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Public Defender Board Calls Order Abuse of Power, But Judges Cite Mismanagement
Dec. 2, 2006
Times Picayune
By Gwen Filosa
The judges at Orleans Parish Criminal District Court abused their powers by ordering the struggling public defender program to supply more courtroom lawyers or face jail time, the program's board of directors argues in a new court filing.
The board filed an appeal with the 4th Circuit Court of Appeal late Friday, the deadline that 10 Criminal Court judges gave them to assign at least two defense lawyers to each of the court's 12 sections.
On Nov. 20, 10 judges signed the order demanding that the board beef up its ranks or face a contempt hearing that could result in jail time for the board members.
Chief Judge Raymond Bigelow said mismanagement of the public defender program is denying poor suspects their constitutional right to representation. The judges set a hearing on the matter for Dec. 8.
In its appeal, the public defender board argued that the judges crossed the line in Louisiana law that separates judging from practicing law. Moreover, the appeal said, the judges have made unfair demands of volunteer board members trying to revamp an anemic public defender system that, in just one example of its failings, kept no detailed records of its clients before Hurricane Katrina.
"These judges have given the recently appointed board members, all local lawyers serving pro bono, less than three months to reform a system that has been dysfunctional for decades," attorney Christine Lehmann wrote on behalf of the board.
The board agreed that more lawyers are needed to properly represent poor criminal defendants in New Orleans, but it said it doesn't have the money to hire them.
"Without more money from the state, the Orleans public defender program is bound to remain ineffective for at least a portion of its clients," the appeal said.
The board wants the appeals court to throw out the judges' order.
The judges at the Tulane and Broad courthouse, however, said the order is needed to protect the guaranteed rights of impoverished defendants who, 15 months after the storm, aren't receiving adequate representation at Criminal District Court.
"Day to day, defendants are in jail that just aren't getting the representation that they should be getting," Chief Judge Raymond Bigelow said after signing the order.
Bigelow hadn't received a copy of the appeal as of Saturday and declined to comment on it, court spokeswoman Marcia Kavanagh said.
Each of the 12 court sections now has only one public defender. The defender office also needs to provide the judges with a list of all capital cases -- those that could result in a sentence of death -- and the attorneys who have been assigned to them, the judges said.
Hurricane Katrina left the criminal justice system in Orleans Parish broke and crippled by a lack of staff, records, equipment and other essentials. The lawyers who took over the public defender program in late April have hired a consultant for $100,000, plus travel expenses, to redesign the program. That move has disgruntled some of the judges, who see it as a waste of a limited budget.
In turn, the board's leaders have said the judges let the program fall into disarray for years without raising any legal fuss. Before the new lawyers took over this year, they said, the program allowed defense attorneys to work part-time on cases, and many did not bother to keep files.
"The post-Katrina transition is hard on the whole city, and like the city we have a long way to go," Denise LeBoeuf, chairwoman of the board, said in a statement. "Our community is demanding better and, unlike some, we plan to deliver."
Not all the judges at Criminal Court signed the order now under appeal. Judge Arthur Hunter refused to sign it, and Judges Julian Parker and Darryl Derbigny did not attend the Nov. 20 meeting, Bigelow said.
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National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 •
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