Public Defense to be Sieve for Criminals

    April 16, 2007
    New Orleans City Business
    By Richard A. Webster

    Orleans Parish Criminal District Court Judge Arthur Hunter is expected to release 42 individuals with pending felony charges Wednesday because they are not receiving fair representation.
    Supporters describe Hunter’s decision as a last-ditch attempt to force the state to fund the long-neglected indigent defense system.

    “It’s a face-off,” said Heather Hall, director of the Louisiana Justice Coalition. “It’s an extreme decision but the state has made it extreme because they have passed the buck for 30 years. Judge Hunter is saying, ‘If the state won’t fund indigent defense because it’s the right thing to do, it will do it because we’re going to start halting the prosecutions for hundreds of criminal defendants across the state.’”

    State Rep. Danny Martiny, R-Kenner, is pushing a bill to increase funding but said it is an uphill battle.

    “What’s really sad is that no one will ever be criticized by the general public for not funding indigent defense properly,” Martiny said.

    The Louisiana public defender system is in disarray. Orleans Parish lost 38 percent of its attorneys after Hurricane Katrina dropping from 42 to 26. Many of those are on temporary contracts. The remaining attorneys struggle to handle all felony cases.

    The American Bar Association stipulates defense attorneys should handle no more than 150 felony cases per year while the state standard calls for no more than 200. Defense attorneys in New Orleans now handle as many as three times that amount, said Steve Singer, chief of trials for the public defender system. Singer said the caseload makes it difficult to mount a competent defense.

    To improve the situation, the public defender’s office must hire more attorneys at competitive salaries but the budget won’t allow it, Singer said.

    This problem, exacerbated by the storm, existed decades before Katrina.

    Louisiana is the only state that funds its public defender system mostly with traffic fines as opposed to state-appropriated money.

    “There’s a reason they’re alone,” said David Carroll, director of research at the National Legal Aid and Defender Association in Washington, D.C. “There’s no correlation between the money you actually need to cover the services you’re constitutionally obliged to give and the amount of money that happens to come in.”

    ‘Arbitrary system’

    The 2005 budget for indigent defense in New Orleans was about $2.2 million. Traffic tickets accounted for $1.65 million, or 75 percent, of the budget with the remaining $550,000 coming from the state.

    “It’s an arbitrary system that doesn’t bear any relationship to the need,” Singer said. “You can have a rural parish where two interstates intersect and they’ll raise huge amounts of money through traffic tickets, and then you’ll have another rural parish with no interstates, so they have no money. It’s not a way to run a court system.”

    Martiny’s bill would increase state spending on indigent defense 35 percent from $20 million annually to $27 million. It would also eliminate 41 local indigent defense boards and create a handful of larger district boards, much like the reform of the levee boards, he said.

    The existing state board would govern the districts and have power to demand uniform standards, accountability and impose sanctions.

    Traffic ticket-based funding, however, will remain in place for the foreseeable future. Neither the Legislature nor the public is willing at this point to devote a significant amount of tax dollars to pay for the defense of alleged criminals, Martiny said.

    “The people of this state and country don’t consider the right to counsel as a right. They think of it as a perk the criminals get.”

    Public defenders can only hope Martiny’s bill will increase state funding to where it matches or exceeds money derived from traffic tickets, said Carroll.

    Reports by the U.S. Department of Justice and the National Legal Aid and Defender Association estimate the New Orleans public defender system needs between 60 and 70 full-time attorneys and an annual budget between $7 million and $8 million.

    About 90 percent of all criminal defendants in Louisiana are indigent, according to the Louisiana Justice Coalition.

    Defenders swamped

    In 1993, New Orleans public defender Rick Tessier informed the court he could not effectively represent his client because of case overload.

    The Louisiana Supreme Court found the Louisiana indigent defense system “so lacking that defendants who must depend on it are not likely to be receiving the reasonably effective assistance of counsel that the constitution guarantees.”

    Why then does the problem persist 14 years later?

    Hall said politicians fear being perceived as “soft on crime” if they fight for adequate defense funding for accused criminals.

    “Funding for indigent defense comes up every year, and every year the Legislature takes a pass on it because there’s no political consequence,” Hall said.

    Hall said Hunter’s decision to release 42 pre-trial inmates is the direct result of this long-standing timidity and indifference on the part of politicians.

    “We should be setting people free because we have no way to get to the truth in court the way the system is set up right now,” Hall said.

    Martiny said a competent public defender system is vital to the health of courts statewide.

    “I’ve met with victims groups and tell them it’s an easy vote to not fund indigent defense,” Martiny said. “But if you really care about victims, you want to make sure that if someone is tried for a crime they have competent counsel so you don’t have to go through the pain of retrying the case.”

    Carroll said it is also a matter of public safety.

    “When an innocent person is sent to jail as a result of public defenders not having the tools, time or training to effectively advocate for their clients, the true perpetrator remains free to victimize others.”

    And though all eyes are on the New Orleans public defender system, no part of the state is immune to the problem, Hall said.

    “Caddo Parish just lost three attorneys because it couldn’t afford to keep them. It would be wise for the state to do something about this before residents in other cities are facing the disaster we’re facing in New Orleans.”



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