New Orleans public defenders to judge: Stop assigning us new cases

NEW ORLEANS — It was early October, and Alvin Parker was on suicide watch at Orleans Parish Prison. He had been there for weeks, unable to make bail or see his overworked lawyer.

The 28-year-old schizophrenic had recently relapsed. It was triggered, he said, when he was booked and guards didn’t give him the prescription medicine he had been taking since 2005.

“When I don’t take my medicine, I feel suicidal,” Parker said during an interview at the Orleans Public Defender’s office. “I can’t sleep. I’m up for days and days, like in zombie mode. Something is wrong with me.”

Parker spent more than two months in jail for spitting on an emergency medical technician, a misdemeanor assault charge that mandates just 15 days. But his lawyer, public defender Maximilian Gumina, said he was so overwhelmed with cases that by the time he could advocate for his client’s release, Parker had been behind bars for about a month.

About 85 percent of people charged with a crime in New Orleans are represented by public defenders, because they can’t afford a private attorney. With more than 20,000 indigent clients a year, the Orleans Public Defenders office needs 70 lawyers and an $8.2 million budget to “protects its clients’ constitutional rights,” according to a 2006 American University report.

Yet while the office handles the vast majority of the city’s cases, it has about 50 lawyers and a $6.2 million budget. Fewer lawyers means bigger caseloads for attorneys and less time for individual clients like Parker.

And the situation will likely get worse next year. Projected budget cuts of about $700,000 will further strain the defenders office, increasing case processing time, jeopardizing everyday court proceedings and potentially causing “constitutional crises” for the local criminal justice system, according to Orleans Parish public defender Derwyn Bunton.

At a hearing with Criminal District Court Judge Arthur Hunter on Friday, Bunton made an unusual request for judicial mercy, asking the judge to stop assigning new indigent defendants to his office altogether until the caseload crisis is resolved. His office was unable to accept any more clients without compromising the system as a whole, Bunton explained.

On Monday, Hunter ruled that the court couldn’t offer a remedy until the office officially notified the court that it couldn’t take additional clients, and that he would revisit the issue in December. Further, he said any remedy could only apply to his section of the court. There are a dozen in the courthouse, each with its own judge presiding. 

Several witnesses testified for Bunton, including renowned defense lawyer Barry Scheck, co-founder of the Innocence Project. Scheck cited his own research on the effects of inadequate defense on wrongful convictions and told Hunter that if he stopped assigning cases, other judges might follow suit and not penalize public defenders who don’t take new clients.

“It literally calls for defenders and judges to step forward together on this,” Scheck said. “The failure to have an adequately funded defense team … not only endangers the innocent, but it undermines public safety.”

One of the problems, advocates say, is the way public defenders in Louisiana are funded. Across the state, defendants largely fund their own defense, in what Bunton calls an “unstable and unreliable” user-pay system. Fines and fees, mostly from traffic tickets, make up the majority of budgets.

Gumina, for one, thinks the system is broken. His clients — like Parker — spend months in jail that they shouldn’t, he said. In addition, they are often arraigned without counsel present and sometimes plead guilty when they didn’t do anything wrong.

Now, without lawyers to file motions for them, conduct hearings or represent them at trial, cases could grind to a halt. In the worst-case scenario, defendants could be let out of jail entirely, said James Dixon, who oversees the state’s Louisiana Public Defender Board, which doles out money to local offices. 

Looking back at Parker’s case, Gumina said he feels guilty that he couldn’t better advocate for his client. By the time he was let out of jail, Parker said, he had been threatened by inmates, Maced by jail staff and had picked up another misdemeanor charge for spitting on a guard. 

The scene in municipal court was hectic on a recent Monday by 8:45 a.m. More than 50 defendants filled the room. About half of them were inmates wearing bright orange jumpsuits, with shackles around their ankles. Gumina was seeing all of them for the first time that day. He didn’t have time to prepare his clients before meeting them in the courtroom. And as soon as they all arrived, a city attorney started the hearings. 

Ultimately, Gumina got an average of seven minutes with each client, steps away from the municipal judge, before he argued their cases. 

Among his clients was 22-year-old Leronisha Williams, who was charged with disturbing the peace. By the time Gumina met her, she had already pleaded not guilty, which he advises his client not to do without consulting him first. 

Gumina was in the room when she was arraigned, but was busy dealing with another defendant. Too frequently, he said, he misses the chance to properly represent his clients, even when he’s just feet away. 

“It’s messed up,” Gumina said. “She should have been told she had a right to an attorney.”

During a short meeting with Al Jazeera America and Williams outside the courthouse, Gumina was blunt. He described what he calls a “triage” system of representation in which clients charged with the most serious crimes get first priority.

“Until I get more information about your case, there’s not a lot I can do for you,” he told Williams. “I have to deal with people in jail first.”

