by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
The arrestee asks: “When will I see the judge?” “Tomorrow.” The arrestee heaves a sigh of relief: “So, I’ll get my lawyer tomorrow.” “Not exactly,” is the police officer’s reply. “There will be a lawyer in the courtroom when the judge sets bail, but that lawyer’s in that courtroom every day for every new arrest. That won’t be your real lawyer. You’ll get one of those later.”
“When might that be?” the suspect wonders. The officer explains: “The DA has to decide if he wants to prosecute you. He’s got 60 days to decide about you, that’s a rush job because you’re in custody; if you bond out, they get 120 days to decide.”
“So once the district attorney decides, I’ll get a lawyer?” asks the suspect. “Not exactly, is the officer’s reply. “Once charges are filed, you’re arraigned. That’s where you say ‘not guilty.’ You get your lawyer at that proceeding.”
“When will the arraignment be?” asks the increasingly alarmed prisoner. “Within 30 days of the DA’s decision—all told, you’re guaranteed to have your own lawyer within 90 days.”
Desperate, the suspect asks: “Can I just go ahead and agree that the district attorney should charge me?” “Nope,” says the officer. “They make that decision on their own.”
“But I’m not guilty,” wails the prisoner. “In 90 days it will be too late. There won’t be any way to find all the witnesses who saw what happened. And I’ll have lost my job. My wife won’t be able to make the rent. Can’t this go any faster?” The officer smiles. “Perhaps you’d like to make a statement to us after all? We could try to clear this whole thing up and send you on home.”11
Metzger contends that the “extraordinary length of the Louisiana screen period converts an otherwise appropriate administrative charging function into an illicit system of plea extortions and punishment without trial.” Even if the person is never charged, the damage is often done. “Louisiana’s mind-boggling sixty-day screening period means that the old criminal justice maxim, ‘you can beat the rap, but you can’t beat the ride,’ is truer in Louisiana than elsewhere,” she says.12
Norris Henderson, founder and director of Voice of the Ex-Offender (VOTE) and a board member of the reentry program Resurrection After Exoneration, both New Orleans–based advocacy and service organizations for ex-offenders, elaborates on the impact this has. “What’s happening to that person sitting in jail for sixty days before, say, the prosecutor drops the charge?” he asks, then answers: “The damage is done.” The accused person may not have a record, but by the time he is released on day fifty-nine, he likely lost his job, lost his apartment because he couldn’t make rent, lost his slot in a drug-rehab program, lost his car when it was repossessed, and had his kids taken by child welfare if he had custody or, if not, would quickly find himself back before a judge for lapsed child support payments.
If the DA does decide to pursue prosecution and files a Bill of Information, basically an official charging document, the defendant has now lost several months languishing in jail without an attorney to investigate his case. Alibi witnesses have forgotten whether or not they were with the defendant that Wednesday night three months ago when the crime took place. Tread marks on the road have disappeared. Blood fades from the carpet. Glasses with potentially useful DNA get washed. Receipts—proof of purchase—get tossed. Time frames and markers—“I distinctly remember I was watching The Colbert Report, so it had to be around 11:30 P.M.”—fade from memory.
And in Orleans Parish, when the defendant is finally appointed a lawyer after 45, 60, or 120 days in jail, the lawyer is likely to be handling that case along with six hundred other cases.
Things came to a head in 1993, when a public defender named Richard Teissier was struggling with a crushing caseload in Section E of Criminal District Court.13 In addition to his slew of other clients, Teissier was readying a serious case for trial, representing an indigent client named Leonard Peart. Peart was charged with armed robbery, aggravated rape, aggravated burglary, attempted armed robbery, and first-degree murder. Teissier didn’t see how he could provide effective representation for Peart in addition to his other clients. He filed a Motion for Relief to Provide Constitutionally Mandated Protection and Resources and Section E’s Judge Calvin Johnson held several hearings. He discovered that Teissier, a part-time employee, had seventy active felony cases, had clients who were typically in jail one to two months before he met with them, had little access to an investigator, had a trial on every available trial date, and had, for an eight-month period the year before, 418 clients, 130 of whom entered guilty pleas at arraignment.
