by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
CHAPTER 3
Greg Bright sits on his porch in May 2012, reflecting on the twenty-seven years he spent wrongly imprisoned. “It feels like a minute since I been out here,” he says, musing over the notion of time—time past, time lost, time wasted. Photo by Karen Houppert.
A PERFECT STORM:
LOOKING FOR JUSTICE IN NEW ORLEANS
The coroner’s report is a yawn—just another dead black boy, in a city where 183 died that year. He wrote:
The body is that of a thin, small, young black male, appearing his stated age of 15 years, weighing 113 lbs. and measuring 4’ 10” in height. The head is covered with black hair, which is braided and bloody. There are two recent bullet entry wounds of the left temple . . . There are tattooes [sic] over the left forearm, the letter “W.” and a figure resembling an asterisk, over the right upper arm, “W.” There is a transverse 3.5 × 0.1 cm. scar on the left antecubital skin. No needle tracts or recent punctures can be seen anywhere. The chest and abdomen are symmetrical. The genitalia are well developed.
The coroner, pathologist, and morgue attendant viewing the body of teenager Elliot Porter at the New Orleans City Morgue at 9 A.M. on October 31, 1975, agreed that rigor mortis was not yet present. Based on this, the boy could not have died more than three hours earlier. They estimated the time of death as between 5 A.M. and 8 A.M. that same morning.
This seemingly inconsequential detail would prove important to Greg Bright, one of the men accused of murdering the boy.
But getting to it would take twenty-seven years.
New Orleans has its own peculiar notions of time. This is true on a day-to-day level where folks may turn up for a scheduled appointment at the agreed-upon hour, but are just as likely to turn up an hour later. It is also true on a month-to-month level, where citizens—largely poor, black male ones—can be legally held in jail for up to two, three, or four months while the district attorney takes his time deciding whether or not he will prosecute them for a crime. (Locals call it “doing DA time,” and it shocks the sensibilities of most in the legal community where seventy-two hours is the national norm.) It is also true on an epochal level where most of the world divides time between B.C. and A.D. but New Orleans residents organize history into the sweeping categories “pre-Katrina” and “post-Katrina.”
Time is a relative thing in Louisiana. Justice, too. Talk to almost anyone in the New Orleans criminal justice system and they will laud the “post-Katrina” reforms. But this is a little like celebrating the move from caves to shacks. (This is not an abstract metaphor; the Orleans Parish Prison still houses hundreds of its residents in oversize tents in the heart of this often sweltering city, visible from a nearby highway overpass as drivers glance beyond the coils of razor wire.) When Hurricane Katrina hit in August of 2005, it laid bare the hoards of problems that besieged the poor in this city. Fixing these problems is taking time, New Orleans’s time—leisurely, friendly, wink-and-nod, hot, humid, old-world, slow-moving, don’t-kick-up-a-sweat time.
Like a stop-action film, criminal justice in the city flickers slowly enough to be studied frame by frame. This makes the city a good place to see how the various pieces fit—or fail to fit—together into a workable system that protects the constitutional rights of the accused, addresses the restorative needs of victims, and ensures public safety. After all, Louisiana is the largest “consumer” of the justice system. It sends more people to prison per capita than any other state in the country. It executes more people than forty-one other states do.1
In 2012, state inmates numbered more than forty thousand. As New Orleans’s Times-Picayune newspaper observed in a meticulously reported and deeply troubling eight-part exposé called “Louisiana Incarcerated: How We Built the World’s Prison Capital” in May 2012, “one in 86 adult citizens is behind bars”—and many of them will live out their lives there due to the state’s especially harsh mandatory sentencing laws. It is one of only six states that completely exclude the possibility of parole for lifers2—and leads the nation in the percentage of those behind bars who are serving life without the possibility of parole.3 In 2012, that translated to 4,500 “lifers” and approximately $1 million per prisoner if he enters in his twenties, as most do, and lives to his seventies.
Despite decades of these tough-on-crime, zero-tolerance, three-strikes, lock-’em-up-and-throw-away-the-key policies, Louisiana’s murder rate was the highest in the country last year, according to the FBI’s Uniform Crime Report.4 And Louisiana’s largest city, New Orleans, consistently has the highest homicide rate in the nation with 58 murders per 100,000 residents in 2011 (compared to the national average of 5 per 100,000).5 It also has more miscarriages of justice than almost every other state, exonerating more people on death row or serving life sentences per capita than everyone but Illinois, according to the National Exoneration Registry.6
So what’s going on with the cops and the jails and the prisons and the courts and, indeed, the whole criminal justice system there that it so profoundly fails its citizens? This is a question that has plagued a small but persistent group of reformers in New Orleans who, in the aftermath of Katrina, saw an opportunity to step into the vacuum left in the storm’s wake and reinvent the way that justice is perceived and delivered in the city.
