by Marion Marks
“If you cannot afford an attorney, one will be appointed to you.”
Based on popular TV and movies, too many people believe this is how the system works. However, in the twilight zone of Louisiana, when the state can’t afford to pay a lawyer either, many citizens charged with crimes will be discovering that the jail will be a crueler place to be. The critical issue the public and taxpayers will be forced to face was discussed Thursday, April 21 at LSUS with statewide participants, and the only consensus seemed to be regarding the existence of the fact that the problem exists and will soon be more severe.
Those in attendance numbered less that a hundred, but a complete recording of the evening may be viewed HERE. Members of the panel were qualified to define aspects of the problem included:
Pamela Smart, Caddo Parish Public Defender
James T. Dixon Jr., Louisiana State Public Defender
Honorable Brady O’Callaghan, District Judge, First Judicial District Court, Caddo Parish
Honorable James E. Stewart, Caddo Parish District Attorney
Mark A. Cunningham, President, Louisiana State Bar Association
M. Thomas (Tom) Arceneaux, Shareholder and Director, Blanchard, Walker, O’Quin & Roberts
Moderating the forum was LSUS Chancellor Larry Clark and additional questions were directed by KSLA News 12’s Domonique Benn and Shreveport Times Executive Editor Alison Bath.
The budget catastrophe in Louisiana is taking a toll on the state’s public defender’s system just like everything else in the state budget. The lack of funding has forced 33 out of 42 offices to operate under what is called restrictive service. Pamela Smart, Caddo Parish District Public Defender, states that the Caddo Office is basically operating “on a wing and a prayer.” And, having to lock the door by the end of the year and cutting all services is a very real possibility. In Louisiana the majority of the funding for the public defenders office comes from traffic tickets and court costs, both of which are down statewide. Many believe it’s time for a complete overhaul of the public defender system to fix all the problems, and this is where the recent forum at LSUS addressed matters.
Louisiana is the only state in the country that relies on the use traffic tickets as the lion’s share of public defense funding, and those working in the indigent defendants say the whole system is just not working. For the past six years the legislature has provided the Louisiana Public Defender Board $28 to 33 million dollars or about half of that funding required to meet the current reduced funding for district offices, and traffic tickets and court fees are expected to make up the balance. In 2016 the amount provided by the state was $30 million, 75 percent of which goes to the localities, according to State Public Defender board president Jay Dixon.
Private attorneys have been assigned to work pro bono on many criminal cases, based on the needs in the system and lack of staff of the Public Defenders office. That means you could have bankruptcy, corporate or medical malpractice expert expected to defend a defendant for aggravated rape or drug trafficking cases. And in many cases, these non-criminal defense attorneys have little experience in this area of the law.
And the possibility that an inadequate defense is more likely to land innocent people in jail and the real criminals go free is a very real possibility. While potentially guilty, but uncharged criminals remain free to commit more crimes.
Dixon attended and participated in the Shreveport forum and also has participated in other meetings and forums across the state. Dixon paints a very bleak future for local districts as well as others across the state.
Previously Dixon stated, “In 2016, we are not going to be able to assist anyone, and … at least 19 districts we expect to be in restriction of services. They’re going to run out of money. We’re at the point now where it doesn’t matter what they do.”
One mission of the forum is to give information to citizens, judges, prosecutors, and police juries so that sooner rather than later the facts will be clear and those responsible for the public defense programs can look for any extra funding to keep the programs viable.
Public defenders believe their best hope is the legislature. Even with money tight in the special session, the funding gap will only get wider the longer it is ignored. Dixon believes a systematic overhaul of the program is required, otherwise they’re just buying time, one session at a time. Locally the Caddo Commission is required by the state constitution and parish charter to fund the district attorney’s office and the constitution requires that those charged with crimes must be provided a competent defense.
The Caddo Parish Public Defenders Office laid off three attorneys and a secretary in March, according to Caddo’s public defender Pam Smart and they lost two other attorneys who left to find work elsewhere. The remaining seven attorneys, five in district court, and two in juvenile court, handle up to 300 cases a month. Smart said the cases range from misdemeanors to serious charges like murders or aggravated rapes. Compensation for remaining attorneys has been trimmed to make programs viable.
