by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
Meanwhile, the poor languish in jails. For example, on June 11, 2012, I spoke by phone to Willie Cheneau Jr., a thirty-two-year-old unemployed handyman who’d been sitting in Orleans Parish Prison for nearly two months, ever since his arrest for possession of a nickel bag of marijuana on April 24. The fact that this was his second arrest for possession bumped the charge up from a misdemeanor to a felony. Although he is very poor and qualifies for a public defender, Willie had no attorney assigned to represent him. His friend had been picked up in the same bust and merited a public defender, so Willie’s case was relegated to the now-defunct conflicts division. The judge set Willie’s bond at $1,000; to bail him out, someone would have to pay 13 percent plus fees, or $180.
Willie is single and had been living with his mother. When she was contacted by a bail bondsman to show up in court with the $180, his mom refused, according to Willie. She figured he needed to get his life together. “She tired,” Willie explains. “She tired of me. She’s turning fifty, all her children are grown. She’s been raising kids since she was sixteen, and she says, ‘Y’all grown—now I’m going to live my life.’” He isn’t angry with her for not coming up with the $180 bail, but he desperately wants out of the Orleans Parish Prison, where he’s housed in a tent with eighty-eight other inmates. “It ain’t no place to be,” he says. “There’s a guy in here trying to see the nurse. He hasn’t eaten in eight days, coming down off heroin. They won’t medicate him. Just stick him in here and make him go cold turkey.”
Willie doesn’t deny that he had the weed or pretend that he hasn’t been in trouble before. (As a teen, he was convicted of stealing a car and then, a few years later, on a burglary charge.) But he doesn’t understand why he should sit in jail for two months without being able to talk to a lawyer. He’d like to plead guilty to the marijuana charge—but he can’t even do that without a lawyer to represent him and get him into court.
Willie’s pretty typical of the people who flood the public defender’s office, and the folks waiting for attorneys to represent them. But his plight doesn’t generate a lot of sympathy.
Chief public defender Bunton has tried, but it’s hard to rally support for the program. The state is funding 53 percent of New Orleans’s budget for public defense, while the city pays 1 percent. “And the remainder we pray for,” Bunton says, explaining that the rest of the budget for the forty-seven-person office depends on traffic tickets and court fees or fines from the mostly poor folks processed by the courts here—a practice not unique to New Orleans, but one that makes the funding variable and unreliable.
Today, public defenders in the city represent more than 28,990 criminal defendants each year. But even as the 2012 Orleans Parish public defender’s budget shrank from $9.5 million to $7 million, there was an uptick in the number of cases prosecuted by the local district attorney: 30 percent more felonies alone than the preceding year (arrests during the same period held steady).40 The district attorney’s budget—$14 million—is far larger than the public defender’s $7 million, giving prosecutors a serious manpower advantage. Add to the mix the national economic crisis, the local public defender budget cuts, and new super-aggressive Orleans Parish district attorney Leon Cannizzaro, who has been criticized by public defenders for accepting more cases, overcharging for crimes, and bringing more defendants to trial—and the confluence of events produces a disaster.
Here’s what is supposed to happen: municipal, traffic, and criminal courts all collect fees from convictions. Every time a person is found guilty or pleads guilty, they pay a fee, and $45 of that fee goes to fund indigent defense in that jurisdiction. Also, ironically, they are charged a $40 application fee to apply for indigent status; this too goes to the public defender’s office. (While this could be viewed as an abrogation of Gideon and the promise of free counsel to the indigent, the fairly common practice goes largely unchecked.) If a district has an interstate cutting through, it can fund fairly robust indigent defense services by passing out speeding tickets to out-oftowners (area law enforcement is sensitive to sheriff reelection campaigns and treads lightly on locals), but if there is no interstate in the parish, the income stream slows to a trickle. Such traffic-based financing creates huge funding imbalances, and huge discrepancies in the quality of defense a client gets around the state. Worse, Bunton insists, is the fact that “there is absolutely no correlation between this [traffic- and court-fee-based] income source and a district’s criminal arrests—and many indigent programs across the state are severely underfunded.” A troubled urban district like Orleans Parish, which has a high volume of serious cases—eight hundred armed robberies, for example, in 2011—makes defense time intensive and expensive.41
There is also an inherent conflict of interest with a system that pays its public defenders from the kitty of fees and fines paid by those found guilty. Fees and fines can range from $35 to several hundred dollars. “How would you feel if you hired a lawyer and he asked you to sign a contract that said, ‘You only have to pay me if you lose’?” says Katherine Mattes, who directs Tulane University Law School’s Criminal Litigation Clinic. Mattes challenged this funding mechanism as conflicting with the Sixth Amendment right to counsel in 2006, insisting the amendment meant “conflict free” counsel. The trial court in two sections of Orleans Parish Criminal Court agreed. However, because the state’s attorney general never appealed the ruling up to the Louisiana Supreme Court, the impact was limited to two local courtrooms. Otherwise, it is business as usual. And that puts Louisiana’s public defenders in a jam. One public defender, who did not want her name used, says she regularly asked that her clients’ fees be waived due to their poverty. But under the budget crisis, the marching orders are different. “Now we’re supposed to say, make my client pay because that funds me and my salary,” she says. “That’s not advocating for the client, that’s advocating for us.”
