To Clarify, Marulla Was Completely Wrong

November 30, 2007
Times-Picayune
By James Gill


In the matter of his feud with Steve Singer, New Orleans criminal court Judge Frank Marullo is at something of a disadvantage, since he is not allowed to comment on any case before him.

Singer, a Loyola law professor who doubles as the unpaid chief of trials for the Indigent Defender Board, is not required to hide his light under a bushel.

Singer's view is that Marullo's real disadvantage is being wrong on every question of fact or law as he seeks to stem the tide of enlightenment and reform. Although the countervailing voice may not be heard in press interviews, Marullo has made his position clear in open court and in public filings.

This column regrets the earlier implication that Marullo, though pretty much a jerk, was not 100 percent wrong in finding Singer guilty of contempt. That was much too kind.

Press reports have accepted Marullo's oft-stated contention that Singer defied his order that alleged copper thief Reese Sims pay for his own defense attorney. Singer, if he disagreed with the order, should have filed an appeal. He had no right to ignore it, Marullo averred.

That seemed fair enough, but Singer, producing court transcripts to show the order exists only in Marullo's imagination, asks whether the Fourth Estate really thinks that, given his long experience in criminal courts and the manifest eagerness of several judges to throw him in the can, he would be dumb enough to disobey.

When Singer took over last year, he made it clear that the judges, who had controlled the indigent defender board pre-Katrina, would henceforth be expected to keep their noses out, as the law requires. Their noses have been out of joint ever since.

Sims was arraigned in July, when Marullo ruled him entitled to a free lawyer and appointed the board's Joshua Perry. At a hearing in August, however, Marullo changed his mind on grounds that Sims owned a house and his "presence, attire and demeanor" were not suggestive of penury.

Sims tried to tell him his house had been destroyed in the storm, and that he was flat broke, but Marullo refused to listen, kicked Perry off the case and told Sims to "get a lawyer" or go to jail.

"If I find out that anybody is interfering with my judgment call on this, I will deal with that too as indirect contempt. And if I find out anybody tells him not to get a lawyer, you are going to have problems," Marullo said.

Singer arranged for his Loyola colleague Bradley Black to take the case as a private attorney pro bono, and she enrolled the next day without objection.

This, according to Singer, was consistent with his professional obligation to assist an attorney new to a case and with Marullo's order.

The state court of appeal, meanwhile, upheld Marullo's ruling that Sims was not entitled to an indigent defender. Marullo in his brief asserted that Sims had to be pretty flush because he was out on $25,000 bail which meant he must have provided "something of equal value" as a guarantee. In fact, Singer said, Sims is out on an unsecured bond.

Marullo also wrote that Sims' income was "not two hundred percent below the federal poverty guidelines," which may be true, but that is not what the law requires. A defendant earning twice the official poverty level is entitled to indigent defense.

With Black on the case, however, Sims' eligibility to be represented by the indigent defender board was no longer an issue, Singer said, and no appeal was filed with the state Supreme Court.

Meanwhile, Criminal Court commissioner Rudy Gorrell, who is appointed by Marullo and the other judges, was threatening to hold Singer in contempt in unrelated cases, but his pretext was so feeble that the attempt had to be abandoned. Marullo stepped in, a few weeks ago, removed Black from the case and convicted Singer of contempt for defying his August order by arranging pro bono representation.

But the order requiring Sims to get a lawyer was silent on the issue of payment, so there were no grounds for the appeal Marullo says Singer should have filed. It is the plain wording, not the unspoken intent, that matters.

No, this is not nit-picking. Marullo had no right to forbid Sims to private, voluntary assistance in any case, and had he spelled out that requirement in his August order, it would not have stood. We know it is so for, when he ordered Black off the case this month, the state Supreme Court promptly reinstated her.

Singer still faces the prospect of a day in the slammer when he appears before Marullo next week, but that is bound to look like punishment for improving indigent defense.


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