by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
What he hoped would happen with Peart was that the legislature would take decisive steps to fund public defense adequately. In fact, they made some funding increases but remained troubled by lack of sufficient resources. In 2007, legislators passed the Louisiana Public Defender Act, which created a statewide board to oversee public defender services in the state, and gave them a budget to disperse. But it remains terribly difficult to persuade the general public that this is a budget item worth funding. Politicians, then and now, recognize this is not a popular cause. “It’s difficult in America to talk about this, to really engage people in a conversation about public defense,” Judge Johnson says, explaining that even his own mother used to say back when he was lawyering, if they’re not guilty, how come they got themselves arrested? “That notion still prevails. People believe that individuals who go to jail ought to be there. You have that kind of stigma attached to those folks, but also those folks who are defending them.” That makes it hard to muster up the political will for reforms, especially when budgets are tight. “We have a state like so many in America that is having revenue shortfalls,” Johnson says. “So how do you make determinations? You look at all of the needs around the state, again triaging, to decide, whom do you fund first and foremost? Public defense is obviously not going to be that high up on the totem pole. That’s just the reality of that.”
How do you make the general public understand the value of the right to counsel for the poor? Johnson says you have to make it personal for people, to say, “let’s talk about your own life and your family and community and those you know and love—and invariably you find, regardless of their station in life, that they have friends or family who have gone through the justice system.” He says he asks these questions: “Should they be represented by someone who can’t even go and speak to them in jail, interview them, think about them?”
Pair that educating with the force of the law, he says, which is what he tried to do with State v. Peart. The way he sees it, “changes in the law don’t happen because a case is filed, but because there is a bubbling up of things.” Around the country now, that bubbling is beginning to happen. “It takes one case and then another case and another [challenging the system]. That’s how we finally get to Gideon because of lawyers constantly pushing the envelope and making judges deal with these issues, until finally there are the right facts and circumstances and you get that landmark decision.”
Seen that way, Peart is one tiny bubble that rose to the surface and everyone in state and local politics could see it. And the decision, demanding that the legislature do its job and fund what is constitutionally required, flowed seamlessly out of Johnson’s life history. Johnson, growing up as a black man in the South in the fifties and sixties, was intimately acquainted with the way the law was used to force change. His father was a plaintiff in a lawsuit filed by Thurgood Marshall in 1949 to equalize teachers’ pay in Louisiana and a plaintiff in lawsuits to integrate schools. Johnson himself met Thurgood Marshall when he was eight years old and figures he met “damn near every black lawyer in Louisiana in my living room” during those years. He laughs, “not that there were that many.” His dad was the third black man to register to vote in Plaquemines Parish, Louisiana, a feat he accomplished by having the woman with the finest minute handwriting in the community transcribe the Bill of Rights up his hand; he could recite it, even if his memory failed during the voter test requiring it. Judge Johnson himself was arrested and convicted of inciting a riot in 1964 when he was seventeen, after a civil rights protest—inadvertently proving his point that one doesn’t have to look too far to find someone who has been jailed, hauled into court, and desperately relied on the skills and attention of a lawyer.
Greg Bright was finally released from prison on June 23, 2003, thanks to the herculean efforts of a team of lawyers who, working for a tiny nonprofit, randomly stumbled on his case and agreed to work his appeal. According to the parameters established by Gideon, he had been given a lawyer for his initial trial. But regardless of how ineffective his counsel was, he had no right to an attorney to represent him in most of the complicated legal processes that followed. The fact that there was no possible way for him to do the legwork necessary to investigate the case—visit the crime scene, interview witnesses, secure documents, obtain witness rap sheets, consult psychiatric experts—is considered inconsequential by the government. Making matters worse, Louisiana joins Michigan, Arkansas, and Washington in limiting felons’ access to public records, including police reports and DA files. While the federal government recognizes the absolute necessity of a lawyer for appeals in the federal courts, at the state level, where most cases are tried, there is no such right. In Louisiana, prisoners have this right if they get a hearing—which usually means the judge assigns the court public defender to do it on the fly, or a private lawyer unfortunate enough to be in the room at the time. But in federal court, an inmate will get dedicated counsel for a hearing that will do more than this, thanks to a much better funded federal public defender system.
What this means is that we as a public assume our justice system is foolproof and never errs. Or if it does, the indigent client who is convicted ought to be able to navigate the appeals process on his or her own.
If Emily Bolton and Innocence Project New Orleans hadn’t taken on Greg Bright’s appeal, he likely would now be looking at his thirty-seventh year in jail for a crime he didn’t commit. Bolton wonders how many more like Greg are out there. Within a year of opening their doors in Louisiana, Innocence Project New Orleans had received more than two thousand requests for help with appeals from the guilty, the innocent, and the vast swath in between. The organization exonerated twenty-one clients. It has taken a decade, Bolton says, for legal representation for post-conviction appeals to evolve from “just a fuss to a credible fuss to a fuss which we must do something about.”