They seized the moment. Against the tremendous obstacles of entrenched corruption, cronyism, patronage, and a history of racist practices, they made real progress. But this is not a success story. This is a miles-to-go-before-we-sleep narrative in which, in order to understand the strides the city and state have made, it’s important to set the recent past up against the present, Greg Bright’s pre-Katrina story against Clarence Jones’s post-Katrina experience in 2012. These two indigent African American men—accused of murder and burglary, respectively—span the range of crimes and years that saw reformers battling a deeply flawed criminal justice system in New Orleans.
On the night of October 30, 1975, fifteen-year-old Elliot Porter clumped down the stairs of his home in New Orleans’s Central City Calliope Project. “It was about something to eleven when I asked him not to go outside,” his mother Myrtle Porter recalled at the time. She heard him clambering down the steps from where she lay on her bed and called out, telling him to stay put. It was a Thursday night. “You’ve got to go to school tomorrow,” she told the eighth grader. “And, he say, ‘I’m not going anywhere. I’m going right downstairs.’”7
But he did not just go downstairs. He went outside. He took a walk with some friends and never came back. The next morning, a paperboy delivering the Times-Picayune discovered his body in a crawl space beneath another building in the projects. There were two bullet holes in his head.
Police began looking for leads, interviewing family members, people in the projects, a friend of Elliot’s. Their investigation produced a series of suspects. Several public housing residents suggested Elliot Porter was smoking a lot of weed—and dealing a little on the side. Several witnesses came forward alleging that the boy had accepted $300 for a bag of marijuana that he promised to deliver, but then skipped out on the pair of buyers. They fingered a woman and a man from Thibodaux, Louisiana, as the thwarted buyers who sought revenge. They had threatened to go after him. Chances are, they had. Chances are, they shot him. That was the word, anyway, from folks in the project.
But before cops could follow up on this, they got a tip from a local resident named Sheila Robertson, who pointed them in a completely new direction. Robertson, twenty-three, announced eleven days after the shooting that she had actually witnessed what went down the night Elliot Porter was killed.8 She happened to be sitting at her window smoking a cigarette and waiting for her boyfriend around 1 A.M. on the night of the shooting, she told police. She saw two guys walk along the sidewalk with Porter between them. “Then I saw Elliot Porter broke out and run, he a little ways and ran between the two buildings,” she told a detective on November 10. “I saw him crawl through a hole in the fence and that’s when I heard two shots.”9 Th
e next day, she learned that Elliot Porter was dead.
On November 15, a few days after this witness came forward, cops banged on Greg Bright’s door at 2 A.M. Greg was a tall, slim African American man who lived a few blocks from the scene of the crime. Sheila Robertson, who knew him from the neighborhood, told cops where they could find him, and asserted he was one of the men she saw with Elliot Porter. The police cuffed Greg, put him into the back of a cruiser, and took him to the city jail.
Locals refer to the jail by its street address. “While I’m at Tulane and Broad, I discover there is another guy on the tier arrested and charged with the same offense. Earl and I were thrown together on a crime that neither of us had anything to do with,” Greg says, referring to his co-defendant, a seventeen-year-old African American kid named Earl Truvia who was an eleventh grader at Booker T. Washington High School and whom Greg first met at “Tulane and Broad” when he learned they were charged together with murdering Elliot Porter. Greg knew Earl’s brother, but didn’t know him. “Now how do you take two innocent people and frame ’em up? Haul them into a courthouse? Don’t give them an opportunity or chance to say nothin’?”
Greg asks me this and shakes his head, recalling the series of events for me as I sit on his front porch in New Orleans’s 7th Ward one hot day in April 2012. Thirty-seven years after his arrest, Greg Bright conjures up this moment as vividly as if it were yesterday. “At the time, I had never been in the back of a police car,” he says. “You could imagine the horror that would come after two police officers knock on your door at two in the morning and say that they have a warrant for your arrest. For murder.” He shakes his head. For nearly four decades he has been worrying this moment, reliving it, arguing it, insisting he knew nothing about the crime.
Today, at fifty-six, he is a lanky, bone-thin man dressed in khaki shorts, a grey Saints T-shirt, leather sandals with socks, and a black do-rag. He has a scruff of grey hair on his chin and has a gap between his front teeth. He perches on a wooden captain’s chair that he has dragged outside from the dining room and leans forward, then back. He removes his glasses, then puts them back on. He gestures with his hands, then stills them. Both hesitant and compelled to talk, he drifts back in time to remember the twenty-seven years he spent imprisoned at Louisiana’s notorious Angola prison for a crime he didn’t commit, offering up his story as a cautionary tale, and backing it up with reams of dog-eared court documents, the coffee spills and curled edges and underlined passages testament to the hours—decades, really—that he spent poring over these same papers.
His story, which should be ancient history, is not.
Reforms have radically improved the quality of representation in the public defender’s office in the last six years, but the problems are entrenched.