Change was in the air in the country. Many state legislatures were hearing about the crisis in indigent defense and beginning to look at restructuring services and refunding programs. New Mexico, Missouri, and Kentucky radically boosted funding in 1989, while Georgia and Tennessee created statewide public defender boards. Public defenders had begun clamoring for reforms. Sometimes, people listened. In New Orleans, Judge Johnson was one of them. He agreed that this was unconstitutional and ordered Teissier’s caseload—which by then had swelled to 785—reduced. In the short term, he did this by appointing members of the local bar to represent indigent clients in his courtroom. Long term, he ordered—or tried to order—the legislature to fund the city’s public defender office adequately. The state appealed the ruling. While the defendant Peart was tried and acquitted of armed robbery and murder, Judge Johnson’s ruling that the legislature adequately fund public defense traveled to the Louisiana Supreme Court. Not surprisingly, the court found that indeed the kind of lawyering going on in Section E—assembly-line style—was not up to constitutional snuff.
This was a victory. Sort of. But the judges also side-stepped the issue, saying: “We decline at this time to undertake these more intrusive and specific measures because this Court should not lightly tread in the affairs of other branches of government and because the legislature ought to assess such measures in the first instance.” In essence, the court said whether or not individual clients appearing in the future in Section E are getting adequate counsel should be decided on a case-by-case basis. One dissenting judge thought the decision, narrowly applying to only one out of twelve courtrooms in Louisiana’s Criminal District Court, was absurd given the systemwide problems, insisting this was like “saying that a person in early term is ‘only a little bit pregnant.’” The remedy did not begin to address the “systemic constitutional deficiencies” in the state realistically. He blasted his colleagues for offering up Section E as a “lamb for burnt offering,” and insisted they were delusional, “hoping that an all-knowing, benevolent deity will miraculously cure the ills of the indigent defense system in that section and elsewhere.”
The benevolent deity passed them by, but a malevolent one intervened. “How do you break up that kind of system?” Singer asks, shaking his head as he maps out the long, troubled history of indigent defense in New Orleans. Then he answers his own question: “You have a hurricane.”
What did indigent defense in the city look like in those pre-Katrina days? Greg Bright was learning, firsthand, the answer to that question.
On December 4, 1975, approximately a month after he and Earl Truvia were arrested, an Orleans Parish grand jury heard ten minutes of testimony from a single witness, Sheila Robertson.
“Would you tell the ladies and gentleman just what exactly you saw and where you were and what took place?” assistant district attorney Kurt Sins asked her.
“Well, one night I was in the bedroom. It was the night before Halloween, and I was in the bedroom looking out the window, which I always do,” Robertson said. “I always be looking out the window most every night . . . and there be three guys. Two of them . . . one of them was on one side of [Elliot Porter] and the other one was on the other side. He was in the front, and it looked like they was arguing. So, when they saw me in the window, they started hugging, and they were hugging, you know, like they were laughing, you know, as if they were . . .”
“Did they all three go to laughing?” Sins asked.
“No, just the two, not him.”
“Where were they?” Sins asked. “Was one on one side and one on the other?”
“Right,” Robertson agreed. “And when Elliot saw me in the window, he was trying to beg me to help him if he thought I had a phone or anything, or maybe he thought I could get in touch with the police or something, but I didn’t. So, I didn’t understand what he was trying to tell me then.”
“What do you mean, ‘he was trying to tell’ you? Did he actually speak to you?”
“No, he was looking at me like if, you know, something was going on, and he was trying to get somebody to help him.”
“Did he have a frightened look on his face?”
“Yes, but I didn’t know, see, I didn’t know what really was going on at the time, so I didn’t know what to think. I looked at him and, you know, and uh . . .”
