From New Orleans's Flooded Streets: Lawyers Who Made a Difference

Vol. 33 No. 4

By

Sarah Turberville is a recent graduate of Tulane University Law School in New Orleans and is a project attorney for the Death Penalty Moratorium Implementation Project of the ABA Section of Individual Rights and Responsibilities. The affiliations of the individuals featured in this article are for identification purposes only. The content and views expressed do not necessarily reflect those of any listed affiliations.

While television viewers watched the tragedy unfold for New Orleans residents at the Morial Convention Center and the Superdome, some of the city’s most forgotten and most disenfranchised citizens were housed within the confines of the Orleans Parish Prison, the Templeman jail building, and the House of Detention. These inmates waited in their cells knowing nothing about the approaching storm or its aftermath. Their families had no information about the well-being or whereabouts of their children, brothers, sisters, mothers, or fathers who had the unfortunate circumstance of being locked up in the Orleans Parish Prison complex on August 29, 2005, when Hurricane Katrina hit New Orleans.

Whether on municipal, misdemeanor, or felony charges, or simply for inability to pay fines and fees for a prior conviction, these inmates waited in their cells as the power went off and the water began to rise. Most of them were awaiting trial; they had not yet had their day in court. It took local officials several days to evacuate the inmates, who were then dispersed to Department of Corrections facilities and local jails across Louisiana. The local district and appeals courts were closed and lawyers and judges scattered throughout the country, handling their own personal crises in the wake of the storm.

However, this is not a recounting of the failures of the system before and after the hurricane. Throughout the chaos that ensued, several judges, lawyers, and countless other actors in the criminal and civil justice systems stepped in to help bring some semblance of due process and order back into a city left three-quarters under water. These people viewed their role as one to which they were obligated, either because of their position or because of an innate characteristic in themselves, to try to bring justice to a system that had been brought to its knees. A few of their stories are told here.

Judge Paul N. Sens: A Duty to Due Process

On August 29, 2005, New Orleans Municipal Court Judge Paul N. Sens would ordinarily have set bond or released more than 100 people who had been picked up on various charges over the weekend. However, upon hearing the news that New Orleans would not dodge the bullet, the judge evacuated with his family to Jackson, Mississippi. Katrina none­theless made its way into Mississippi, leaving Sens and his family with no power, unreliable cell phone communications, and only portable radios to discover what had transpired back in New Orleans. Only through a New
Orleans police contact did he learn of the levee breach of the 17th Street Canal, which left his Lakeview home under water. It would be days before he learned the extent of the damage.

Sens relocated to New Iberia, Louisiana, southwest of New Orleans, one week after Katrina. From there, he contacted Chief Justice Pascal Calogero and Justice Catherine Kimball of the Louisiana Supreme Court and found that prisoners from Orleans Parish had been evacuated to prisons all across the state. He later said it was his duty to help the city, despite the personal obstacles he faced after the levee breach. “I felt so helpless, what could I do? I can’t return to my house—I just wanted to help in any way that I could.”

Had the hurricane not struck, a variety of offenders—people arrested the night before for having too much to drink or homeless people arrested for “obstructing a public passage”—would have come before the judge within forty-eight hours. Sens normally was the first person to determine whether and how a person would be released. Someone who cannot make bond on a municipal charge must wait in jail for trial, for up to twenty-one days. Municipal prisoners include people awaiting their initial appearance after arrest, people awaiting trial but cannot make bond, and people serving out municipal sentences of up to six months. It was not unusual for the total of municipal offenders in the House of Detention, part of the Orleans Parish prison complex, to reach 1,000.

Soon after Katrina landed, the Orleans Parish sheriff evacuated, by most accounts, nearly 8,500 people from the parish jails. Once out of the prison complex, inmates were bussed to penitentiaries and correctional facilities all over Louisiana. When the water began to rise, the sheriff had only a hard copy list of all inmates at the Orleans Parish complex. Once the prisoners arrived at the state’s penitentiary in Angola, there was not enough capacity to hold them. Some prisoners were then sent to facilities across the state with little record of who they were or where they were going. Those arrested right before the storm had been in custody over a week without ever seeing a judge or lawyer. Many arrestees found themselves sharing cells in the notorious Angola state penitentiary with evacuated inmates charged with serious felonies.