Many of the city’s systemic issues that kept him locked away for so long persist today. Greg fought a host of them: inadequate funding for public defense; a casual disregard for the letter of the law when it comes to sharing exculpatory information; unchecked prosecutorial misconduct; regular refusals to provide the poor with legal help for appeals; misaligned financial incentives for public defenders, prosecutors, and the sheriff; an insular judicial culture and oldboy network of cops, lawyers, and judges; and maybe even a racist presumption of guilt.
As Greg Bright sat in jail at Tulane and Broad that first day in November of 1975, he knew he faced a lot of trouble. “The way things was going, I knew nothing good was going to come out of this,” he said. He is prone to understatement.
When Greg had his day in court in 1976—and indeed all the way up until 2007, despite the U.S. Supreme Court’s 1963 ruling in Gideon v. Wainwright—legal representation for the poor in New Orleans was a shaky prospect. In the years before Katrina hit, there was no statewide public defender system in Louisiana. The sixty-four parishes were divided into forty-one judicial districts, and in each of these districts the local judges appointed an indigent defense board to operate an indigent defense system. In systems cobbled together ad hoc over the years, some districts had an assigned counsel, where judges appointed local attorneys as needed (as say, Atticus Finch was in To Kill a Mockingbird), some had a contract system where the local board would contract with individual lawyers or firms to handle all their indigent defense cases, and some had a public defender’s office. The quality of defense clients received was wildly divergent across the state. The districts had only one thing in common: the local judges were ultimately in charge of public defenders, even if it was at the narrow one-step remove of appointing the public defender board, typically their chums.
In the case of Orleans Parish, the local bar association was supposed to recommend lawyers for the indigent defense board. “But mostly judges appointed private criminal defense lawyers who were prominent and good friends with the judges,” says Steve Singer, assistant clinical professor at Loyola University New Orleans School of Law and supervisor of the criminal law clinic there. Further complicating this patronage was a system in which public defenders were assigned to a particular judge and courtroom. Judges casually referred to these lawyers possessively as “my public defender” and the linguistic lapse was telling: public defenders knew who their boss really was and knew they had to keep the judge happy. Sometimes, this led to horse trading. If a cranky judge was likely to grant only one or two favors a day, which client would the public defenders appeal for? Who would get sold down the river? Because these same public defenders were also representing private, paying clients for half the day, those clients were often the recipients of the lawyers’ extra efforts.
For poor clients, the public defender was paid the same whether he or she spent two hours or two days on a case. Obviously, this was not true with the hourly-billed paying clients. The financial incentives, then, pushed the lawyer to spend as little time as possible on the public defense cases and as much as possible on private cases. (Also, private clients accrue via word-of-mouth, so a client’s sense that she or he was well-served mattered tremendously; indigent clients were randomly assigned and, given the seemingly endless supply of arrests in the city, new cases cropped up as quickly as old ones were disposed of.) Public defenders were paid in the low to mid-$30,000s in 2004 to 2006. The less time spent on public defender cases, the fewer motions filed, the more guilty pleas encouraged, the fewer cases taken to trial, the more time a public defender saved to spend on paying clients. “You don’t have to be a bad person or a bad lawyer [to operate this way],” says Singer, insisting that the pre-Katrina public defender’s office contained both good and bad attorneys. “But either way, the system they were stuck in made it bad.”
Those who loved the setup were the judges. Having your very own public defender in your courtroom all the time meant she or he was always at your disposal. It was an efficient system, because judges could move briskly through the business of the day, processing pleas and clearing their dockets. They never had to wait or rearrange or reschedule things because the public defender on the case was dealing with a different client in someone else’s courtroom. The conflict of interest here was obvious, but the judges, who controlled the courts, were disinclined to change things. “Who it didn’t work for were the clients,” Singer says.
Even on the most mundane, practical level it was a mess. The thirty to thirty-five part-time public defenders didn’t have their own office space but used a basement room in the courthouse at the pleasure of the judges. They had cubbies but no rooms with doors for confidential meetings with clients. They had one copy machine and one phone line. They had no voice mail. They had no case management system more sophisticated than index cards in a recipe box. They had four computers, two with dial-up Internet access. Together they averaged twenty-eight thousand clients annually.10
All this was problematic, but by far the most troubling aspect of the criminal justice system here was the fact that, after being arrested, a poor person could sit in jail for up to 45 days on a misdemeanor, 60 days on a felony, or 120 days on a murder without a
ny contact with an attorney while the Orleans Parish district attorney decided whether or not to prosecute the case. Pamela Metzger, an associate professor at Tulane University School of Law, describes this Kafkaesque scenario most eloquently in a 2007 Tulane Law Review article: “If one takes the Miranda warnings literally, one expects that upon arrest a poor person can request the appointment of counsel and that an appointed lawyer will thereafter be provided,” Metzger writes. “True, after hearing the police intone ‘you have the right to an attorney, if you cannot afford one, one will be appointed to represent you,’ an arrestee might rightly invoke his right to counsel and then look wonderingly about the jail as the police explain, ‘you have to see a judge to get an attorney appointed.’” Metzger then goes on to describe how our hypothetical arrestee experiences justice, Louisiana-style:
