are being put on a waiting list until an attorney is available to give their case the attention it deserves, which could be what…months? Years? No one knows. Which is tough for the defendant whose alibi depends on pulling security tape footage that will be overwritten in 30 days, or the one whose self-defense argument depends on interviewing witnesses while the incident is still fresh in their minds. But you know, what evs.

In response, the ACLU filed a lawsuit against the Orleans Public Defender, alleging that turning away defendants, or putting them on a waiting list, violates their constitutional rights.

WHEREFORE, Plaintiffs request that this Court:

  1. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s placement of individuals on a waiting list for public defender services violates Plaintiffs and class members’ Sixth and Fourteenth Amendment right to the assistance of counsel.

  2. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s placement of Plaintiffs and class members on a waiting list for services while Defendant Bunton provides counsel to other similarly situated individuals violates Plaintiffs and class members’ Fourteenth Amendment rights to due process and equal protection.

  3. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s denial of counsel to Plaintiffs and class members on the waiting list invidiously discriminates against class members based on wealth, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

So what happens if the ACLU gets what they are asking for? The defendants on the waiting list get their counsel. That’s just the basis for another lawsuit. A few months ago, an overworked New Orleans public defender wrote in the Washington Post:

An unconstitutionally high caseload means that I often see my new clients only once in those two months. It means that I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.

Something had to give. This, this exact thing, is the dilemma that public defenders, both in the corporate and the individual sense, find themselves in. Every. Single. Day.

Just what the hell are they supposed to do? Turn people away and they’ll rot in jail, and if and when they get counsel precious time has been lost. Take them all in and it’s like trying to drink from a firehose…along with a constitutional mandate that not a single drop of water hit the floor. And the defendants are caught in the middle.

Is there a solution? There is, but no one wants to hear it. Provide the money to adequately staff and fund the public defender’s office, and let them do their jobs. Of course, the stewards of the taxpayer’s money have more important things to worry about:

Missouri Gov. Jay Nixon, who vetoed $3 million in additional public defender spending last year, said the state’s budget is too tight to dramatically increase spending on legal representation for the poor.

“With the resources you have, what are your priorities?” he said. “We’ve kept its funding consistent. … We’d love to have unlimited money.”

Right. Stadiums for teams that go back to Los Angeles don’t pay for themselves, you know. And what’s more important, the Rams or the Sixth Amendment?

So, what’s going to happen in New Orleans? I don’t know, but I did happen to live through a similar episode in Missouri as an APD (Note: the following version of events is entirely my own. I had a worm’s eye view of the situation but took absolutely no part in any sort of policy-level discussions or decisions.)

The Missouri State Public Defender, starting in 2005, tried to get their caseload under control. It asked for an exemption from time standards (Missouri Supreme Court rules on how long cases were supposed to take from arraignment to sentencing) and were denied. Later, individual offices began turning away certain types of cases (such as probation violations) when they were overloaded. This was litigated up to the Missouri Supreme Court, and overruled. In 2011, the Springfield office started refusing all cases once they had hit their threshold. This was litigated up to the Missouri Supreme Court and upheld.

Then things got interesting. In 2012, offices around the state started “certifying” themselves as unavailable according to a formula worked out by the home office. At first, things actually seemed to get better. Then, affected courts started appointing private lawyers (not just criminal defense attorneys, either) to represent indigent defendants (without pay). A number of those private attorneys contacted their state representatives and senators, and in the 2013 legislative session there was a bill introduced that would have abolished the Missouri State Public Defender, and to replace it with a contracting system, presumably populated by lawyers who knew their place. I still remember getting the system-wide email from the Director in early May of 2013 that announcing that the bill had not been passed: “Everybody breathe.”

MSPD backed off of refusing cases and went back to the traditional strategy of asking for more money from the Legislature. Which, even when granted, was often withheld by the governor. At the time, I was just happy to have my job. In hindsight, I wonder what would have happened if management had called the Legislature’s bluff. Call it ego, call it pride, but there’s no way in hell that some ad hoc contracting system would have done nearly as good a job as we did, and still do. The resulting chaos might have actually forced a change for the better.

So good luck, my brothers and sisters of the Crescent City. I hope it works out for you. But I wouldn’t bet my muffeletta and Abita on it.

7 Comments on this post.

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  • jdgalt
    18 January 2016 at 11:47 am - Reply

    I should think at some point, we would see defendants starting to be freed because the system has deprived them either of counsel or of a speedy trial. Why can’t ACLU sue for that outcome instead?

  • jay
    18 January 2016 at 2:13 pm - Reply

    The ACLU in Idaho sued the state to provide a better public defense system, a lawsuit that is ongoing. In New Orleans, the ACLU sues the public defenders to keep the gears grinding.

    People have different conceptions about the ACLU. What they don’t realize is, so does the many parts of the ACLU. Too bad New Orleans is apparently where the ACLU has hired idiots and hacks.

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