New Orleans' Legal System Still Feeling Pain of Hurricane Katrina

    Feb. 13, 2007
    The National Law Journal
    By Vesna Jaksic

    As chairwoman of the board overseeing New Orleans' public defender office, Denise "Denny" LeBoeuf knows the city's legal system is struggling, but talks about it as if it were a miracle waiting to happen.

    "I think this is going to be a destination office for young lawyers who want to do public defense in the years to come," said LeBoeuf, a veteran criminal defense attorney. "And no one would have said that before Katrina."

    But New Orleans has a way to go before LeBoeuf's "miracle" sees the light of day.

    Only about half of the needed 70 public defenders have been hired. Judges' patience sometimes wears thin, leading one to recently jail a public defender because no one from his office showed up in court. And Hurricane Katrina's impact lingers everywhere, whether it's residents' stress levels, businesses' limited hours or the city's damaged roads.

    A year and a half after Katrina flooded New Orleans, the city's legal system continues to limp along with understaffed courts, a poorly funded public defense system and temporary prison accommodations.

    While lawyers said civil courts are functioning more or less the way they were before Katrina, they used words such as "mess" and "nightmare" to describe the post-Katrina criminal justice system. But many New Orleans lawyers note that Katrina damaged an already ailing system -- creating a once-in-a-lifetime opportunity to rebuild it from scratch.

    "We're in the midst of a revolutionary process," said Pamela Metzger, associate professor of law and director of the criminal law clinic at Tulane University Law School, one of nine board members appointed in April to oversee Orleans Public Defenders.

    "I do believe that at the end of the day -- 10, 20 years down the line -- at least in the area of public defense we're creating a model for what public defense can become," Metzger said.

    PROGRESS AND PITFALLS

    In Orleans Parish, where about 85 percent of defendants are indigent, the public defense system employed 42 lawyers before Katrina, most of whom were part-time employees earning a starting annual salary of $29,000, LeBoeuf said. Because Louisiana's public defense system primarily runs on revenues from traffic tickets and other fines -- the only such system in the country -- most of them were laid off when the office went broke after Katrina.

    While some lawyers never left, more than 30 lawyers have been hired since April and their jobs are now full time, with a starting annual salary of $40,000, LeBoeuf said. Only six lawyers have not returned because they wanted to keep their private practices, said Phil Wittmann, the board's secretary.

    Public defenders now have offices across from the courthouse for the first time. Also for the first time, a computerized organizational system has been implemented, LeBoeuf said. In order to improve attorney-client relationships, the system has moved toward "vertical representation," meaning lawyers are assigned to clients, not courtrooms.

    Some judges have criticized the new public defense system, saying there is no money to keep it going. Judges also question the new vertical representation meth­od because it leads to less familiarity with lawyers who show up in their courtrooms, the lawyers said.

    "A part of the criticism we're seeing from the judges that are speaking publicly about this is, 'What you guys are doing is not going to be sustainable in the long haul because you don't have a sustainable pipeline of funding,'" said Carmelite Bertaut, past president of the New Orleans Bar Association who works at New Orleans' Stone Pigman Walther Wittmann.

    Orleans Parish Criminal District Court Chief Judge Raymond Bigelow did not return calls seeking comment.

    'PROCESSED' NOT REPRESENTED

    Many lawyers said the changes are for the better -- but not nearly enough.

    "Money is the hugest obstacle," said Stephen Singer, professor at Loyola University New Orleans School of Law, who is chief of trials for the public defender's office.

    "We simply have insufficient funds to hire the people we need, not just lawyers, but also support personnel," Singer said. "The lawyers don't have the time to do the work they need to do on their cases and the court is currently like a meat-processing plant -- cases get processed, but they don't get represented."

    The budget for the Orleans Parish public defender system is seriously underfunded at only about $2.5 million, so the system continues to struggle, Singer said. In an incident that several lawyers said exemplified the level of frustration, Singer was jailed by a judge for several hours in January after a public defender did not show up for a hearing, something Singer said was the result of a staffing shortage due to a lawyer's honeymoon.

    A U.S. Department of Justice report recently found the public defender's office needs 70 full-time lawyers and additional support staff. The report estimated that with salary, equipment, furniture and other costs, it will cost $10.7 million to operate the office in its first year and $8.2 million annually after that.

    The federal government has delivered some relief. The Justice Department has made nearly $30 million in grants available to New Orleans and Orleans Parish to help rebuild the state and city criminal justice systems.