Sens realized that if there were any possibility of injecting some due process back into the system, he was one of the few who could do so immediately by ordering the release of municipal offenders. Eight days after the hurricane, he set up a phone and fax line in his temporary home and jump-started a criminal justice system that had no operating courts, lawyers, judges, or local defendants. Sens began by calling the sheriff’s office to determine who should be released. “We started with the A’s,” he said. Once it was decided who could be released, the judge drove to Baton Rouge to sign the release order for each prisoner. From that point, it was the sheriff’s office’s responsibility to locate the facility to which it had sent the prisoner.

Recognizing the sheer volume of detainees, the judge soon instituted a general release for three categories of municipal offenders. First, he gave credit for time served for municipal convictions. Second, he released and closed out the cases for those awaiting trial. Finally, he released those awaiting trial on domestic violence charges; however, he gave these people January 2006 trial dates due to the more serious nature of their charges.

At the end of September, with Hurricane Rita looming, the judge found an apartment in Baton Rouge. He also made his way back to his home in New Orleans for the first time, when he stepped off the boat that transported him to Lakeview onto the roof of his house. It was during this visit that he learned of Camp Greyhound, where the sheriff’s office had set up a makeshift jail at the Greyhound bus station to incarcerate people arrested for offenses occurring after Katrina struck.

Without any judicial personnel present, these post-Katrina offenders were arrested and twenty-four hours later sent to the state penitentiary without ever appearing before a magistrate. “I saw what was happening at Camp Greyhound,” the judge recalled. “We at least needed a judge there to make an independent determination, so I said I need a desk, a telephone, and a court reporter.” The judge started municipal court at the Greyhound station on October 3, 2005. Using a legal pad, the judge and court reporter called the cases and set bond or released people on their own recognizance while the proceedings were recorded in longhand. The municipal charges consisted of thefts, public intoxication, disturbing the peace—offenses that took on a different character after Katrina. “If a guy spent twenty-four hours in [Camp Greyhound], considering what he had been through, we’d just let him out.”

To date, however, it is unknown how many release orders ever made their way to the correctional facilities where Orleans Parish inmates were held. As recently as November 2006, according to the New Orleans Times-Picayune, some people detained in the days after Katrina were still incarcerated in state facilities and had not ever seen so much as a lawyer since their arrest in the summer of 2005.

“You have to have a contingency plan,” Sens said when asked what can be learned from this experience. “No one could have foreseen this.” However, under the circumstances, Sens believes that the system functioned as well as it could.

Meghan Garvey: A New Lawyer’s Trial by Fire

Meghan Garvey is not very upbeat at the moment. “The lack of concern for basic human dignity and civil rights on the part of the government took my breath away,” she said of her experience in the days and weeks after Katrina. In August 2005, Garvey had just graduated from law school in New Orleans and was awaiting her bar exam results.

With Katrina on the horizon, Garvey evacuated to Austin, Texas. She had concerns like most people who fled their homes before the storm. She was worried about a friend with disabilities who could not easily evacuate. She wondered if her favorite local neighborhood haunts might be destroyed.

It never occurred to Garvey, and many others, that prisoners from Orleans Parish would be stranded as the waters rose and then trapped in a legal black hole without access to courts or lawyers. “I always knew that there were people in jail in New Orleans who should not be there. We send people to jail for marijuana, sleeping outside, being drunk,” she said, “I think we were all a little naive. . . . I never contemplated the jail situation before the storm.”

That “situation” was the result of the ad hoc evacuation of inmates from the Orleans Parish prison facilities. Heavy criticism has been laid at the doorstep of the Orleans Parish sheriff’s office because of the evacuation and subsequent treatment of inmates. Human Rights Watch has called the treatment of the prisoners during and after the evacuation one of the worst “nightmares of hurricane Katrina.” The Orleans Parish sheriff maintains that the evacuation was safe and successful.

