Justice Is Another Victim of Katrina

It was telling, one recent morning, that despite the presence of prosecutors, defense attorneys, bailiffs and 27 shackled inmates in orange jumpsuits, New Orleans Magistrate Anthony J. Russo felt compelled to point out: “This is a court.”

“We are going to have the same decorum,” he cautioned.

Russo, a 31-year veteran of the bench, is one of a handful of judges presiding over the only form of criminal justice in New Orleans. Court is held in the basement of the local jail with a ratty, peeling ceiling and yardstick notches on the wall because the room was once used for police lineups.

Every case, from traffic tickets to homicides, is argued here. The building has no heat; one prosecutor wore woolly gloves while she argued her case. A stubborn pool of water hugs the entrance, so a wooden pallet is used as a bridge, Municipal Court Judge Sean Early said.

Nothing, perhaps, embodies the civic collapse of New Orleans after Hurricane Katrina so much as the city’s criminal justice system.

Defense attorneys have dubbed New Orleans “Guantanamo on the Bayou,” because some clients have been held for months without access to the court system.

The attorneys have begun seeking, and winning, the release of their clients, as judges have agreed with some regularity that people accused of crimes cannot be held indefinitely without a hearing, even in an emergency.

Indeed, even while Orleans Parish Dist. Atty. Eddie Jordan pledges to resurrect his agency and finish prosecuting 3,000 cases, law enforcement and criminal justice authorities acknowledge that the release of some defendants in recent weeks could be just the beginning.

“No one is sleeping on it,” Russo said. “Everybody is working to resolve it. But the criminal justice system is at a standstill. We will be forced to make a decision as to which of these defendants are going to have to be released.”

Orleans Parish Executive Assistant Dist. Atty. Val Solino acknowledged that some cases would be compromised. But, he said, “we are not going to roll over.” He said his office “will review every case and determine from the facts and the circumstances and the availability of witnesses how we will proceed.”

No portion of the justice system is intact.

Defendants and lawyers are displaced across the country. So are the only eyewitnesses in many cases -- the victims of armed robberies, for instance, or the police officers who found cocaine or heroin in a defendant’s pocket.

Defense attorneys and prosecutors are having legal debates they never imagined before the storm.

“Let’s say, for instance, you were taken off your roof by a helicopter and ended up in upstate New York, but you were out on bond at the time -- which happened,” said C. Gary Wainwright, a defense attorney and a former candidate for district attorney. “Technically, to be out of state is a violation of bond, and you’re supposed to be put back in jail. But the government took you to New York. So what happens next?”

New Orleans no longer has a single functioning courthouse; the main Criminal District Court compound remains shuttered and dark. Court records, the city’s two primary evidence vaults, coroner’s reports and the city crime lab were all flooded.

Even if those problems could be resolved, Russo said, the state is unable to grant defendants a trial by jury, which they are guaranteed by law. “We don’t have a jury pool,” Russo said. New Orleans’ population has hit a plateau in recent weeks at about 20% of what it was before the storm.

Meanwhile, as existing cases stagnate, the caseload grows. Many of the new prisoners are out-of-town laborers who have learned that vast stretches of New Orleans are abandoned.

“We’re seeing a lot of new looting cases, and they’re mostly from out of town,” Russo said. “The Police Department is trying to watch this property, but as a practical matter they can’t do it. After dark, it’s a no man’s land in there. No one will see you. You can back up a truck to a house and, most of the time, no one will stop you.”

Law enforcement officers are as stretched as everyone else; among other tasks, they are working to track more than 100 registered Louisiana sex offenders who fled the storm to Texas.

Prosecutors face problems on two fronts: finding the resources to pursue cases they had taken before the storm, and sorting out the 1,000 or more cases in which suspects have been held without access to attorneys or the courts.

Under Louisiana law, prosecutors have 45 days to bring charges against someone arrested on misdemeanors and 60 days to bring charges against someone arrested on felonies. Those deadlines, in many cases, have passed.

Louisiana Gov. Kathleen Babineaux Blanco and the state Supreme Court have given prosecutors extensions, which defense attorneys say might be illegal considering that the state and U.S. constitutions guarantee defendants the right to a speedy trial.

“The people who are sworn to uphold the Constitution are suspending it -- on their own,” Wainwright said.

Judges are starting to agree.

This month, for instance, Judge Gerard J. Hansen released a man and a woman who had been arrested shortly before Katrina -- on marijuana possession and theft charges, respectively -- but never formally charged.

Hansen noted that they had already served more time -- more than two months -- than they would have if they had been convicted at trial.

Orleans Parish’s chief Criminal District Court judge, Calvin Johnson, ordered more than 100 prisoners freed. After reviewing the ruling, the Louisiana Supreme Court said 34 of the inmates should be released immediately. The others have to remain in custody until at least Jan. 6 while the district attorney’s office considers how to proceed in those cases.

Typical of the courts’ dilemma is the case of Gerrard Carter, arrested on drug possession charges in July after police said they found 40 rocks of cocaine on him.

In the chilly room of the parish jail that functions as New Orleans’ courtroom, Kevin V. Boshea, a defense attorney and former prosecutor, presented Carter’s case to Criminal District Court Judge Frank A. Marullo Jr.

Carter, the attorney told the judge, was arraigned July 30 and pleaded not guilty.

“He’s never had a [court] appearance since?” the judge asked incredulously.

“Zero,” Boshea told him.

Like hundreds of other inmates transferred as floodwaters rose, Carter has been at the Louisiana State Penitentiary in Angola since the storm.

The evidence against him -- the alleged cocaine -- is almost certainly gone, Boshea said. There are three places the evidence could have been when Katrina struck: in an evidence room at New Orleans Police Department headquarters on Broad Street, in the crime laboratory on Tulane Avenue, or in the basement of the criminal court at Tulane and Broad. All were flooded.

“There is no indication of when this case could come to trial,” Boshea told the judge. “I have reason to believe that the evidence in this case does not exist. I believe the state’s case may be nonprosecutable.”

Shaking his head, the judge lowered Carter’s bond from $75,000 to $10,000. Carter is expected to be released by the end of the month. It is unlikely he will ever be brought to trial, Boshea said.

“At the end of the day, when I say ‘Show me the coke’ and they say ‘We don’t have it,’ I don’t see the state sustaining a case,” Boshea said. “I understand the logistical problems. And some [criminal] out there who is threatening people deserves to be prosecuted; I’m a citizen before I’m a lawyer.

“But if they can’t take these cases to trial, they have an ethical and moral responsibility to act. And they have a responsibility to taxpayers to stop wasting their money.”