Bunton, who in May 2012 found himself in the uncomfortable position of urging the state legislature to increase the indigent defense fee from $35 to $45 or face another year of budget shortfalls and layoffs, recognizes the conflict. “It put us in a trick bag where we need, in the short term, an additional infusion of money, but as a long-term solution to the question ‘how do you fund public defense?’ it’s a poor one.”
Even collecting the money owed poses big problems. In the last five years, the Orleans public defenders and the Louisiana Public Defender Board, created in 2007, have stepped up efforts to track the revenue stream—and discovered they’ve been shortchanged. “When you start pulling up these rocks, things begin to scurry,” Bunton says, and notes that they’ve ended up suing judges, auditing traffic court, and investigating collection procedures.
On December 20, 2010, the state and local public defender boards joined forces to sue twenty-three New Orleans judges in the Nineteenth Judicial Court in East Baton Rouge Parish for failing to assess the then-$35 fee from guilty defendants.42 State board chairman Frank Neuner announced the suit in a press release, declaring that he was reluctant to sue judges but, “If judges are not assessing the amounts that the Legislature intended, the costs of representation fall heavily upon Louisiana’s taxpayers.”
Then in May 2012, auditors hired by the Orleans public defenders discovered that Orleans Traffic Court had failed to give the public defenders their share of traffic ticket revenue. In the two-month window auditors investigated, the public defender’s office was shorted $84,000.43 Extrapolating from there, it could be owed as much as $500,000 a year for who knows how many years. The Times-Picayune reported on May 14, 2012, that “the judges also keep hundreds of thousands more for the court by reducing traffic violations to contempt violations or other tickets on which the court collects a fee for itself but isn’t required under state law to pass along money to other agencies.” The court disagrees and the battle is still raging.
Meanwhile, Bunton turned to the city council, itself strapped for cash. The public defenders banked on the city council to make up the shortfall, but
got squeezed between the state, which had cut their budget by $2 million, and the city, which said indigent defense was a state responsibility. Ultimately, the city council kicked in $1.2 million, but that left the office severely underfunded for the year, thus the twenty-seven people laid off.
“Now we’re back to square one, begging people for money so public defenders can do their jobs,” says Norris Henderson, of Voice of the Ex-Offender and Resurrection After Exoneration, worried about the recent backslide. “The criminal justice system can’t work without the defendant having an attorney.”
It was in this desperate context that, in February 2012, Criminal District Judge Arthur Hunter Jr. took the radical step of appointing a group of high-profile lawyers to represent thirty-two criminal defendants pro bono in his courtroom. These defendants were among the 543 people who were left without attorneys to represent them on the heels of the public defender layoffs. The judge, insisting that he was merely acting to appoint lawyers in this “constitutional emergency,” named state legislators, the head of the local crime board, and other high-powered attorneys—whether or not they had ever practiced criminal law.
Democratic state senator Karen Peterson learned that she had a twenty-two-year old client who’d been charged with possession of marijuana and alprazolam and possession with intent to distribute hydrocodone. She quickly filed a motion to withdraw from the case, according to the Times-Picayune: “I’ve never, ever appeared or represented anyone in criminal court. I practice commercial transactions.”
Many of those asked to take on these cases pro bono are attorneys at big law firms with expertise in civil suits, not criminal cases. Some of these private attorneys admit to being out of their depth—and several have contacted Mattes at Tulane’s law clinic for advice and assistance. “Having tax attorneys and property lawyers tackle criminal cases is far from ideal,” says Mattes. “You don’t ask the cardiologist to do your brain surgery.”
Other judges in the city have asked the laid-off public defenders to remain on their cases. But these are folks who are scraping by, having been laid off with only two weeks’ notice from a job where the annual salary was in the $40,000 to $60,000 range. It’s fair to wonder how much work someone in that situation will do when they’re ordered to defend a client without pay. (In fact, the laid-off lawyers I spoke with are ethical professionals and deeply committed to their work; one who consented to be interviewed on the condition that I not use his name, says he’s remained on several cases at judges’ requests. “I can’t afford to work for free,” he says. “But whether I’m rehired or working as a private attorney, I’m likely to be arguing a case in that judge’s courtroom in the future. I don’t want to burn any bridges with him.”)
Henderson insists that this breakdown in public defender services threatens the criminal justice system as a whole. “If you’re sent to battle with five hundred soldiers and find out you need five thousand, you’re going to take on a lot of casualties,” Henderson says. “You simply don’t have the same resources the other side has.” And prior to the reforms, there were a lot of casualties—thus, Louisiana’s extraordinarily high exoneration rate. Henderson, who is meeting with me in May 2012 at the Resurrection After Exoneration office, sweeps his hands around the room. The walls are lined with portraits of people exonerated in Louisiana in the last decade, and Henderson summarizes each of their stories, intimate and friendly with the men whose stories he tells. They are not statistics; he knew almost all of them in prison before he himself was exonerated after twenty-seven years. He gets to the oversize black-and-white photograph of a man in his fifties, his face gaunt and lined, and launches into the story of this man’s twenty-seven-year prison stint at Angola. Minutes later, this same man steps through the front door, ready to slink into the back office where he is doing some work for the organization. It is Gregory Bright.