Meanwhile, New Orleans is backsliding on providing the most basic right to free counsel for the poor in the original criminal case as well. As the summer of 2012 drew to a close, Willie Cheneau Jr., the man arrested and jailed for marijuana possession, was finally appointed a lawyer, who promptly got his charge reduced from a felony to a misdemeanor. Willie pleaded guilty to possession of marijuana and was released within two days—after two months in jail. Clarence Jones finally got a pro bono attorney who specializes in tort, product liability, construction, and insurance law. The attorney, Kirk Gasperecz, said that he was already “up to his armpits in alligators” at work, but nonetheless agreed to take Clarence’s case when a local judge told him Clarence had been sitting in jail for more than a year. Gasperecz says he will work closely with colleagues who have criminal experience to get Clarence out of prison. Also, the Orleans Parish public defender’s conflicts division was finally revived in August, but is struggling along with only three attorneys.
A weak public defender system has societal impact above and beyond the personal impact on folks who are wrongly convicted and spend years of their life behind bars. Katherine Mattes, of Tulane’s law clinic, calls it the “trickle-down theory of community safety.” “The public defender system is one of the most important public safety systems we have—a strong public defender who challenges the prosecutor ensuring that the prosecutor can make his case, forces the prosecutor to make sure that the police are investigating and making solid arrests based on evidence, not bias, attitude, or laziness; this in turn leads to a safer community,” she says. “In a community without an effective public defense system, as has been the case for decades here in New Orleans prior to Katrina, the prosecutor doesn’t need to worry about whether his cops are bringing him well-investigated, solid cases, and if the prosecutor isn’t worried, then the police have no systemic incentive to investigate thoroughly and confirm that their arrest is solid. I think it’s essential for the public to understand this relationship between effective, well-funded public defense systems and their own safety.”
Case in point? Whoever killed fifteen-year-old Ellio
t Porter remains on the loose.
Today, Greg Bright, fifty-six, sits on the cement porch of his yellow clapboard house in New Orleans’s 7th Ward and rests his hand on the head of his yellow dog, Q. It is 2012, and he often finds himself musing over the notion of time—time past, time lost, time wasted. “It feels like a minute since I been out here,” he says. It took some time to adjust to life on the outside, he admits, and once, on a dark, rainy morning as he found himself biking seven miles in the rain to his miserable job working the line in a chicken plant in Mississippi, he felt real despair—just recognizing that he was forty-seven years old and had never owned a car. He tried hard to dismiss the sobering thought that, arrested at age twenty and doing twenty-seven years of time, he’d been “seven more years in prison than I was on the streets.” Sometimes, he says, “it’s little things like that” that really threaten to drag him down into sorrow.
So he chose to do something that both keeps those wasted years fresh in his memory yet also mitigates the sense of powerlessness he sometimes feels. He helps to educate others in the hopes that his story will spur reforms. He is not an educated man—his formal schooling stopped in sixth grade—but he is one of dozens and dozens of ex-cons who form a vital link in the post-Katrina criminal justice reform efforts through various organizations such as Resurrection After Exoneration, the aforementioned holistic reentry program for ex-offenders, and Innocence Project New Orleans. Greg tells his story to students, activists, politicians, church groups, friends, strangers—anybody with time to spare and an inclination to listen—doggedly putting a face on an abstract idea, injustice.
On this particular afternoon in May 2012, he tells his story to me. For a fourth time. He is deeply preoccupied with the judge who repeatedly denied his requests over the years (the same one who was on the team prosecuting his murder case in 1976). The very month that Greg was released in 2003, the judge died. Greg goes into his house to retrieve the judge’s yellow and tattered obituary that he has kept these nine years. He reads it—as he has done hundreds of times. The obituary, like all obituaries, says nice things.
“The judge may have been a good man,” Greg muses. “He might have been a good husband, a good father, a good friend to many people—and I’m sure he was. But people may be saying the same thing about me.” Q, the dog, who lies panting at Greg’s feet, lifts his head for a moment to look around, as if considering the matter. Then he lowers his head to rest his muzzle on Greg’s shoe. “But because I’m not a lawyer, but because I’m the little guy, man, you step on my head and crush me. I don’t have money or influence or even God on my side.” Interestingly, he saves most of his venom for the judge and the old boys’ network that got him a lawyer, but one friendly with the judge and disinclined to even work up a sweat when it came to Greg’s case. Gideon guaranteed him an attorney, but a flawed indigent defense system and a lackluster lawyer rendered that almost meaningless. “But why?” he says. “You know, why? Sometimes I think about it.” He wonders what the solutions are to the troubled criminal justice system here, to the high incarceration rates in the black community, to the racism and power imbalance. He talks on and on, indignant, furious, rambling—but right. He grows heated. Mostly he wonders how one draws attention to these problems, how change happens. “Sometimes I think about, what is it? This Mahatma Gandhi thing, this passive resistance,” he says. “They crack your head to the skull. You get up and say to the man, ‘Thank you.’ He cracks your head again. You got to be an animal to continue that. That’s what I felt like the judge was doing to me every time I came forward. It’s an outrage.” He pauses, inhales, collects himself. “But I’m not talking from bitterness.” He says this, and yet, how can he let go of bitterness? Like a dog licking a wound, keeping it open and raw, Greg Bright revisits his past, alternately trying to decide whether he—and the city of New Orleans—get to have a happy ending or whether their shared story is a tragedy. Is it a happy ending because he now sits on the porch of the modest little yellow house he owns in New Orleans’s 7th Ward—“my pot of gold at the end of the rainbow,” as he once called it after finally receiving $190,000 restitution in 2011 for being wrongly imprisoned? Or is it a tragedy because he wasted twenty-seven years of his life behind bars?
