The Right Questions on Indigent Defense

    Dec. 4, 2006
    Times-Picayune
    Opinion, By Dwight Doskey

    Tolerance levels on all sides at Tulane and Broad's criminal courthouse have dropped to record lows. Judges don't like the public defender's administration, the public defender's administration doesn't like interference from the judges and no one likes the district attorney's office. And that's on a good day.

    All sides, however, have an interest in ensuring that indigent defendants have adequate representation. As the U.S. Supreme Court has repeatedly said, it is not access to the courthouse but access to justice which is owed to every citizen, and judges must enforce this right.

    But on a gut level, the question is how much money would you spend to defend someone you don't know and think is probably guilty. That's the way legislators believe their constituents are phrasing the question.

    For the three decades I was a public defender, the answer was "not much."

    The current Board of the Orleans Defenders Program recognizes that it does not have the funds to provide quality representation to all indigents. It is attempting, through such means as limiting caseloads, to restrict the number of defendants to whom any one attorney is appointed, and then providing more focused representation to those defendants.

    The board as a whole believes that limiting its caseload and highlighting the plight of those it leaves sitting in jail without representation will either convince or shame the Legislature into appropriating more money for the public defender system and for the criminal justice system as a whole.

    For three decades, I confined my fight to the courtroom, convinced that the Legislature would feel a moral obligation to increase funding. The Legislature did not. The Louisiana Supreme Court has responded for the last 15 years by threatening over and over to take decisive action -- without ever doing so.

    However, the board's statutory duty is to figure out how to represent all the indigents all of the time, not some of the indigents some of the time. While the current strategy may be for the best in the long run, in the short term all indigents still need to be represented.
    The board surely agrees that it should stretch each dollar of its limited funds. The judges simply think that the board is not spending its money wisely. The judges are frustrated by the slow pace of the renaissance, but have little power to force any one course of action upon the board.

    The judges agree that the eventual hiring of a training director and a special litigation director are wise moves, and that offices with some privacy to interview clients are necessary now. The questions judges are asking -- and which we should all ask -- are about the priorities set when all parties agree that money is short.

    The questions include whether it is wise to hire an Atlanta-based recruiting director for $42,000 a year when the program says there is no money to hire attorneys. Is it wise to hire contract attorneys for defendants facing the death penalty, when that costs more than twice as much as having qualified attorneys on staff?

    If the job specifications for a training coordinator ask for someone "readily available as much as possible throughout the day," someone who "will be required to maintain regular weekly office hours, as well as provide weekend, early morning and evening coverage," why pay $95,000 and commuting costs for a training coordinator living in Atlanta?

    If a blueprint for rehabilitating the office already exists in innumerable studies, then why pay $100,000 to a part-timer commuting occasionally from Connecticut to review the blueprints?

    The new board did not question the competence of the prior public defenders, keeping on each and every one who wanted to stay. Many of these receive salaries that cost the program only $60,000 or less each year, including benefits.

    If competent attorneys can be found for that cost, but the complaint is that there is no money, how can the board deem the out-of-state recruiting director, training coordinator and adviser to be greater priorities than hiring attorneys to represent the unrepresented?
    Each of us should examine the priorities set by public officials. Each of us should demand that the Legislature allot more money to public defense.

    While the judges may not have any more right to order specific changes than would private citizens, they have the right and the constitutional duty to question priorities when faced with the claim that not all indigent defendants can be represented.

    *Dwight Doskey is a former indigent defense attorney in New Orleans. He lives in Covington. His e-mail address is dwightdoskeyplc@bellsouth.net.



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