“What happened?”
“O.K. Then they walked, they walked, he got like about two steps, two steps, and then he broke out and ran. The other two boys broke out and ran behind him. They broke out and ran behind him on the side of the building, and the next thing I knew they were shooting. The other two boys ran back, and one stopped and glanced at me. You know, he looked at me real hard. The other one told him to ‘come on,’ and he started running, and they went back to around the Miro [Street] side. The other side which was Miro, and, uh, then about a couple of night later the same two guys came in on me. I was laying on the bed. I thought I heard somebody, but I wasn’t sure. I didn’t get up. I said, ‘Nobody can’t get in because the door is locked.’ But they took the window out on the top porch, and they came in. When they came in, they was coming up the steps, and I thought somebody, you know, I saw his head, but he reared back so I couldn’t see it. I said, ‘Well, that’s just my imagination.’ So, uh, then before I knowed anything both of them had ran in. One jumped over the bed, you know, like crossing it, and he held me like that. He said, ‘We just come to remind you not to go to the police.’ I said, ‘Well, I’m not going to the . . .’ I didn’t tell him that. I was telling him like this here. I was nodding my head telling him I wasn’t going to go to the police. I wasn’t going to tell or nothing. The other one looked at me and said, ‘Cause if you tell anything, we’re going to come back for you. We’re coming back for you. We’ll be back.’ And they were doing like this here, and I told them I wasn’t going to tell.”
“Did you get a good look at them?” Sins asked.
“Yes.”
“Were they the same two people you saw out in the courtyard?”
“Yes, the same two.”
Sins asked some questions about the lighting outside, which Robertson assured him was good. Then he moved on to the light inside. “That night when they came in your apartment, did you have any lights on in your apartment?”
“Uh-huh,” Robertson said. “I keep my kitchen light on. I keep the bathroom light on, and the hall light. I always keep that on.”
“O.K. And that gave you plenty enough light to see the two people?”
“Right. The light . . . my bedroom [is] right here, and the bathroom was right there, and we were facing each other.”
“Do you recall what clothing they were wearing the night when they killed Elliot?”
“No, not really,” Robertson said. “I know one had on a pair of jeans. I know that for a fact because I seen his jeans. I couldn’t see the shirt.”
“How about that night when they came in your house a couple of nights later?”
“They didn’t have that on. He had something different on.”
“How long have you known Elliot?”
“I didn’t really know him.”
“Did he live around you?”
“Yeah, he . . . I stayed like in this driveway, and he stayed across the street in the next driveway.”
“What floor do you live on?”
“I was living on the second and third floor.”
“And the bedroom window that you were looking out of, was that on the second or third floor?”
“That was on the third floor.”
“Had you seen these two guys before, prior to this time?”
“I seen them around. I seen them, like, they be’s on the corner, standing on the corner where I go to the grocery at, the corner grocery store. All of them be’s on the corner and stuff, you know, sitting around sometimes. They be laughing and talking sometimes. Sometimes they be boxing, you know, different things.”
“Are these the same two people whose picture you picked out when the detective showed you the pictures?”
“Uh-huh, same two.”
Robertson said she saw the two men pass by beneath her window and then go around the corner.
“Did you actually see the shot fired?” Sins asked.
“No, I didn’t actually see him shot. I’m not going to say that.”
“That was around the corner?”
“Yeah, that was on the side [of the building]. I don’t know which one shot him.”
Sins tried to get a sense of the timing, but Robertson couldn’t recall how much time passed between the time they went around the corner and she heard shots fired. “After the shots were fired, about how much time went by before you saw them running back?”
“They ran right off,” Robertson said.
“Right away?”
“Uh-huh.”
“O.K. Sheila, now, think. When Elliot ran and the two guys were chasing him, did you notice any one of the two guys chasing him with a gun, or pull a gun out of his hand, while they were chasing him?”
“No.”
Sins asked if any of the grand jurors had any questions. Several did. “After you saw this, you didn’t go to the police right away?” one asked.
