New Orleans Justice System Scrutinized

From the Los Angeles Times
THE NATION
New Orleans Justice System Scrutinized
Two criminal court judges have opened investigations into whether indigent
suspects are adequately represented.
By Henry Weinstein
Times Staff Writer

February 9, 2006

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.
---
FOR IMMEDIATE RELEASE: Feb. 9, 2006


NEW ORLEANS COURT TO DECIDE FATE OF POOR PEOPLE UNABLE TO AFFORD LAWYERS

A critical hearing for poor people has been ordered for tomorrow, Friday, Feb. 9, 2006, 9
a.m., at Orleans Parish Criminal District Court's temporary headquarters at the Hale Boggs
Building, 500 Poydras Street, New Orleans, LA 70130. The Court will hear arguments by
Richard Teissier, who has been appointed to assist the Court to decide whether poor
criminal defendants are receiving the effective assistance of counsel to which they are
constitutionally entitled.

A quick glance at the current state of indigent defense reveals severe problems for poor
people facing trial in New Orleans Criminal Court. One month after Hurricane Katrina
struck New Orleans the Orleans Indigent Defender Board (OIDB) laid-off over 30 public
defenders, essentially abandoning poor people facing jail time in New Orleans.

There are currently only 4 part-time public defenders for over 4,000 poor criminal
defendants facing charges in Orleans Parish Criminal District Court, the majority of whom
have been in prison for months on non-violent offenses. The American Bar Association
says public defenders should represent no more than 150 ordinary felony cases per year.
There currently is no office for New Orleans public defenders, no secretary, and no
investigators. Poor defendants, who have not been found guilty of a crime, have only
extremely over-burned public defenders in their search for justice guaranteed by the
Constitution.

In 1991 Rick Teissier, then a public defender in New Orleans, challenged the Louisiana
indigent defense system over his crushing caseloads. Teissier's challenge resulted in a
decision by the Louisiana Supreme Court, recognizing that the clients served by this
system were "not provided with the effective assistance of counsel the Constitution
requires." Now a private attorney, Teissier says "Low-income people need real lawyers
before the state brands them as criminals, disregards their basic rights or whisks them off
to serve time in a penitentiary. It's been almost 6 months since Hurricane Katrina struck
New Orleans, and I will assist the court in any way I can to make sure poor people, many of
whom have never seen a public defender, truly have a voice in the system."

The Chief Judge of Orleans Parish Criminal Court, the Criminal Clerk of Court in New
Orleans, and the District Attorney's office and others are subpoenaed to appear. New
Orleans Chief Public Defender Tilden Greenbaum, who was quoted in the New York Times
surprisingly counseling patience and "not push[ing]" the issue of the suspension of the
rights of criminal defendants, has also been subpoenaed.

It is unclear whether OIDB will attempt to frustrate this hearing by moving to withdraw
from thousands of pending cases. The adoption of caseload standards by OIDB would be
a positive step forward for the beleaguered criminal justice system but does not solve the
problem.