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Another Crisis in New Orleans: Indigent Defense

By TChris, Section Huricanes Katrina and Rita
Posted on Tue May 23, 2006 at 06:38:12 AM EST
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by TChris

Among a dozen criminal court judges in New Orleans, one so far has had the courage to stand up for the Constitution. Speedy trials are impossible in a city that can't get lawyers to indigent defendants, leaving more than a thousand jail inmates with no trial date, no lawyer, and no immediate hope of having their day in court. The presumption of innocence is a hollow promise to those who are jailed indefinitely as they wait for the system to fulfill its obligation to provide them with counsel.

Judge Arthur Hunter recognizes that enough is enough.

And so Judge Hunter, 46, a former New Orleans police officer, is moving to let some of the defendants without lawyers out of jail. He has suspended prosecutions in most cases involving public defenders. And, alone among a dozen criminal court judges, he has granted a petition to free a prisoner facing serious charges without counsel, and is considering others.

Even before Katrina, New Orleans' public defender system was underfunded. Now it's in a state of chaos.

The public defenders' office, run not by City Hall but by a parish board, is basically broke. Louisiana, alone among the states, relies mainly on local court fees -- mostly surcharges on traffic tickets -- to finance its public defenders, according to the National Legal Aid and Defender Association.

Louisiana could solve the problem by making the funding of indigent defense a state obligation, funded by state resources. State legislators have shown little interest in assuring that poor people are adequately represented. It may be up to people like Judge Hunter to force the state to assume its responsibility.

It is a financing system that Judge Hunter and Calvin Johnson, the chief judge of the criminal court in New Orleans, have recently found to be unconstitutional because it forces poor people to pay for the system.

Until the system begins to function, every pretrial detainee should be released. Maybe that would get the attention of state legislators who just don't seem to care about their constitutional obligation to provide lawyers to all the presumptively innocent defendants who are rotting in jail.

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    Another Crisis in New Orleans: Indigent Defense | 19 comments (19 topical)
    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#1)
    by Talkleft Visitor on Tue May 23, 2006 at 07:20:14 AM EST
    Defendents awaiting trial have a right to speedy trial under Louisiana law (details here). The state should step in to supplement the parish so that the obligation can be met in such trying times. At the same time, does the following strike anyone as a dangerous policy?
    And, alone among a dozen criminal court judges, he has granted a petition to free a prisoner facing serious charges without counsel, and is considering others.
    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#2)
    by cpinva on Tue May 23, 2006 at 07:28:03 AM EST
    At the same time, does the following strike anyone as a dangerous policy?
    well, yeah, except for that small matter of a presumption of innocence. i realize it's a minor detail, but i'm a detail kind of guy.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#3)
    by Talkleft Visitor on Tue May 23, 2006 at 07:32:04 AM EST
    Of course there is a presumption of innocence. But what happens when one of those accused a violent crime is released due to the backlog and kills or rapes someone. Then you have a national media event that will likely lead to measures that further reduce defendent rights in the future. We can presume all the defendents are innocent but we know that many aren't. Why release those accused of "serious" offenses? Start with those being held on non-violent charges and see if that spurs state involvement.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#4)
    by Talkleft Visitor on Tue May 23, 2006 at 07:52:12 AM EST
    Interesting that you "know" these people are guilty. But, everyone has what we call "Constitutional rights". Those rights include the right to bail and a speedy trial. It is up to the State to assure that citizen's rights are not violated. If someone who is freed because his rights are violated commits a later crime, it is the fault of the State because it did not act constitutionally. It is not the fault of the judges who simply did what the Constitution requires that they do. Perhaps then, it will be the catalyst for the people of LA. to demand that the State fix an obviously inadeqate system.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#5)
    by ksh on Tue May 23, 2006 at 08:00:20 AM EST
    On the eve an another hurricane season, I get the nasty feeling that the jails could fill up with defendants stuck there through another horrible storm. I wonder if there is the possibility of any civil action to enforce speedy trial requirements under LA statutes. I can't say I blame the judge, as dangerous as the policy could be. On another note, yesterday I heard a story on NPR about buying leniency through charitable contribution of a DA's choice in Washington state. I was surprised to hear this is a countrywide practice and was used even in DUI cases where a defendant could make his priors disappear or get out of jail free. It didn't come to the public's attention until someone with more than one DUI was encouraged by his attorney to complain about the process.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#6)
    by Talkleft Visitor on Tue May 23, 2006 at 08:39:43 AM EST
    Well Dick, I don't "know" that any of the individuals in custody in Orleans Parish are guilty but common sense tells us that at least some of those arrested actually committed the crimes they are charged with. Considering the circumstances, and the strain on the judicial system in LA, a dose of reality is helpful. If this were Toledo, OH (or any other city that wasn't devestated by a natural disaster of unprecedented proportion) and similar delays were occurring, I would agree drastic measures (like the premature release of charged defendants) would be in order. The situation in New Orleans requires that we view reality through a slightly more understanding lens.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#7)
    by Talkleft Visitor on Tue May 23, 2006 at 09:09:13 AM EST
    The Article does not go into detail enough to warrant the release of any career criminals. The Article barely touches base and make the judge appear intoxicated and unable to ascertain who and what he or she is letting out into society.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#8)
    by Talkleft Visitor on Tue May 23, 2006 at 09:41:54 AM EST
    croc, It's always easy, on the outside, to assume that some being held are guilty, or that we need to be realistic in the general sense of taking into account a natural disaster. However, speaking in general terms does not do anything for the indivdual who is being held in deplorable conditions, without any hope of getting a trial. It's kind of like Guantanamo. There may be a terrorist or two there, but does that justify denying the human rights of the innocent goat farmer being held there? Constitutional Rights are granted to each individual citizen. There is nothing in the Constitution which allows an indidual's rights to be violated simply because it may be assumed that somebody may have committed a crime. Nor is there a natural disaster exception to the Constitution. It's really quite simple. Under our Constitution individuals have rights guaranteed to each. The Government may not violate those rights. It never ceases to amaze me that people are always willing to compromise the rights of others based upon convenience of the state. However, I do private criminal defense, and those same people always demand their own rights when they're the ones being charged with a crime. (see e.g. DeLay,Tom; Libby,Scooter).