The lack of adequate public defender funding ultimately costs taxpayers money and harms the image and the actual public safety.
Other forums throughout the state have covered issues that were not part of the Shreveport forum. Elsewhere it was stated that the Louisiana means of funding the Public Defender program is ultimately not sustainable, according to Louisiana Budget Policy Executive Director Jan Moller. “It seems like we are the only ones doing it, and if so, then we really need to question why we’re doing it this way,” Moller said. “Long term, it is going to cost the state more money. If people don’t have adequate representation, they are going to have higher chances of conviction and longer jail sentences.”
Moller added that parishes near an interstate — 13 of the 42 — garner a preponderance of traffic citations and don’t hurt the way some other parishes do. “It’s actually a matter of fairness. Your access to an adequate public defense should not depend on whether you live in a parish that has an interstate running through it,” Moller said. “This is a constitutional right. You have the right to be represented, and Louisiana is not living up to that mandate.”
Annual reports show the public defender board routinely has been awarded at least $30 million a year in funding. Approximately one-third of that amount is spent on capital defense cases, a fact pointed to frequently in the current debate about funding.
“Someone needs to question why there is no state money for locals when the state board has spent more than $100 million over the past decade on death penalty cases,” said E. Pete Adams, head of the Louisiana District Attorneys Association. “The question is, what is adequate funding? The state appropriation for public defense has gone up dramatically in the last ten years, and yet they are out of money. It’s a matter of priorities.”
Emily Maw, of the Innocence Project-New Orleans, said the issues facing public defenders offices are much bigger than the debate about capital defense funds. “You have lawyers who have over 200 cases,” Maw said. “It’s a distraction from the fact that we have the highest incarceration rate in the world. It’s not just about funding criminal defense lawyers. The state is having the wrong discussion.”
Maw said it is not humanly possible for attorneys with case loads into the hundreds to provide adequate representation to their clients. “When you have a caseload of 200, you are never going to have the time or the resources to go through every case in the detail needed.”
Keir Bradford-Grey, chief defender of the Philadelphia Defender Association in Pennsylvania, said that such high case loads create what she calls “assembly line justice.”
“You don’t feel like you’re serving justice at all, you feel like your job is scooping water out of a sinking ship and that’s not a great feeling,” Bradford-Grey said. “You don’t have the ability to represent someone the way you think justice should be administered. That alone causes pressure for the public defender or the defense counsel.”
Representing an individual without having had the time or resources to devote fully to a case increases the chances of convictions — and also wrongful convictions. Another avenue open to public defense attorneys is to encourage their clients to plead guilty — even if their clients assert they are innocent.
Rodney Roberts, an exoneree who spent 17 years in Jersey State Prison for a crime he did not commit, said his choice to plead guilty started with his public defender. “He had convinced me that the prosecutor was only putting this plea on the table for this particular day, for this particular moment. I felt so overwhelmed,” Roberts said. “Would I choose to plead guilty to a crime I didn’t commit and get home to my family and my son, or would I choose to enter a greater evil and maintain my innocence, and if found guilty, spend the rest of my life or the long term in prison?”
Maw said the Innocence Project-New Orleans has had 27 cases of individuals who were sentenced to life-without-parole for crimes they did not commit in the 15 years of the organization. All of the individuals were young, black males — and all of their initial trials lasted less than a day. As a whole, they served 559 years of their lives wrongfully behind bars, while those who committed the crimes remained free, Maw said.
Caddo’s public defender Pam Smart could think of two wrongful convictions in Bossier City in the past few decades: one was the 1990s case of Cornell Hall, a man who wrongfully spent 11 months behind bars on a wrongful conviction of first degree murder, and the other was the case of Gerald Needham, a man arrested and charged with three killings at a Bossier City appliance store whose charges for those crimes were later dropped.
Maw said many of those who plead guilty to crimes they didn’t commit have no idea how much prison time that lie could add up to– or the repercussions that time will have on their families and loved ones.
