Evacuated Prisoners Are Captive to Legal Limbo

Seven weeks after being knocked out by Hurricane Katrina, the Louisiana criminal justice system is still struggling to become functional and faces more daunting challenges with the prospect of diminished budgets.

The most immediate challenge, defense lawyers say, is freeing people jailed on misdemeanor charges before the hurricane who have now served well past their sentences.

Some Louisiana Supreme Court justices agree. Chief Justice Pascal F. Calogero Jr. said in an interview Saturday that, based on legal motions the court heard last week, he believed at least 41 prisoners evacuated from Orleans Parish Prison were overdue for release. Many are at the maximum-security Elayn Hunt Correctional Center near Baton Rouge.

Justice Bernette J. Johnson said: “I am interested in making sure we don’t have anyone locked up one day longer than they should be.”

Late last week, the court rejected, 4 to 3, an emergency motion by defense lawyers for a judge to be appointed to conduct hearings on evacuated inmates. The court had announced shortly after the Aug. 29 hurricane that it would be closed until Oct. 25.

Calogero, who voted for the motion, said it was rejected because of procedural problems. “I thought we should ignore the formalities and send a judge” to Hunt, he said, to hear inmates’ arguments that they were being held illegally.

Johnson, who also backed the motion, said the situation was “rather chaotic,” adding: “We are trying to make some sense of it.”

In a similar case, a veteran criminal defense lawyer filed a suit in state court Thursday demanding that New Orleans’ chief criminal judge convene a hearing by today on claims that inmates were being held in violation of their constitutional rights.

The suit, filed by Richard C. Teissier of New Orleans, was among many Louisiana filings since the hurricane that charge that people have been incarcerated too long or without any formal hearing on minor prehurricane charges.

“Petitioners have not been afforded the right to compulsory process, to a jury trial, to access to a courtroom, let alone freedom,” Teissier wrote in a writ of habeas corpus made public Friday.

“Despite the best efforts” of Orleans Parish Criminal District Court to resume operations, the inmates “continue to be held in a manner that does not provide due process, without any guarantee that due process will be achievable in the next days, even months,” Teissier wrote.

The chief criminal district court judge, Calvin Johnson, said Saturday that he would probably hold a hearing on Teissier’s motion Tuesday, at Southern University in Baton Rouge. (The Federal Emergency Management Agency has said New Orleans’ flooded main criminal courthouse is unfit for use. Hearings also are being held at a bus station.)

Defense lawyer Phyllis E. Mann of Alexandria, La., one of the attorneys who asked the Supreme Court to resume operations, said defense lawyers were trying to get the state’s highest court to designate a place for hearing cases about the inmates “and cut through this mess.”

Mann, who has coordinated efforts of the defense bar to compile a full list of 8,500 evacuated prisoners’ new locations, said she knew of no evacuated inmate who had seen his or her own lawyer of record.

Mann filed an action Friday afternoon seeking the release of 48 evacuated inmates held on misdemeanor charges.

About 700 evacuated inmates have been released, some because of earlier suits and others as a result of actions by the Louisiana Department of Public Safety and Corrections. But thousands remain in custody without the immediate prospect of a formal hearing or a trial.

Separately, state officials launched an investigation this month into allegations that prisoners evacuated to a temporary facility in Jena had been abused. The officials closed the facility last Sunday, and inmates were transferred to other jails.

Johnson said criminal trials probably would not resume in New Orleans until January or February, partly because potential jurors and judges themselves had fled the city. The homes of nine of Orleans Parish’s 13 criminal court judges have been destroyed, including his own, Johnson said.

Defense lawyer Teissier argues in his brief that evacuated prisoners have no prospect of “testing evidence, conducting pretrial hearings on discovery issues” or filing motions. Consequently, many “are expected to be left with a ghastly choice -- plead guilty in exchange for time served or remain in jail in perpetuity pending the re-creation of a judicial system.”

Teissier said the inmates were “not suggesting that the storm of Katrina should offer them a ‘free ride,’ but merely asking for the day in court they are entitled to.”

“The catastrophe of Hurricane Katrina has exacerbated the fundamental flaws previously existing within the system for providing indigent defense,” Teissier argues in his brief, emphasizing that the lack of funding for public defenders and crushing caseloads have been a consistent problem.

Louisiana’s system of indigent defense has been widely criticized as one of the worst in the country. It is the only one funded almost totally by court fees generated from traffic tickets. That revenue source, erratic at best, has diminished substantially since the storm. Thirty of Orleans Parish’s 39 public defenders were laid off last week because of a lack of money, Orleans Indigent Defender Program Director Tilden H. Greenbaum III said.

Meanwhile, East Baton Rouge Parish is facing increased demands for public defenders, the parish’s population having roughly doubled since Katrina. The parish employs 27 public defenders, according to the chief defender, Michael A. Mitchell. But their office faces eviction by the city of Baton Rouge.

Mitchell said rent had gone unpaid for four years because the office had been “so strapped” for money that it could pay only salaries and operational bills. “We take the position the parish government should provide us with office space,” as it does for the local prosecutor’s office, said Mitchell, who has been chief defender since 1993.

An extensive 2004 study of Louisiana’s indigent system, written by David Carroll, research director of the National Legal Aid and Defender Assn., recommended that the state increase funding sixfold to meet American Bar Assn. standards.

Chief Justice Calogero, who has frequently argued that the state’s indigent defense needs significant improvements, said Katrina had stalled efforts to fix the system.

He said he hoped FEMA and the Justice Department would provide money to get the court system up and running again and pay for prosecutors, sheriffs and public defenders. But he said he was not sure when or how much such money would be provided.

In fact, a state official reported Friday to a Louisiana legislative committee that state government would lose 18,000 jobs if it turned to layoffs to offset a projected storm-related loss of at least $1.5 billion in state tax revenue. Among the jobs likely to be cut, Administration Commissioner Jerry Luke LeBlanc said, were those in education, healthcare for the poor, child welfare, coastal restoration and indigent defense.

Researcher Carroll warned: If “state policymakers ignore the indigent defense system post-Katrina as they did before the first hurricane made landfall, Louisiana is surely facing a constitutional crisis....

“If federal and state taxpayers resources are to be used to reconstruct a better levee system to prevent future generations from being subjected to the horrors of another natural disaster, a similar barrier must also be built between the torrents of injustice and the poor -- a well-regulated, well-funded indigent defense system.”