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#9)
    by Talkleft Visitor on Tue May 23, 2006 at 10:22:21 AM EST
    Dick, I agree that those being held in custody in Southeast LA have the right to a speedy trial and have a legitimate expectation that the state would not intentionally drag out the term of their pretrial detention unnecessarily. I'm afraid this is yet another example of the political ineptitude so historically endemic in Louisiana. The state legislature should provide emergency funding to the hurricane effected region so that criminal dockets can be cleared. I do not, however, endorse the gross conflation of issues you and others here advance. The circumstances in Louisiana have nothing to do with DeLay, Libby, Rove or others. Making such outlandish claims harms credibility. My original post questioned the reasonableness of releasing those who are charged with "serious" crimes. I particurly disagree with TChris' proposal, obstenibily to "get the attention of the state legislature":
    Until the system begins to function, every pretrial detainee should be released.
    Something must be done to bring the Orleans Parish criminal court docket back on schedule, and particular interest should be paid to the rights of the accused. However, to paraphrase Justice Jackson, would you allow judicial requirements to covert the process into a suicide pact by not applying a little practical wisdom to the circumstances?

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#10)
    by Kevin Hayden on Tue May 23, 2006 at 10:26:51 AM EST
    Among the plans Bush has for his 'most massive reconstruction in history', justice and constitutionally protected rights are nowhere to be found in the blueprints. And because this fine judge has decided to apply the law, he will be slammed as 'an activist judge'. If Louisiana breaks the law, it is not acting as an example of a democracy's judicialsystem. It is maintaining another gulag just like Guantanamo, only for American citizens.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#11)
    by Dadler on Tue May 23, 2006 at 10:43:25 AM EST
    Croc, They are ALL presumed innocent. ALL have the right to a speedy trial. Is it better to have an innocent murdered in jail by a convict, or a civilian murdered by a released inmate? They are BOTH awful, and essentially cancel themselves out logically and rhetorically. Therefore it behooves us to keep the justice system just, and not merely conveniently so.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#12)
    by Talkleft Visitor on Tue May 23, 2006 at 11:24:26 AM EST
    Another Crisis in New Orleans Yeah...Ray "school bus" got re-elected.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#13)
    by Patrick on Tue May 23, 2006 at 11:50:51 AM EST
    It is up to the State to assure that citizen's rights are not violated. If someone who is freed because his rights are violated commits a later crime, it is the fault of the State because it did not act constitutionally. It is not the fault of the judges who simply did what the Constitution requires that they do. Perhaps then, it will be the catalyst for the people of LA. to demand that the State fix an obviously inadeqate system.
    Kinda hard to argue with that point. Good job Dick! A natural disaster, what, nine months ago, is no reason to deny people their rights. Perhaps the folks will vote in new leadership....Oh well, maybe not.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#14)
    by narius on Tue May 23, 2006 at 12:43:43 PM EST
    However, speaking in general terms does not do anything for the indivdual who is being held in deplorable conditions, without any hope of getting a trial. It's kind of like Guantanamo. There may be a terrorist or two there, but does that justify denying the human rights of the innocent goat farmer being held there? Wait until one of those "presumed innocent" people rape or kill and let's see how the judge feel about it. Blood will be on his hands. A few thousand is a very small percentage of the population. I would rather the one or two potential terrorists stay in Gitmo than coming here and blow stuff up.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#15)
    by Dadler on Tue May 23, 2006 at 02:21:49 PM EST
    Patrick, What control would the mayor have over the judiciary in New Orleans?

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#16)
    by Dadler on Tue May 23, 2006 at 02:27:09 PM EST
    Narius, A few thousand is a small percentage of the population??? Check your soul, my friend. I mean, what was six million Jews to the overall population of Europe? What of the innocents murdered in our jails and camps and interrogations? Are their lives more expendable? Is that the message we want to send out? That WE'RE not willing to die for our freedom, right here in our own land, but more than willing to let OTHERS die or rot, far away and innocent, and forgotten.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#17)
    by Talkleft Visitor on Tue May 23, 2006 at 03:16:06 PM EST
    Dick, You say, "Constitutional Rights are granted to each individual citizen." I say, no. Our rights, I like to call them Natural Rights, are ours. A legitimate government recognises them. A good government writes them into a constitution, or, (in a nod to my brothers and sisters across the pond) recognises they are part of the unwritten constitution. No one grants them to me but God.

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#18)
    by Che's Lounge on Tue May 23, 2006 at 04:43:34 PM EST
    Yikes then I have no rights! Cause I don't believe in God. Now what?

    Re: Another Crisis in New Orleans: Indigent Defen (none / 0) (#19)
    by Talkleft Visitor on Wed May 24, 2006 at 01:18:57 PM EST
    1. That someone who is released on Constitutional grounds may commit a violent crime is no argument against releasing them. Someone would do that even if Constitutional protections were in place. Judges aren't Gods who can foresee the future. And even if they could, should they flush the Constitution because they could predict who would reoffend? 2. They might be better of defending themselves anyway: Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant That has to be partly because Public Defender's offices are so underfunded and overworked.

    Another Crisis in New Orleans: Indigent Defense | 19 comments (19 topical)