William Widmer for Al Jazeera America

New Orleans waitlist for public defenders sparks ACLU lawsuit

About 20 defendants in New Orleans are in jail without an attorney; ACLU aims to change state public defender funding

Darwin Yarls Jr.’s life changed forever when, according to police, he blew through a busy New Orleans intersection in a minivan and T-boned a car.

The crash, in late October, was so forceful that it threw his longtime girlfriend, Patty Spears, 50, into the street. She died almost immediately after the minivan landed on top of her, according to a detective assigned to the case. Later a toxicology report found cocaine in Yarls’ system.

Nearly two months after the accident, Yarls, 51, was arrested for vehicular homicide. Like 85 percent of New Orleans residents who are accused of crimes, he wasn’t able to afford an attorney and was appointed one by the Orleans Public Defenders Office (OPD).

Under normal circumstances, he and his lawyer would have started preparing his defense almost immediately, as Louisiana law dictates that even those who can’t afford an attorney are mandated representation by a public defender within 72 hours of arrest.

In mid-January, however, he became the face of a constitutional crisis in the New Orleans judicial system after the OPD refused to represent him, citing “an excessively high caseload” prompted by a $600,000 budget deficit, a hiring freeze and the attrition of 12 attorneys since July.

“The workload of these attorneys has been absorbed by existing staff,” wrote Orleans Parish Chief Defender Derwyn Bunton in a motion denying Yarls representation. “At this time, OPD cannot reallocate resources or staff in a manner that would allow OPD to continue operating and still provide constitutional and ethical representation to its clients.”

On Jan. 14, the American Civil Liberties Union of Louisiana, generally considered an ally of public defenders, responded by filing a federal lawsuit against Bunton in Baton Rouge. The suit was on behalf of Yarls and two other indigent defendants, Leroy Shaw Jr. and Douglas Brown, who were arrested in January and placed on a waitlist for representation.

Yarls, who was unemployed when arrested, has remained in jail since his arrest, unable to afford posting $75,000 in bail, said Brandon Buskey of the ACLU’s Criminal Law Reform Project. Yarls will have an attorney appointed no earlier than Feb. 16, the date of a status update hearing set for his case.

The complaint argues that by refusing to take these cases, the OPD is violating the Sixth Amendment, which guarantees criminal defendants the right to a lawyer, and the 14th Amendment, which guarantees due process and equal protection under the law.

“You’ve got people who OPD can no longer represent who have absolutely nothing and are having their cases refused,” Buskey said, adding that Yarls’ case is crumbling while he sits in jail waiting for a lawyer.

Darwin Yarls Jr. in his mug shot.

For instance, Yarls has no one to challenge bail conditions or negotiate prosecution for him — which a private attorney would likely do, possibly gain him freedom from jail. Without a lawyer to order an investigation, evidence could disappear. Surveillance videos from nearby stores could be wiped clean, for instance, or potential witnesses could start to forget facts.

“With every hour without an attorney, you may forever lose invaluable opportunities to build your defense,” Buskey said. “The damage to your case can be irreparable.”

Yarls isn’t alone, and without immediate recourse, the problem is only expected to grow, Buskey said.

The lawsuit was filed within a week of the announcement that the OPD would no longer take certain felony cases, and by then, seven people had already been arrested and put on a waitlist for representation. As of Thursday, Buskey estimated, 20 defendants remained in jail without an attorney.

Although the lawsuit targets Bunton as well as James Dixon, the chief state public defender, Buskey said the ultimate goal is to combat the “dysfunctional” state funding setup that mandates how public defender offices are paid.

In Louisiana the majority of local public defender offices’ budgets are cobbled together from defendants’ fines and fees, mostly from traffic tickets.

In the past year, cuts in state-appropriated funding, combined with a decline in revenue from local fees, have affected how those district offices can represent the poor. So far, four Louisiana parishes, including Orleans, have established waitlists for the indigent.

The OPD handles the vast majority of the city’s cases — serving more than 22,000 indigent clients last year — and needed 70 lawyers and an $8.2 million budget to “protects its clients’ constitutional rights,” according to estimates found by an American University report in 2006.

As of December, it had about 50 lawyers and a $6.2 million budget.

The unreliable funding scheme has led to emergencies like the one in Orleans Parish, forcing offices to resort to measures like refusing clients, according to Buskey and other lawyers behind the suit.

“We do hope in the end to help OPD and other defenders throughout the state,” he said. “We hope to ensure a guaranteed and stable funding system for public defenders so we don’t have these recurring crises every few months or every year.”

This wasn’t the first time the public was warned of impending constitutional crisis due to what Bunton termed an “unreliable” user-pay system.

During a December hearing with Criminal District Court Judge Arthur Hunter, Bunton made an unusual request for judicial mercy, asking the judge to stop assigning new indigent defendants to his office until the caseload crisis is resolved.

Ultimately, Hunter refused to grant the request, but not before several witnesses testified on Bunton’s behalf. They included renowned defense lawyer Barry Scheck, a co-founder of the Innocence Project.

He cited his own research on the effects of inadequate defense on wrongful convictions. “The failure to have an adequately funded defense team … not only endangers the innocent, but it undermines public safety,” he said.

On Thursday, Buskey said the expert testimony “speaks volumes” about what’s going on in Louisiana and elsewhere in the country. Similar lawsuits have been brought in the past year against public defense systems in California, Idaho and Washington.

“I think we agree wholeheartedly. The summary of the whole testimony is you can’t run a public defender system like this,” he said. “You can’t seriously call this a functioning criminal justice system.”

A week after the ACLU lawsuit was filed, Lindsey Hortenstine, the director of communications for the OPD, said it “comes as no surprise.”

“Any kindergartner looking at our criminal justice system — particularly our system of public defense — can see it is unfair. While this lawsuit is not necessarily welcomed, OPD welcomes reform,” she said. “It is our hope this lawsuit leads to lasting reform and a more fair, more just criminal justice system.”

Now Buskey said he’s waiting for Bunton’s office to get an attorney and make the next move. Ultimately, if a judge sides with the ACLU, the current public defense system could be found unconstitutional, forcing the state to overhaul public defense funding.

In the meantime, risks are high for Yarls, who has multiple convictions, including one for felony armed robbery. Given his history, the statutory maximum for his latest charge is 30 years in prison with hard labor.

Buskey said that when Yarls does get a lawyer, there are a number of questions that should be asked, such as why the defendant was arrested so long after the wreck and what exactly his toxicology report looked like.

“Those answers could be relevant to his ultimate defense,” Buskey said. “The real fear here is not that nothing happened, but this could be a case where he is not guilty of what he has been charged or he has been overcharged.”

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