The criminal justice system in New Orleans—indeed, the nation—seems similarly poised between plot twists, an ending that could go either way.
CHAPTER 4
Rodney Young at his capital murder trial in February 2012. The jury had to decide whether his school years in special ed meant he was “retarded” and thus ineligible for the death penalty. Photo courtesy of The Covington News.
DEATH IN GEORGIA:
A CAPITAL DEFENSE
At 11:20 P.M. on the night of March 30, 2008, a 911 operator in Covington, Georgia, took a call.
The woman on the other end of the line was sobbing—almost unintelligible—as she stood at the end of her driveway in the eerie pitch-black silence of a warm spring night. The operator tried to calm her down, get some information.
“What’s the address?”
“Sixty-five Benedict Drive,” the woman said. “My son is in the house. He tied up to the chair. I just came home for work . . . I don’t know. Help me, Lord. Help me.”
“Ma’am—”
The woman’s sobs interrupted her.
“Ma’am, you came home and your son was tied to a chair?”
“Yes.”
“How old is he?”
“Twenty-eight.”
“Is he hurt?”
“Yes, yes. He’s out.”
“Sixty-five Benedict?”
“Yes, please help. Please help.”
“Your name?”
“Doris Jones. Help! Oh, God. Oh, God. Oh, God.”
“Did you go in the house?”
“Yes.”
“Did you see any blood?”
“Yes, all over. Oh, God. I need help.”
“What kind of vehicle are you in?”
“A Chrysler. I been calling him all day long.”
“You been calling all day? When was the last time you talked to him?”
“This morning.”
“This morning?”
“Yes.” Doris Jones began moaning, sobbing.
“Talk to me,” the operator says.
“I can’t go back in—”
“Don’t go back in! Just stay right here and talk to me. They are on their way.”
“Can’t you please hurry up. I’m scared. Oh, Lord. Please God, I need someone to help me.”
“What’s his name?”
“Gary Jones.”
The operator tried to calm her, to keep her talking, her questions now on repeat. “How old is he?”
“Twenty-eight . . .”
“Ma’am, is anybody else there with you?”
“No, I open the door and everything is knocked off . . . the chair . . . he there . . . he still has his church clothes on.”
“Where are you?”
“I’m across the street. I’m so scared someone still there. Oh, God.” Doris Jones’s primal terror fueled her voice. It rose and swelled and spilled out into the night in a gulping horror at what she’d seen.
“Hold on,” the operator says. “There someone I can call for you?”
“My family all in New Jersey.”
“A friend?”
“I can’t think of anybody right now. Help me, Lord. Help me, Jesus. Oh, Lord, help me. Tell them to hurry up and get here. Oh, Lord, tell them to hurry and come.”
“They are coming.”
“. . . Last night when I came home from work, he called me and said . . . the window broken. . . .” She remembered that he told her the window in the laundry room looked tampered with, as if someone had tried to break in. She remembered that they found the window’s screen tossed in the woods at the edge of the house. She remembered that he was concerned about a robbery. “Oh, oh, Lord, help me . . .” Doris spied a police cruiser approaching. “They’re here.�
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“They’re there?”
“Yes.”
“They see you?”
A cop approached Doris. “Listen. Stay right here.” He asked about the situation, her son inside. “He in trouble?”
“I don’t know. I think so. He been there all day long.”
The line to the 911 operator goes dead.
Cops rushed the home she shared with her son. They found his body, bloody and battered, tied to a chair.
Gary Jones was dead.
Four years later, in February 2012, Doris sits in a Covington courtroom testifying against the man accused of murdering her son. Her ex-boyfriend, a forty-four-year-old African American from Bridgeton, New Jersey, named Rodney Young, is on trial for Gary Jones’s murder. Doris, also African American, had dated Rodney for seven years; the romance had gone sour several months before the murder and she had fled New Jersey to live with her son in Georgia. Prosecutors allege that Rodney killed Doris’s son in order to get to her, to scare her back into his arms by making her think that roving, violent gangs were out to get her in Georgia. Rodney was extradited from New Jersey, hauled down to Georgia, and faced the death penalty.