    In total, the Justice Department gave Louisiana more than $61 million in justice-assistance grants and Katrina-related law enforcement infrastructure funds. The department also said it was providing assistance in other areas, such as hiring additional Assistant U.S. Attorneys.

    A Justice Department official said the department does not release how many Assistant U.S. Attorneys it has in various offices around the country. But in New Orleans, the office now has two more full-time U.S. Attorneys than it did pre-Katrina, as well as 10 "detailees," who will work in the office until they are no longer needed.

    The federal courts in and around New Orleans have fared better, but are also having problems.

    The 5th U.S. Circuit Court of Appeals temporarily moved to Houston and reopened in January 2006. But the 5th Circuit clerk's office in New Orleans was reduced from 93 employees before Katrina to 83 after, and more employees may leave, said Michelle Meyers, the personnel specialist.

    "We're still in post-Katrina mode," she said. "We just got notification from one of our employees who's been out a lot that she's taking an extended medical leave because of post-traumatic stress. ... We have many employees that are not in their homes; many employees that don't know what they are doing yet, waiting to see if they can rebuild."

    After Katrina, employees of the U.S. District Court for the Eastern District of Louisiana in New Orleans were divided between Lafayette and Baton Rouge until the office officially reopened in November 2005.

    Only one of about 200 employees of the U.S. district court in New Orleans has not returned to work since Katrina, said Julie Harrison, the docket supervisor.

    BEYOND CRIMINAL DEFENSE

    Such issues and frustrations stretch well beyond the Big Easy's criminal defense system.

    The police department's crime lab is not functioning yet, leaving some prosecutors worried about an overload of cases they will get once it becomes fully operational.

    Only about 2,000 of the 6,000 prisoners have been able to return to the parish prison and the rest are scattered throughout the state, said Wittmann, a partner at Stone Pigman Walther Wittmann.

    The tunnel that was used before Katrina to get the parish prison's inmates to court is still closed, adding to the logistical difficulties, said Brian Privor, who is mostly handling adult felonies while his Washington office of Morgan, Lewis & Bockius is lending him to the New Orleans' public defender's office for six months.

    "Because of the logistical realities of the post-Katrina world, it's certainly more difficult for both the prosecution and the defense to work their way through the court system," Privor said. "It's slower, there are fewer personnel and sheriffs to oversee the inmates, fewer lawyers to go around and talk to them, the accommodations are not as accommodating, copies of police reports don't show up like they used to -- everything is just more challenging with the very first appearance in the court system."

    The Orleans Parish District Attorney's Office relocated to a former nightclub after Katrina and has been temporarily housed in an office building for the last six months, said Gaynell Williams, first assistant district attorney.

    It was not until about a month ago that all of the 88 lawyers returned to work, Williams said. And with many people gone from the state, cases now take longer to prosecute, she said.

    "We are still encountering problems dealing with witnesses," she said. "We are unable to locate them and evidence has been destroyed."

    THE CIVIL SIDE

    New Orleans native William Rittenberg has been practicing law in Louisiana for more than 30 years, but he is suddenly doing administrative work that his assistants used to handle.

    With only about 40 percent of New Orleans' pre-Katrina population of 455,000 back in the city, business has declined and some employees have not returned, Rittenberg said. His practice area used to have three support staff for seven attorneys, and now has only one secretary, whom they share with another division.

    "I'm doing things that I haven't done in over 20 years -- writing checks and dealing with bookkeeping and stuffing envelopes," said Rittenberg, a partner at New Orleans' Rittenberg, Samuel & Phillips.

    Rittenberg said a court clerk recently told him to search for a document in a large pile because the staff was down to the minimum and did not have time to retrieve paperwork.

    Gary Bezet, managing partner in the Baton Rouge office of the 120-attorney Kean Miller Hawthorne D'Armond McCow­an & Jarman, said that in one pending case involving an oil company, it took him several months to track down a witness because he had left Louisiana after Katrina.

    Meanwhile, Katrina-related lawsuits, mostly claims against insurance companies, have piled up in the U.S. District Court for Eastern Louisiana in New Orleans. Nearly 12,000 cases were filed in 2006, about three times the number in a typical year, Harrison said.

    "We have other courts in other parts of the country helping us because we can't keep up," she said, explaining that they have been assisting with electronic filing of paperwork into the court system.

    Brent Barriere, a partner with Phelps Dunbar, a 260-lawyer firm based in New Orleans, said the civil courts are dealing with an avalanche of paperwork just as things are starting to get back to normal.

    "I think it's going to take years for the system to fully flush out all these cases," he said.



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