Two veteran New Orleans criminal court judges have launched investigations of the besieged city’s crumbling criminal justice system -- probes that could lead to major changes in how poor defendants are represented.
That system, on the verge of collapse for years, has been further imperiled by Hurricane Katrina’s consequences.
In the public defender’s office, so few lawyers are available for more than 4,000 cases that defense for the indigent is almost nonexistent. And the office has no investigators.
That disarray has caused Orleans Parish Criminal District Court Judge Arthur Hunter to summon key players in the system to a hearing that will be held Friday.
The chief judge of the court, Calvin Johnson, also believes the system is in crisis and has launched an investigation, asking Tulane and Loyola law professors to assist him.
In calling his Friday hearing, Hunter said there might be prima facie evidence that indigent defendants in Orleans Parish “are not and cannot receive the effective assistance of counsel to which they are constitutionally entitled.”
The judges’ moves follow decades of reports describing Louisiana’s system of indigent representation as one of the worst in the country. Several court decisions, including one by the Louisiana Supreme Court last year, have lambasted the system, but those rulings have not generated meaningful reforms.
One symbol of the precarious situation in the public defender’s office can be found on the website of the Orleans Parish Criminal District Court. It lists pertinent court information but does not even have a telephone number for the city’s indigent defender.
The office’s few remaining lawyers are each responsible for an estimated 1,000 felony cases, dramatically exceeding American Bar Assn. guidelines for how many cases a lawyer can handle effectively and responsibly.
“It’s impossible, not to mention unethical,” for a defense lawyer to be responsible for so many cases, said Phyllis E. Mann, a longtime leader of the Louisiana Assn. of Criminal Defense Lawyers, who has played a key role in recruiting volunteer lawyers to help out after Katrina.
Louisiana Supreme Court Justice Catherine D. Kimball, who has been spearheading efforts to get the state’s court system back to normal, said she expected Louisiana to receive at least $60 million in federal aid from the Bureau of Justice Assistance. But in a telephone interview Wednesday she said she expected little of that money to go to indigent defense, with “the lion’s share” earmarked for law enforcement agencies to defray hurricane costs.
As his first step, Judge Hunter -- who, like Judge Johnson, lost his house as a result of the storm -- appointed outspoken New Orleans defense lawyer Richard C. Teissier as a special counsel to assist him in determining whether indigent defendants are receiving the representation to which they are entitled. Teissier was raised in New Orleans and has been practicing law there since 1987.
In 1992, Teissier orchestrated the litigation that led to an infusion of $7.5 million for indigent defense in Louisiana. He later headed a lawyer panel that handled all first-degree murder cases where the public defender’s office had a conflict.
Teissier said he had a clear goal: “I think that from the devastation of Katrina, a new justice system should be implemented in New Orleans, and it should be one in which fairness is the ultimate result.”
As the judge in Teissier’s 1992 case, Johnson ruled that Louisiana’s public defender system was unconstitutional because it was so underfinanced and understaffed that poor defendants were not receiving the defense required by the state and federal constitutions.
Teissier, then a public defender, had argued that his caseload was so heavy, he could not adequately represent a client accused of rape, robbery and murder.
The following year, the Louisiana Supreme Court said defendants in that Orleans Parish court were presumptively entitled to hearings on the adequacy of their representation, but it overturned Johnson’s ruling that the entire system was unconstitutional.
Since then, several scholarly reports have criticized Louisiana’s public defense system. Louisiana is the only state that funds its program primarily through traffic ticket fines. That source was erratic even during good times and the flow of funds has now slowed to a trickle, said research director David Carroll of the National Legal Aid & Defender Assn., which issued a lengthy report describing the system’s failings two years ago. The report decried the heavy caseloads borne by public defenders and said chief public defenders did not have sufficient independence from the judges who appointed them.
Last year, the Louisiana Supreme Court unanimously concluded the state had failed to adequately fund its indigent defense program. The decision in State vs. Citizen said the Legislature “may be in breach” of its duty to fund the program but did not order lawmakers to take any specific action.
Reform efforts that were launched in the Legislature stalled, and Katrina further delayed them. The storm not only exacerbated preexisting problems but created a statewide financial crisis that made the reform prospects even bleaker.
After Katrina, Tilden H. Greenbaum III, who heads the Orleans Parish indigent defense program, laid off 30 of the 39 public defenders. Last week, the Louisiana State Bar Assn. granted Greenbaum’s agency $70,000 to fund two additional lawyers, but it set limits on how many cases those lawyers could handle -- lest those attorneys undertake more work than they could handle.
“We did not want to engender unethical conduct by the public defenders,” association President Frank X. Neuner Jr. said.
“There is a right-to-counsel crisis,” said Pamela R. Metzger, who directs the criminal law clinic at Tulane Law School. “Katrina is simply Exhibit A on why the system doesn’t work. There are structural flaws built into the system,” including the way it is funded and the way lawyers are assigned to cases.
In the near term, she said, unrepresented defendants need lawyers. But basic changes are also necessary, she said, and she is considering suing over such issues.
A partner in Louisiana’s largest law firm, M. Richard Schroeder of the Jones Walker firm, said his legal group was considering getting involved in the litigation “in pursuit of a solution, working with the court.”
Schroeder, who has done pro bono work for years, said it was unacceptable for several thousand poor defendants to be “languishing in jail” without having seen a lawyer.