Judges' Order Defies Law, Reality

    Nov. 24, 2006
    Times-Picayune
    Opinion
    By James Gill

    This one is for the benefit of the Orleans Parish Criminal Court judges.
    They are sorely in need of help with both the law and the facts. That may not be exactly news, but the issue this time is so important that it behooves us to put them right.

    According to a court order issued Monday, "It is the collective opinion of the undersigned judges that the failure of the Orleans Indigent Defender Program/Orleans Public Defenders Office to deliver effective assistance of counsel to their clients is in large part due to the policies and practices that it has recently implemented."

    If that is their collective opinion, then the judges must be off their collective onion. Indigent defense in New Orleans has been scandalously ineffective for decades, and the fault in large part rests with the judges.

    The reforms "recently implemented" have been called for in every independent study of our criminal justice system. The judges, deliberately or otherwise, are distorting the facts.

    Their grasp of state statutes is similarly lacking. Their order threatens to hold members and staff of the indigent defender board in contempt if they don't hire more attorneys by Dec. 1.

    Judges appoint members of the indigent defender board. But the law forbids them "to participate in specific management decisions."

    No ambiguity there. The judges have no right to stick their noses in.

    Judges have been sticking their noses in for so long that the habit must be hard to break. But break it they must, for their interference has made a mockery of indigent defense in New Orleans and denied justice to generations of defendants. This time they are interfering not only in defiance of the law and the facts but of economic reality.
    Right now one indigent defender is assigned to each of the court's 12 sections, but the judges are ordering two. There is no money to pay the extra salaries and the judges do not deign to suggest where it might be found.

    It is impossible to avoid the conclusion that the judges want to bring back the system as it was before Katrina forced its inadequacies to the forefront, leaving countless jail inmates, mostly facing penny-ante charges, scattered throughout the state, forgotten and with no access to attorneys. The indigent defender board, though its offices did not flood, had no records to help locate its clients.

    This was hardly surprising, since the system was evidently designed to serve the convenience of judges, many of whom like to quit work early in the day, at the expense of indigent defendants' constitutional rights.

    The shortcomings of the system have been catalogued countless times, most recently by the National Legal Aid and Defender Association, which found that public defenders in New Orleans "handled too many cases, with insufficient support staff, practically no training or supervision, experienced undue interference from the judiciary, all the while compromising their practices by working part-time in private practices to augment their inadequate compensation."
    An earlier study conducted under the auspices of the Justice Department reported, "There appeared to be little accountability within the office. There were no client files or any other records or data."

    The indigent defender board, pre-Katrina, was chaired by Frank DeSalvo, who doubled as attorney for the police association. The judges appointed its members as they saw fit, ignoring the law that requires candidates to be nominated by the bar association. It was virtually unknown for the part-time attorneys representing the poor to conduct any kind of investigation. There is no telling how many innocents have been imprisoned as a result.
    After the storm, the judges turned over a new leaf and appointed a new board legally. The new board promptly decided that indigent defense should be a full-time job.
    That is clearly the only way to provide adequate representation. Perhaps that's why several of the judges don't like it. The bench, being heavily weighted with former prosecutors in the railroading administration of DA Harry Connick, doesn't lose much sleep over civil rights.

    The indigent defender board, according to the Justice Department study, needs $8.2 million a year, not counting computer equipment, to do its job. It currently has about $2.5 million a year.

    As Arthur Hunter, one of three judges who declined to sign the order, observed, its premise is bogus. Even at Tulane and Broad, the facts and the law must eventually count for something.



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