“Most of our clients who are wrongly convicted are young. Many have had young children– who have grown up without a father, who know that the Louisiana criminal justice system has put their father in prison for something he didn’t do,” Maw said. “We are creating generations of people who have no faith in the Louisiana criminal justice system.”
The ACLU filed a lawsuit on January 14, 2016 against the Public Defenders Board for not providing adequate counsel to clients. Several jurisdictions in Louisiana have received criticism when they stopped accepting new defendants in order for their attorneys to better manage their existing caseloads.
Several judges throughout the state have sought — or actually appointed — private practice lawyers to shoulder part of the overload. Mark Cunningham, president of the Louisiana State Bar Association, said such a practice is unfair on a number of fronts. In Shreveport he compared this to appointing road contractors to donate their time and resources to repair that state’s crumbling roads. Cunningham said criminal cases are extremely time-intensive– preparing for the case as well as representing such a case can easily consume 100 to 200 hours of a lawyer’s time.
“You’re asking a lawyer, basically, to take one month of his salary and give it to the state for free,” Cunningham said. “Most lawyers in Louisiana are solo, small firm, members of the middle class. Many lawyers in private practice also don’t have the background for it. The rules, the procedures, the nature of the cases is very different.” Cunningham added that most lawyers will do pro bono work, but the bar association’s position is that lawyers should be able to choose which cases they represent for free as well as those clients whom they feel competent in representing.
“The Bar Association is committed to indigent defense, but we’re opposed to appointments because of the threat to the public, to the judicial system and also to the legal profession,” Cunningham said. “There needs to be a recognition by the legislators that indigent defense is not an option, it’s an obligation.” Cunningham said the use of unqualified attorneys will add to Louisiana’s already horrific reputation of sending the wrong people to jail. “The more you use unqualified attorneys, there will be more appeals, cases more likely to be overturned,” Cunningham said. “You’re breaking down the criminal justice system.”
Tom Arceneaux, a local attorney with Blanchard Walker, estimated that more than half of the lawyers at his firm have no expertise in the complexities of criminal cases or any experience trying cases at all.
“We are appointing people who are competent in their fields, but criminal justice is not one of those. Real estate lawyers are being appointed to represent persons accused of felonies. They’ve never even tried a case, much less a criminal case,” Arceneaux said. “Very few lawyers have done any criminal practice. It’s only a small portion of the American Bar to provide that counsel. That seems to be an unfair burden.”
Smart said the 1st Judicial District is looking to collect more application fees, but that won’t cover the funding gap. Judges normally determine whether a person meets the criteria for indigent defense, but Smart plans for her office to look more closely at other client services that are up to the office’s discretion. Recent changes to employee benefits will also save the office about $170,000 a year.
Louisiana’s unique user-pay system of funding primarily through tickets and fines also has come under debate. “This is an opportunity to say we need to look at a lot of things differently, including having a user-pay system of funding public defense,” said ACLU President Marjorie Esman.
Louisiana Senate Bill 374, introduced on March 28, proposes the Legislature “appropriate sufficient funds” for the Louisiana Public Defender program, specifically to be spent among district public defenders based on the number of arrests in each judicial district. No more than 15 percent of those funds would be used for administrative fees or expenses under the proposed bill. Other proposed solutions include looking at mandatory minimums for non-violent drug offenses — such as marijuana use or possession. House Bill 103, for example, would reduce penalties and jail time for repeat offenders.
“Ideally, we should want a system that rehabilitates people so they can go back into the community, pay taxes, be self-sufficient rather than be in the revolving door of the justice system,” Burkhart said. Bradford-Gray added looking at the overuse of the criminal justice system for these types of crimes is an important starting point. “I think if we take a look at how we overuse the criminal justice system, we can start to look at ways to lower and reduce the people coming in. That way we can focus on the people we need to,” Bradford-Gray said. “The criminal justice system can’t answer to every act of human behavior.”
Caddo Parish is not the least able to absorb additional expenses regarding the public defender issues, but the crisis will only grow unless more creative methods are adopted to address the two-tiered defense system. The divide between these is only one more issue this fall’s elections have to address.