While Sens signed many release orders for municipal prisoners, most prison evacuees could only go through the more elaborate and slow-moving process of seeking a writ of habeas corpus to petition for their release after the storm, no matter how minor the justification for their incarceration. In the second week of September 2005, Garvey went to Alexandria, Louisiana, in Rapides Parish, about 220 miles northwest of New Orleans, to provide assistance to lawyers filing habeas corpus petitions on behalf of municipal inmates evacuated to Rapides. Garvey was especially focused on assisting a released inmate with developmental disabilities to get back to his family. This proved an especially daunting task in September because the inmate had lost his identification during the storm and no bus transport system was operating in Louisiana. Garvey found herself racked with guilt about what would happen to this man if and when he made his way back to his family, who had evacuated to Michigan.

In the midst of Garvey’s struggle to assist this gentleman, Phyllis Mann, a criminal defense attorney in Alexandria, stopped her and showed her a stack of papers with long lists of the names of prisoners evacuated from Orleans Parish. Garvey was overwhelmed. “I was trying to do detailed social work, while we were really in a triage situation,” she said about realizing that the work she was doing for one client would have to be done a thousand times over.

Garvey said that helping out was an easy decision. “My needs and those of the prisoners were kind of linked up. I’m not from New Orleans, but I consider it my home. . . . Working toward helping people get out, get back with their families, and come home made me feel connected to the community.”

The situation has not left Garvey with any idealistic notion about the pursuit of justice for criminal defendants. Garvey said she learned that lawyers must be incredibly vigilant in protecting the rights of poor people because “if you give [the government] an inch, they will take a mile.” However, Garvey’s trial by fire has been rewarding personally and professionally. Eventually, she found out that she passed the Louisiana bar exam and, on the day she was sworn in, began arguing habeas corpus petitions for the evacuated prisoners in court. She assisted in getting 1,200 people out of jail or prison throughout the state. The unique circumstances of Katrina enabled her to take initiative simply because there was no one to tell her what to do. “When you have a situation that is so bizarre and catastrophic, the playing field is somewhat leveled because no one has any relevant experience,” she advised.

Garvey is now a public defender in Orleans Parish. When asked about her adopted city, Garvey said, “I want to help rebuild a city where the government serves the people, not the other way around. . . . I have no interest in living anywhere else.”

Virginia Schlueter: Federal Public Defender Finds Organized Chaos

The Federal Public Defender for the Eastern District of Louisiana, Virginia Schlueter, experienced a decidedly different scenario from that of the Orleans Parish criminal justice system. When Hurricane Katrina struck, “we knew every case, where the clients were located, and which witnesses had been subpoenaed,” Schlueter said.

Schlueter, like many New Orleanians, did not feel a great deal of consternation about a hurricane churning in the Gulf of Mexico. “I had a Fifth Circuit argument scheduled for Monday morning at 9,” she recalled. By the time the Fifth Circuit had cancelled court for the following day, it was too late for Schlueter to evacuate because freeways out of the city were jammed with traffic. She went back to her office at the Hale Boggs Federal District Courthouse in downtown New Orleans and moved all the office’s equipment away from the windows “just in case” and grabbed her reports on the status of all the office’s cases.

With the assistance of quickly enacted federal legislation, the Federal District Court for the Eastern District of Louisiana began operating out of Lafayette, Baton Rouge, Houma, and Gretna, Louisiana. Schlueter’s office instituted its emergency preparedness plan and moved into the Middle and Western District Federal Public Defender offices in Baton Rouge and Lafayette.

Her office’s computer servers with specific case information were still physically located in New Orleans, however, so Schlueter soon returned to the flooded city with the aid of federal marshals. “A very strange feeling,” Schlueter recalled, “for a public defender to be escorted by an armed guard.” With the marshals’ help, she was able to take the servers out of the federal courthouse and relocate the Eastern District Public Defender’s Office.

The federal government sent a space management coordinator to assist Schlueter’s office, as the market for rental properties for businesses and homes quickly escalated into bidding wars in Baton Rouge and Lafayette. Once Schlueter found the accommodations for her staff, the federal government picked up the tab for their housing, as well as for rental cars for those who had lost everything in the storm. Schlueter recalled how difficult it was to ask people to come back to work so that the public defender’s office’s clients knew they had representation. “Everyone lost houses,” she said of her employees, and “a lot of them sent their families and children to school in other states” while the staff returned to work. Schlueter’s office became operational in September 2005, working out of the Western District office law library in Lafayette as well as donated retail space in a shopping mall.