“No,” Robertson admitted.
“And then they came in and threatened you, and that’s when you decided to tell the police?”
“I told my mama what happened,” Robertson corrected. “So, mama told me to get in touch with the housing authority and see if they couldn’t, you know, get me out of that apartment so it would be safer for me. After I called the housing authority, and I talked to the lady, the secretary at the housing authority, that’s when she called the police and she told them that I called in and said that I knew what had happened.”
“Thank you very much for coming down here,” Sins said.
It was damning testimony.
The grand jury indicted Greg Bright and Earl Truvia with one count each on the second-degree murder of Elliot Porter. The trial would take place on July 29, 1976, seven months later.
At the time of his arrest in 1975, Greg Bright worked a series of odd jobs, sometimes in restaurants, mostly on the riverfront where he had a regular gig cleaning oil and other debris from the holds of barges. He could barely read, having dropped out of school in sixth grade to take care of his ailing father, and his knowledge of the law was nonexistent. He had no money to speak of. His mother worked at General Diaper Services, where she folded diapers and sheets for twenty-nine years. Greg sat in jail for months hoping he would get a lawyer, hoping the lawyer would come visit him, hoping the lawyer would ask what had happened, hoping he’d get a chance to explain to the attorney that he had gone to a bonfire at a local community college that night with a girl, that he’d gotten a ride with a friend, that the girl at the bonfire, the friend driving the car, and his mother at home would all attest to his whereabouts that evening. He tried not to worry; he had an alibi.
The court appointed a public defender named Robert Zibilich to represent Greg, a private attorney who worked part-time as a public defender while juggling his paying clients. All the public defenders in the city worked this way. According to Greg, his attorney never visited him in jail. An investigator visited him there once to ask some questions about where he was that night and that was it. Another lawyer, Greg says, stood up for him in court to enter his not-guilty plea. “I met with [my lawye
r] once before the trial at a motion hearing,” Greg says, explaining that this first conversation with his attorney took place after he sat in jail for approximately three months. (Greg’s attorney later disputed this, agreeing that he never visited him in jail but insisting that he talked to him several times at the courthouse when Zibilich was there to file motions.)
To his credit, Zibilich did file discovery motions promptly in January 1976, asking for any documents or information about the case. But the assistant district attorney’s response is essentially rejection after rejection of each request. For example, Zibilich asked for a list of witnesses that the state intended to call during trial. “Defense is not entitled to this information,” prosecutors responded. The defense asked for “any and all items of physical evidence or tangible property obtained from any person” whether via search warrant or otherwise that it intended to introduce during trial. “Defense is not entitled to this information,” prosecutors responded. The defense asked for “any and all medical reports of examinations conducted by the Coroner’s office for the Parish of Orleans reflecting the medical condition of the victim named in this indictment.” “Defense is not entitled to this information,” prosecutors answered. The defense asked for the rap sheet on the defendants “and that of any witness the State intends to call.” This information, critical in the case of the state’s sole eyewitness, Sheila Robertson, would be denied in the usual fashion: “Defense is not entitled to this information.” Finally, the defense requested all Brady material be shared. The 1963 Supreme Court decision Brady vs. Maryland requires that all exculpatory evidence be shared with the defense. That means any conflicting statements offered by witnesses, any information about a witness that impeaches their credibility, any police reports indicating alternative scenarios to the one presented by the district attorney, anything that could influence a jury’s assessment of guilt or punishment must be provided to the defense. Here, Bright’s attorney spelled it out to properly cover all the bases, requesting, “Evidence materially favorable to the defendant either as direct or impeaching evidence.” In particular, Zibilich asked for “[w]ritten statements or interviews reduced to writing obtained by the State through police investigative procedures from any co-defendant, accomplice, accessory, suspect or any other person having knowledge or information regarding the charge contained in this Indictment,” and so forth. This time the prosecution asserted: “State is not in possession of any.”
