Suit Filed Over Indigent Defense;
Judges Vote to Pull 4 Members Off Panel

May 5, 2007
Times-Picayune
By Laura Maggi

The judges of Criminal District Court voted Friday to remove four members of the board that oversees the New Orleans public defender office, prompting the entire board to file a federal lawsuit saying the judges are improperly interfering with providing quality legal representation to poor defendants.

All of the judges except Charles Elloie, who has been temporarily suspended by the Louisiana Supreme Court, met behind closed doors Friday morning at the Criminal District Courthouse at Tulane Avenue and South Broad Street. Exiting the judicial administrators' office, Chief Judge Raymond Bigelow declined to comment on the private meeting, which had consideration of the membership of the Orleans Indigent Defense Board at the top of its agenda.

But a lawsuit filed at the U.S. District Court in New Orleans made clear that four members were notified they had been kicked off the nine-member board, which has been operating for many months with just eight members.

The lawsuit, which was assigned to Judge Lance Africk, is based on the constitutional right of poor defendants to get "conflict-free" representation, said Herbert Larson, the attorney for the board.

"The attempted removal of four members of the present board and replacing them with other people is nothing more than an attempt to interfere with the management decisions by what is, by any measure, an outstanding indigent defender board," Larson said. He asked for a preliminary injunction to block the change.

In anticipation of the judges' actions, which came after weeks of negotiation, including sessions with the Louisiana Supreme Court, five members of the board met Thursday to unanimously authorize the lawsuit, said Derwyn Bunton, a terminated board member and associate director of the Juvenile Justice Project of Louisiana. Three board members did not attend that meeting, he said.

Bigelow and several other judges have said for several months that the board, which was appointed in April 2006, had a one-year term and would possibly be replaced. But board members note their appointment letters did not include a time limit on their service.

Judges at the criminal court have questioned some of the significant changes made by the board over the past year to alter how public defenders operate in Orleans Parish. Judges, for example, have questioned a policy change that prohibits public defenders from maintaining sideline private practices, saying the switch cost the office several experienced lawyers who subsequently quit. Both Bigelow and Judge Terry Alarcon, who have been critical of the board, declined Friday to address their concerns with the board.

In contrast to the judges, several outside groups have heralded many of the board's changes as important reforms of a system that national experts for decades have said was not providing adequate representation to poor criminal defendants. They included requiring public defenders to work full time to provide all their attention to their indigent clients.

Under the board's oversight, leaders of the office have obtained work space where lawyers can meet with their clients. They have also provided staff with computers, phones and office equipment, amenities not available under the previous leadership unless an attorney maintained an office for his or her private practice.

The public defender office has also begun to shift how it will represent defendants, switching to a system in which lawyers pick up cases when a suspect first appears in court after arrest. Under the old system, cases were allotted to lawyers after the district attorney's office had pressed charges, which typically happens 60 days after arrest. In recent interviews, several lawyers who work for the office said the shift allows them to better investigate their cases, tracking down witnesses and photographing crime scenes to provide the best defense for their clients.

While acknowledging there have probably been some mistakes made by the board, Marta-Ann Schnabel, president of the Louisiana State Bar Association, said that overall it should be given good marks for adopting policies recommended by outside experts.

"It is an improvement over the shape that the city was in for indigent defense immediately after Katrina and before Katrina," Schnabel said, alluding in part to the complete collapse of the public defense system in New Orleans that left jailed defendants without attorneys for months after the hurricane. "A year is a very short time to take a system that was totally nonfunctional and try to put it into place and make it functional."

At their Friday meeting, the judges axed Bunton; Denise LeBoeuf, a well-known death penalty defense attorney; Pamela Metzger, a professor at Tulane Law School; and Dane Ciolino, a professor at Loyola Law School.

The four other members of the board -- Phillip Whitmann of Stone Pigman Walther Wittmann; criminal defense attorney John Fuller; Kim Boyle of Phelps Dunbar; and Harry Rosenberg, a former U.S. attorney also with Phelps Dunbar -- were retained, according to Judge Arthur Hunter, who as deputy chief judge answered questions about the judges' votes.

Hunter said a majority of the judges also voted to reduced the size of the board from nine members to seven members. They appointed three new members: criminal defense attorney Townsend Myers, Eric Wright of Wright, McMillan & Moore and Pauline Hardin of Jones Walker. The nominations were made by two local board associations, which initially had only renominated the original eight members. But at the request of the judges last month, the two groups provided additional nominees, while encouraging the judges to consider reappointing the original board for continuity.

During the judges' meeting, a majority rejected Judge Calvin Johnson's motion to postpone any action about the board until after the state Legislature considers a proposal to reshape how indigent defense is provided across Louisiana, said Hunter, who supported Johnson's proposal.

That legislation would eliminate all local boards, as well as the practice of allowing the local judiciary to influence public defense by appointing boards. The practice has been criticized by several experts as giving judges improper influence over the public defenders who appear in their courtrooms.

In the case of the Orleans board, the dismissed members said undue influence is clearly evident, a point also made in the lawsuit. "They are trying to run the law office of people who come before them, and that is improper," said LeBoeuf, who served as chairwoman of the board.

At the private meetings held in recent weeks between the judges and board members, several of the judges complained about some of the contracts the indigent board has entered into, such as a $400,000 deal with Juvenile Regional Services Inc. to provide legal representation in juvenile court. Judge David Bell and at least one on the indigent defender board, who have heard the complaints, said the judges questioned the propriety of the contract because the nonprofit organization started as an offshoot of the Juvenile Justice Project of Louisiana, which Bunton helps run.

Bunton, who is the associate director of the Juvenile Justice Project of Louisiana, said Juvenile Regional Services was started by lawyers from his organization but was created as a separate nonprofit initially with plans to regionalize juvenile defense services.

That proposal has stagnated, so the group decided to bid for a contract to provide legal representation in New Orleans, he said. While Bunton said he gave the lawyers advice on how to put together their proposal, he abstained from a vote on the contract.

"I'm not trying to do anything that is a conflict. I don't make any money (from the contract). I don't sit on the board of JRS," Bunton said.

Bell, the chief judge at juvenile court, said criticism of the contract is unwarranted, adding that the quality of representation has dramatically increased in the two months since Juvenile Regional Services took over representation.

Under the previous practices, lawyers in juvenile court often first interviewed their clients on the day they went to trial and almost never subpoenaed defense witnesses, Bell said. But with the new leadership, lawyers are providing more aggressive defenses, as well as trying to work with court personnel to make sure defendants are in school.


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