Since 2005, when Hurricane Katrina barreled through the state, crippling local infrastructure, a lot has changed in Louisiana. But, some argue, not enough. For one, it remains the only state in the nation that relies mostly on traffic tickets and forfeited bail bonds to cover public defense.

As Bunton pointed out, public defender offices have no control over these revenue streams, their collection or disbursement.

“It’s inadequate, unstable and unreliable,” Bunton said. “That structure is a fundamental problem when it comes to resources in public defense and in our system generally.”

Cuts in state-appropriated funding, combined with a decline in revenue from local fees, has affected district offices across Louisiana. And a 2014 comparison of districts shows how arbitrary the revenue system is and how little it correlates to the needs of lawyers. In St. Charles Parish, for example, traffic tickets and court costs were more than enough to cover the $1.4 million public defenders office budget in 2014. Because of the eight major highways crossing the parish, no state funds were needed to cover its 2,075 cases.

But neighboring Orleans Parish only had $3.7 million come in from local revenue, which was not enough to cover the 22,000 cases the office handled. Put another way, St. Charles Parish got $675 per case from local fees, while Orleans Parish got just $168 a case.

This year, the city of New Orleans pledged $1.5 million to the public defenders, but about $6.5 million to the district attorney’s office. In fact, the public defenders’ budget pales in comparison with the DA’s, which is about $12 million and supports 90 lawyers. 

In other words, the defenders take 85 percent of the DA’s cases but get about half the total funding.

This distribution of resources is unfair for defendants, said William Snowden, an Orleans public defender who works in the city’s criminal court. Too many clients from his 117 current cases will sit in jail for up to 60 days while waiting for him to move their cases forward. Sometimes his clients get so impatient they plead guilty just to move the process along.

Others stick it out and contribute to the state’s bloated criminal justice system. Advocates repeat a well-memorized fact in Louisiana: In 2015, the state had the world’s highest incarceration rate. 

“It’s very frustrating,” said Snowden. “It makes you think you’re so powerless to represent your clients.”

This system has crippled New Orleans’ public defense before. In 2012, the city and state slashed funding, leaving the office with a $2 million shortfall. Bunton laid off 27 staffers. The media called it a bloodletting.

In response, Judge Hunter called a special hearing. He demanded that private lawyers start taking public defense cases pro bono. Lawyers with local media outlets were forced to serve, as was Louisiana State Senator J.P. Morrell. 

It was a case of déjà vu in Hunter’s courtroom during Friday’s hearing, which continued Monday. Among those who testified was Ellen Yaroshefsky, a professor with the Benjamin N. Cardozo School of Law at Yeshiva University, who called the inadequacies of the Orleans Public Defenders office a “systemic problem.”

“To call this a justice system is really a misnomer,” Yaroshefsky said. “If we’re going to accept a system where we’re just processing people and keeping people in jails and prisons without providing counsel, we’re certainly letting down the profession and letting down the public.”

Bunton agreed. 

“What some people don’t realize is that the criminal justice system, albeit dysfunctional, it is in fact a system,” Bunton said. “And so, to the extent that one part of it cannot operate, it all falls down.”

What’s most frustrating about the budget shortfalls now, advocates say, is that New Orleans has worked so hard to build a reputable public defenders office from scratch over the past decade. Its creation has been called “one the most substantial reforms” implemented after Hurricane Katrina. The office attracted talented lawyers eager to work in New Orleans, and they got new computers and a case management system. 

Before, a network of private attorneys had cobbled together an arrangement in which they represented poor defendants part-time. The Southern Center for Human Rights found that those lawyers didn’t visit crime scenes, review evidence, interview witnesses, do legal research or even prepare for trial.

Then, when the state public defender board was created in 2007, the New Orleans office started getting state money in addition to local revenue. The New Orleans City Council pitched in, too, and by 2011, the Orleans Public Defenders office had a $9 million budget and a staff of 115, with 70 lawyers.

Now, with cutbacks looming, Dixon, the state public defender, testified that the system is headed back into dysfunction. He said that the New Orleans office is one of eight statewide that are on the brink of curtailing services.

“The idea was, you need to lift the level of public defense, which has been done. We improved tremendously in the past six, seven years, and now we’re sliding back,” Dixon said. “That’s what’s really frustrating, is we’re just watching that slide back.”

John Burkhart of the Louisiana Campaign for Equal Justice predicts that the U.S. Department of Justice will have to monitor the state’s public defenders program if the state legislature can’t figure out a way to secure more viable funding, with the threat of civil rights lawsuits if reforms aren’t met.

Hunter said he would revisit Bunton’s request on Dec. 11. In the meantime, stakes for those facing prosecution are high. Nonviolent crimes, considered misdemeanors elsewhere, can have serious ramifications. Marijuana possession can become a felony if a person is charged twice. Three nonviolent crimes, like car burglaries, can mean life without parole. 

As Gumina puts it, inadequate defenses can ruin lives.

“You are talking about people who are severely struggling,” Gumina said. “It shouldn’t be about the fast-food version of justice.”