2,500 Arrested Before Katrina Are Still in Limbo

Nearly three months after Katrina struck Louisiana, about 2,500 people arrested on minor charges before the hurricane struck are still in custody. A number of them have never been charged, many are being held beyond the time they were due to be released, and hundreds have never had a court hearing.

Their plight is one of many troubling issues facing the Louisiana court system, where funding for public defenders, among other problems, has been further imperiled by the storm.

When the storm struck, about 8,500 people being held in the New Orleans jails were relocated to facilities throughout -- and, in some instances, outside -- the state.

A small group of volunteer defense lawyers has filed writs and obtained the release of more than 1,800 of the evacuees, said Phyllis Mann of Alexandria, La., who has been coordinating the effort.

Still, Julie H. Kilborne, a Baton Rouge, La., defense lawyer also involved in the effort, said Friday she expected that the attorneys would have to litigate for many more weeks to secure the freedom of the hundreds still incarcerated on minor charges.

Over the last two weeks, in hearings in Baton Rouge, Judge Calvin Johnson, the chief criminal court judge from New Orleans, ordered more than a hundred people released. But the Orleans Parish district attorney’s office appealed; a state appellate court and then the state Supreme Court stayed the release order.

Asst. Dist. Atty. Donna Andrieu asserted, among other things, that there was “just cause” for holding the detainees longer because Orleans Parish prosecutors, dislocated from their office, had not had sufficient time to make decisions on whether to charge various people.

Andrieu also asserted that among the reasons prosecutors had been unable to make decisions on whether to charge certain people was the breakdown in communication experienced by the New Orleans Police Department after the storm. Defense lawyer Neal Walker cited a breakdown of discipline -- including criminal activity -- in the city’s police force.

The Louisiana Supreme Court is scheduled to consider the merits of the arguments early this week.

In a related development, the American Civil Liberties Union filed papers in a Louisiana federal court Thursday that provided disturbing accounts about 45 men and women who were incarcerated in the Orleans Parish Prison when Katrina struck.

“It was like we were left to die. No water, no air, no food. We were left with deputies that were out of control,” said one woman, identified in court papers as “Inmate #19.” She said the women eventually were abandoned by guards, left with nothing to eat or drink, and that many of them drank water out of trashcans.

Another prisoner, identified as “Inmate #41,” said he saw “a few dead bodies, and [we] were told not to say anything or we were going to be like them.”

The ACLU represents the prisoners in an ongoing federal class-action lawsuit that started years ago and led to some reforms.

Meanwhile, the state’s public defender system, considered one of the worst in the nation, suffered a further blow when Gov. Kathleen Babineaux Blanco announced plans to cut $500,000 from its budget.

On Saturday, state Sen. Lydia P. Jackson, a Shreveport Democrat, said she thought that about half of that money would be restored by the Legislature, which is meeting in emergency session.

Still, Jackson said, the local public defender offices are in “dire need” of additional funds because of revenue lost since the hurricane.

In addition, three-quarters of the public defenders in New Orleans, the state’s largest city, have been laid off, and there is no expectation that they will be rehired soon.

Louisiana is the only state in the country that primarily finances its indigent defense through traffic fines. In the best of times, this source of funding is erratic.

There is a clear reason that Louisiana stands alone, said David Carroll, research director of the National Legal Aid and Defender Assn. “There is no direct correlation between the ability of a jurisdiction to garner money through traffic tickets and the resources required to provide adequate defense services to those unable to hire an attorney,” Carroll said.

Moreover, since Katrina, those funds have slowed to a trickle, as law enforcement has been writing considerably fewer traffic tickets in the Bayou State.

Earlier this year, the state Supreme Court issued a unanimous decision stating that Louisiana had failed to adequately fund a program to provide attorneys for poor defendants, as required by the constitution.

The ruling said that the obligation to provide a properly functioning indigent defense system, which represents 80% of the state’s defendants, falls “squarely on the shoulders of the Legislature,” which “may be in breach of that duty.”

But the decision did not order the Legislature to take any specific action, and there has been little since then. An indigent-defense task force, headed by Jackson, the state legislator, authorized further study of the system -- but the hurricane came before it was launched.

Since the hurricane, some legislators, judges, attorneys and others have been holding meetings on the problem, but there is no imminent solution.

“In terms of indigent defense, the Legislature is doing absolutely nothing,” said Baton Rouge attorney James Boren, former president of the Louisiana Criminal Defense Lawyers Assn. Moreover, Boren said he was outraged that as soon as the Legislature convened in special session, lawmakers approved a bill that would shield from liability the state Department of Corrections and any local sheriff’s department that held people arrested before Katrina longer than was warranted.

In another sign of the depth of the problems, the Louisiana Indigent Defense Assistance Board, the agency responsible for distributing funds to local public defender offices, has not had a meeting since the hurricane hit because it has been unable to muster a quorum.

Particularly troubled by the situation is Judge Johnson, who has a long history with the issue. In 1992, Johnson ruled that the state’s public defender system was unconstitutional because it was so underfinanced and understaffed that poor defendants could not receive an adequate defense.

Johnson acted after hearing from Rick Teissier, the public defender assigned to represent Leonard Peart, a man charged in the rape, robbery and slaying of a Tulane student. Teissier said he had a caseload so excessive that he could not function properly. At the time, Teissier, who was being paid $18,500 a year as a part-time public defender, was handling 70 active felony cases. He was unable to see a new client until 30 to 70 days after the person had been arrested; in the first seven months of 1991, Teissier represented 418 defendants.

A 1993 Louisiana Supreme Court decision concluded that defendants in the division of court where Peart was on trial were entitled to hearings on the adequacy of their representation. But the justices overturned Johnson’s ruling that the entire system was unconstitutional.

Since that time, there have been numerous scholarly studies criticizing Louisiana’s public defender program.

Johnson has called a conference Monday to discuss the future of the system. He has ordered the participation of Tilden Greenbaum, head of the Orleans Parish Indigent Defense Board; lawyers who run criminal defense clinics at Tulane and Loyola universities’ law schools; and Teissier, now a private defense lawyer in New Orleans.

The judge’s order said the Orleans Parish criminal justice system faced “a crisis ... that requires prompt attention.”

He said the thousands of pending cases involving indigent defendants there with a public defender staff of only nine lawyers created “at least a serious question, if not prima facie evidence, that indigent defendants in Orleans Parish are not [receiving], and cannot receive, the effective assistance of counsel to which they are constitutionally entitled.”

Carroll, research director with the national defender association, prepared a report last year on the problems with Louisiana’s public defender system. He called for the state to spend at least five times as it much it had been for indigent defense.

“I realize that Louisiana has a mountain of problems they have to fix,” he said. But he added that the hurricanes had “hastened the rate at which an already failing indigent defense system is being pushed closer to complete devastation.” He said that if the state failed to act soon, it would face a constitutional crisis.

The right to counsel “does not stop when there is a hurricane,” Carroll said. “You can’t take away a person’s freedom simply because you did not plan well before a hurricane.”