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Dysfunctional Defense
August, 2007
ABA Journal
By Margaret Graham Tebo
When the New Orleans Bar Association asked for civil lawyers to take on some criminal clients to help ease the caseload, Carmelite Bertaut stepped up. She was, after all, the president of the New Orleans bar at that time, in early 2006. She wanted to lead by example, and she wanted to help her beloved hometown recover from Hurricane Katrina.
She is a partner at one of the Crescent City's most prestigious law firms, Stone Pigman Walther Wittmann, and is known as a tough litigator who handles class actions, complex commercial litigation and products liability cases.
She is, in short, no wallflower. She thought she was ready for anything. So she volunteered to take on an indigent criminal case.
It was in April 2006, weeks after her client's first court appearance, that Bertaut recalls being handed the thin case file of a young man who was arrested on New Year's Day, more than three months earlier, for allegedly hitting another reveler with a beer bottle in a Bourbon Street bar.
The Orleans Parish district attorney's office declined to discuss the evidence specifically, but according to Bertaut, police reports alleged that the victim received a single stitch on the back of his scalp and was released from the hospital. And though the victim did not see his attacker, he fingered Bertaut's client based on an argument with the client earlier that evening. The client-for whom she requested anonymity-denied having hit the victim. Few other witness statements were recorded, and none of the witnesses could be found.
By the time Bertaut met the client in court, he had already been behind bars for nearly four months. He was charged with aggravated assault, simple assault and shoplifting. It was unclear exactly what the client was alleged to have stolen, Bertaut says, but it may have been the beer he was drinking at the time of his arrest. His bail, according to court records, was set at $ 50,000.
The client was a 19-year-old laborer from Atlanta who had come to New Orleans just a month or two earlier to work construction on post-Katrina rebuilding sites. He had no prior arrest history in New Orleans or his hometown, says Bertaut. Neither he nor his parents--a mother in Atlanta, a father in Baltimore--could afford the bail bond.
When Bertaut got the case, the police officers who made the arrest on New Year's Day no longer worked for the New Orleans Police Department, and Bertaut could not locate them. She was told by their former colleagues that both might have left New Orleans, and no one seemed to know where to find them.
Shortly after meeting with her client, according to court records, Bertaut filed motions for a reduction in bond and a speedy trial. But because the courts were in chaos due to the destruction caused by Hurricane Katrina, her motions were repeatedly rescheduled.
Meanwhile, her client remained in jail.
By the end of May, she was still filing motions--this time to modify his bail and to conduct a preliminary examination. These, too, were postponed by the court for one reason or another.
In June--five months after the original arrest--Bertaut filed a motion to show cause as to why the charges should not be dismissed for lack of evidence.
At a hearing on the motion, the judge listened to Bertaut's plea on behalf of her client: The charges were unclear, with nothing to support the victim's statement; the injury was minor; her client had no prior run-ins with the law; if he hadn't paid for his beer, it was only because the police took him away before he had the chance.
The judge congratulated Bertaut on how well she represented her client. He acknowledged her pro bono service and said he respected her firm for donating so much time and so many resources to the case.
He dismissed the shoplifting charge, but refused to dismiss the assault charges. The assistant district attorney offered a deal: Plead guilty to one felony count of assault and accept a sentence of three-and-a-half years, with credit for time served.
Bertaut was incredulous.
"Three-and-a-half years and a lifelong felony record for a bar fight where there were no real injuries and they couldn't even prove my client was the bad guy? I thought, 'No way. This isn't right.'"
By this time, Bertaut's client had been in jail for five months. He was gaunt and tired, she says. He was desperate for some certainty about when he would be released. If he lost at trial, he was facing 10 years in state prison.
Bertaut took the client to an empty room in the courthouse and let him use her cell phone to call his parents.
"He was crying, the parents were crying, I was crying, my associate was crying, my assistant was crying. It was a mess. I can't remember ever feeling so helpless," Bertaut says.
Bertaut called a colleague with experience in criminal law. "Take the deal," he told her. "It's a good deal--as good as you're going to get."
The client took the deal. He is now serving time in a Louisiana state prison.
It's an experience, Bertaut says, that she is not eager to repeat.
But the district attorney's office sees no problem with the outcome of the case.
"If she believed her client was not guilty, she had an ethical obligation to go to trial," says First Assistant District Attorney Gaynell Williams.
"It sounds to me like the client made an informed decision and decided to plead guilty," Williams says. |
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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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