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Public Defenders Board, Judges Agree to Truce;
Contempt Hearing Called Off, Compromise Attempted
Dec. 8, 2006
Times-Picayune
By Laura Maggi
Criminal District Court judges and the new leaders of the New Orleans public defenders office agreed to put aside their differences this week, at least temporarily ending a series of legal confrontations over representation for impoverished criminal defendants.
But neither the judges nor the board of the Orleans Parish Indigent Defender Program completely conceded. The judges believe they have the right to ask questions about how the program is being run, while several members of the board characterized as "illegal" a Nov. 20 judicial order requiring that at least two public defenders be assigned to each of a dozen sections of criminal court.
While tensions have simmered for months, the most recent disagreements stemmed from the Nov. 20 order, which alleged the board's mismanagement of the public defender system deprived poor defendants of their right to competent legal representation.
The ten judges who signed the order threatened a contempt hearing for the board members and top staff members, which had been scheduled for Friday.
The public defender's office countered last week with an appeal to the state 4th Circuit Court of Appeal, asking it to overturn the order because the judges are prohibited by law from meddling in day-to-day management of the office. The 4th Circuit refused to consider the appeal.
Instead of filing another appeal with the Louisiana Supreme Court, the board consulted with the judges and agreed to try to work things out. In a letter dated Dec. 5, Chief Judge Raymond Bigelow said the contempt hearing would be changed to a less-threatening "evidentiary hearing" to gather information.
On Thursday, Bigelow postponed that hearing indefinitely by signing the board's request for a continuance. All but one member of the public defender board, Tulane Law clinic professor Pamela Metzger, approved the request at a Wednesday night meeting.
"They will hopefully meet with us before the first of the year and give us some idea of what their plan is," Bigelow said. "And we'll give them the opportunity to see if it works."
Several of the judges believe they have a duty to make sure the board spends its money properly and provides adequate representation to the poor, Bigelow said, noting that the members are appointed by the judges.
Pleasant surprises
The board's chairwoman, Denise LeBoeuf, said the judges will probably be pleasantly surprised with some changes the board is planning. She did not concede that judges should oversee management of public defense, but said the board will try to improve communication with the judges.
At issue is a public defenders office that has been criticized for years by outside experts. The office was understaffed by part-time lawyers with high caseloads, who often did not meet with their incarcerated clients or even keep office files on their cases, according to an April report by the Bureau of Justice Assistance. Though the public defender system has been analyzed and criticized for years, Hurricane Katrina further exposed its dysfunction. Its primary source of money -- court fees -- dried up when the court was closed for months after the storm. Most lawyers were laid off, stranding thousands of jailed defendants with little or no access to legal help.
A new board was appointed by the Criminal District Court judges in April. They took a different tack than previous boards, making changes that included requiring lawyers to abandon their sideline private practices. The lawyers, who also received salary increases, would then be able to focus entirely on their indigent clients, the board reasoned.
But several public defenders, refusing to give up their private practices, quit. That brought a firestorm of criticism from judges irked that the office could not field enough lawyers to handle the heavy caseload that piled up after the flood. Bigelow, for example, said that five defendants in death penalty cases still have not been appointed lawyers.
Board members have countered that they are trying to build an office that will provide better representation over the long term, a process that takes time. In the 4th Circuit appeal, a lawyer for the board attributed the delay in assigning lawyers in capital cases to a desire to ensure that appointees are qualified to handle death penalty work.
Waiting for a lawyer
And rather than apportioning new lawyers equally to various courtrooms, the board wants to rework the system for assigning lawyers to cases. Ronald Sullivan, a consultant hired to help reshape the program, said a pilot program with eight lawyers will start in January to assign lawyers to indigent defendants from the moment they are arraigned at Magistrate Court. Under the current system, a lawyer who works in the Magistrate Court represents a defendant for the bond hearing, but if no bail is granted, the defendant often sits in jail for up to 60 days without a lawyer while the district attorney decides whether to press charges. If charges are filed, the accused gets his public defender when the case is assigned to a courtroom.
"Historically, people were underrepresented for those two months, and sometimes longer, before a lawyer represented them," Sullivan said.
The new system will allow lawyers to investigate cases, start negotiations with the district attorney's office and get cases dismissed, he said.
Board members also have criticized the current method of providing lawyers to be "court-centered" instead of "client-centered," saying that having lawyers assigned to certain courtrooms to represent every poor defendant on that docket mostly helps judges manage the cases before them rather than the clients in them.
But judges could find the new system, similar to those used all over the country, also works, they said. "I think that the judges, if they would just step back and give us a break and a few weeks, they might find they actually like it," LeBouef 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 •
assist@nacdl.org
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