All the federal inmates had been evacuated to Houston. Schlueter’s office decided that the first course of action should be to move for expedited sentences for clients who fell into the low-sentencing-guideline range.

For all of September, Schlueter’s makeshift Lafayette office would learn which of the four courthouses (in Lafayette, Baton Rouge, Houma, or Gretna) the Eastern District would operate from that day and then drive there. This system was often troublesome. The following scenario was not unusual: Schlueter would drive toward Baton Rouge, for example, but get a cell phone call that court would not operate out of Baton Rouge that day after all, but out of Houma. The attorneys in the office would then head to Houma, only to find out on the ride there that the federal marshals did not want to bring the inmates to Houma, so they would then turn around and head back to Lafayette.

All in a day’s work in the post-Katrina criminal justice system.

Schlueter found it most important to have the necessary people together to give the appearance of normalcy—the judge, the clerk of court, the federal marshal. “You are 90 percent successful for showing up,” she said. The appearance of normalcy eventually led to the reality of normalcy. During the months after Katrina, with the district court spread over four cities and the Fifth Circuit operating out of another state, Schlueter found it paramount to let clients and families know that someone was working on their case, no matter in which courthouse their case may be called. “The clients did not know if their families lived or died, if their homes were okay . . . there was a great deal of anguish,” she recalled.

The Federal Public Defender’s Office for the Eastern District of Louisiana moved back into its original office space in the federal courthouse in downtown New Orleans on November 1, 2005, although the district court operated out of Baton Rouge until January 1, 2006. As to what to do to ensure that people have access to justice during a disaster like Katrina, Schlueter advised, “Follow the courts!”

Phyllis Mann: A Criminal Defense Veteran’s Efforts

Katrina caused the state and local courts in southeast Louisiana to shut down almost entirely through the end of 2005, leaving prisoners and pretrial detainees completely cut off from contact with their lawyers or access to courts. This was the scenario in which Phyllis Mann, a solo practicing and veteran criminal defense attorney from Alexandria, Louisiana, found herself and her would-be clients after the hurricane. “To the extent that civilization requires a functioning criminal justice system, our civilization had been destroyed,” she said of the disorganization and chaos that ensued after Katrina flooded New Orleans.

On the morning that Katrina made landfall, Mann was sharing her home with three evacuated criminal defense attorneys, their three friends, and one intern. Once Mann learned about the breached levees, she e-mailed constantly to stay in touch with her colleagues from New Orleans, who were then scattered all over Louisiana and beyond. She feared the drain of good criminal defense lawyers from Louisiana that the hurricane would cause.

“At the beginning,” she said, “my worst fears were that all of the hard and tedious work that had been done for several years toward improving the indigent defense system in Louisiana had just washed down the Mississippi.”

Louisiana holds a peculiar title as a state that permits individual jurisdictions to determine how to fund public defender offices. In Orleans Parish, the public defender’s office was funded by fines and fees from traffic violations and felony convictions. Perversely, this means that the public defender’s office receives funding when an indigent defendant receives a felony conviction and pays fines and fees related to that conviction. The New Orleans Public Defender’s Office, and its source of funding, had suddenly dried up in the abandoned city. “Indigent defense [was] never high on anyone’s list of things to worry about,” Mann said, “so the financial devastation from the hurricane was, I thought, sure to set us back twenty years in addressing indigent defense.”

Through e-mails, Mann learned that the Louisiana Supreme Court, two of the five state courts of appeal, and all of the courts in southeastern Louisiana were completely out of operation. Seeing that people held within the walls of the Orleans Parish prison complex now lacked lawyers and courts, Mann’s concerns quickly turned to the prisoners. “As the hurricane was coming, I never thought about the people locked in the jails. . . . I would have assumed that the jails were being evacuated.”