“I didn’t want to concede defeat,” Greg Bright says today, casting his eyes back on his darkest days in 2000, his twenty-sixth year behind bars. “But I was kinda in a hopeless situation.”
Unknown to him, help was about to arrive from an unexpected quarter. In 2001, Innocence Project New Orleans opened its doors in Louisiana. The director, Emily Bolton, had just graduated from law school and launched the project with a fellowship from Equal Justice Works (for two years of salary at $32,000 per year) and a $10,000 grant from Columbia Public Interest Law Foundation for expenses. The project perched in borrowed office space, and relied on law student volunteers for extra labor, as Bolton was the only staffer. Once word got out about the project, it was flooded with requests for help from the state’s prisoners. Bolton decided they would exclude inmates on death row, since these men were already guaranteed legal representation, and accept cases only from prisoners who were sentenced to life. These “lifers” had no right to a post-conviction attorney. Speaking to me via Skype in May 2012 from her new home in England, she insists the difference between these cases is mere semantics: “After all, the lifers were going to die there, too, they just didn’t have a specific date set.” She figured her organization could tackle a very narrow class of people. “How about if we start with the smallest possible group, the innocent?” she thought. “How many can that be?” She was shocked. “Ha, ha! Turns out there was a lot.” There was “a huge floating mass” of folks serving life sentences in the state—4,900 prisoners—and within a year, 2,000 of them had sent letters to the Innocence Project asking for help with their cases.
Most of these pleas for help were not from prisoners saying they were actually innocent. Contrary to the mythology, Bolton says plenty of prisoners acknowledge their guilt—but ask for help with problems as diverse as an unfair sentence, denial of access to public records about their cases, or simply help ascertaining whether their mother is still alive when prison mail goes astray. But there was also a disturbing number of letters from prisoners stating that they were actually innocent. So Bolton turned for help to the sixty “counsel substitutes” across the state, the inmates who were, in essence, deputized to provide legal advice to other prisoners. “We took care not to make them the sole gatekeepers to prisoners reaching us with their cases, but as people who lived around the applicants; inmate counsel were giving me some insight as to whether this was the real deal or what,” she says. She recalls one inmate counsel mentioning Greg and Earl, who “had been boring the pants off their dorm mates for twenty-five years about their innocence.” Bolton asked for some information on the case, slowly collecting documents—while steadily cautioning Greg, via phone or letter, that she wasn’t promising anything.
In February 2001, she agreed to represent him at least temporarily in getting his case moved back into the section of court that it was supposed to be in. As she prepared, she delved deeper into the court papers surrounding Greg’s case. The more she read, the clearer it became that something had gone terribly wrong here. Meeting him for the first time that February, as the two of them walked down long courthouse corridors from the wrong courtroom to the reassigned one, she considered him. Greg was tall, lanky, careworn, soft-spoken, and shackled, shuffling along in his orange prison jumpsuit with a guard beside him. Bolton was short, white, young, fast-talking, and looked like a suffragette with her dark hair swept into a massive, loose bun as she hopped along beside him. “How do you feel about being represented by someone who was five years old when you went to jail?”
“Okay,” he said.
But he didn’t mean it. He wasn’t sure he trusted her. He wasn’t even sure he understood her. “I was just devastated,” Greg says describing their first meeting. “She has this heavy British accent and I could barely understand every other word she was saying, she just so excited and stuff.” He sweeps his hands up around his head, trying unsuccessfully to describe her “huge, big, huge, big thing of hair,” and admitting that her appearance alone left him deeply troubled. How was this petite British woman who looked like she stepped out of another century going to stroll into a Louisiana courtroom and take
on the Southern good old boys in a murder case? Like Clarence Earl Gideon before him, Greg was terribly worried about the efficacy of an out-of-town lawyer; unlike Gideon, he was poised to take a leap of faith.
His friends thought he was crazy. “That a crippled filly,” they warned. “You need a horse that would finish.” They were skeptical, Greg recalls, “because she a woman and British and she looking so timid and looking so like they’re going to walk all over her.” They repeatedly warned him. “‘Slim,’ they say, ‘don’t do it. Scrape you some change together and get someone else.’ But it ain’t always the strong, it’s not always the cannon that wins.” Could be some precision artillery was called for at this point. “I thought about it and talked about it and prayed about it. I mean, it didn’t make no better sense to try to hire someone than it did to let this woman take this case who had a genuine interest.” And really, it’s not like lawyers were banging down his door asking to represent him. “I told them guys, ‘You look here. I been in prison twenty-five years and in all this time this is the first time that someone has taken an interest in my case. I’m going to let her ride.’” He turned over more and more of the papers to her, the documents he’d painstakingly collected over the years. “‘Damn,’ she said. ‘Didn’t nothing look right.’” Here was something; that’s what he’d been thinking all these long years. He smiles: “She just took it and ran with it.”