Later, Mann would interview these men, women, and children about the prison evacuation and discover that their move from prison cells into buses that dropped them off in prisons all over the state was rough at best or criminal, according to some inmates’ accounts.

Mann thought the best solution would be to simply try to find the prisoners and match each inmate with his or her displaced lawyer. “I naively thought that if we could just create a list of each attorney’s clients and their locations, the lawyer would get right to work on their cases.” Mann created a form that she and her cadre of volunteer attorneys across the state could use to gather information from the prisoners. She asked the lawyers to call their local jails to see if Orleans inmates were being sent there while she went to her local jail in Rapides Parish to interview 200 prisoners from Orleans. She never imagined there would be close to 8,500 evacuated prisoners spread across the state.

“When I first started out on the course of meeting with the evacuated prisoners, I had no idea that this project would become my entire life for the next four months,” Mann said. “With so many of my criminal defense attorney friends scattered throughout the country, . . . I had to do something to help protect their clients.” Most evacuated inmates had not yet gone to trial, some did not know why they were imprisoned in the first place, none had seen a lawyer since the hurricane, and some had not seen a lawyer since their arrest. None of them knew if their families had survived the storm or whether their homes were destroyed. Many recounted harrowing and horrific stories about flooding in the prison and the subsequent evacuation.

Mann’s efforts to get them released snowballed, and soon every criminal defense lawyer she could get ahold of was assisting in the prisoner project. Mann had sixteen people living in her home, each an integral component of the twenty-four-hour effort to find out who was in prison and where and to get them released, a daunting task with few operating courts. “With so many people in a sort-of Katrina catatonic state, it was just impossible to get people in positions of power to do anything,” Mann said.

Mann had worked out a deal with the Department of Corrections for visitation in facilities all over the state; however, she had to negotiate with each individual facility for evacuees located in the parish jails. Along with other lawyers she enlisted, Mann would go to each facility and interview however many evacuated prisoners were there. In some cases, there were up to 500 prisoners, and the lawyers would stay for up to fourteen hours interviewing prisoners. The volunteers in Mann’s Alexandria office entered the information sheets from prisoner interviews into a data system to be used for litigation and to keep track of the prisoners. Some lawyers put together habeas corpus litigation, while others negotiated bonding arrangements for people trying to make bail, and called parole officers on behalf of people incarcerated with parole holds. Simultaneously, Mann and her team tried to track down family members of the prisoners and find clothes, transportation, and housing for those released.

However, Mann and the volunteers she enlisted were also experiencing their own personal crises in the wake of Katrina. Among other things, Mann had no income for four months following the storm. She saw no new clients and did no billing, while incurring large expenditures from collect calls from the jails and the use of supplies. Three weeks after Katrina, Hurricane Rita roared into Louisiana and caused Mann to lose electricity and water at her home and office in Alexandria. Many evacuees were suffering posttraumatic stress disorder, anxiety, and depression, according to the American Psychological Association.

The people in Mann’s home were dealt a double dose of trauma as they also took on the problems of those they were working to help. “It was one thing to do the work—that was manageable—but it was another thing to, day after day, have to hear the stories of all of these poor people and carry their pain and basically bear witness to what had happened to them,” Mann recalled of the personal toll that the work took on her and others.

But the work continued, twenty-four hours a day, seven days a week. By January 2006, Mann and her team of volunteers had filed habeas litigation on behalf of more than 2,000 evacuated prisoners. For four months, her office, home, and cell phones rang without stop with calls from prisoners who needed a lawyer, family members who had no idea where their loved ones were, and lawyers who had no idea where their clients were.

In some cases, Mann and the ad hoc team of lawyers and legal assistants were the only recourse for the evacuated prisoners. The judicial system had completely collapsed, and no government entity was particularly concerned for the legal rights of the evacuated pretrial detainees and prisoners. Mann blames this apathy on human nature itself. “Brilliant, talented, hard-working lawyers, judges, and law enforcement officers all were paralyzed—all of the people who were supposed to be in charge were themselves victims of the hurricane.” As for the failure of democratic institutions to ensure that liberty is not taken without due process of law, Mann said the government “did not need us to call and ask if there was anything we could do to help; they needed us to fix it for them.”

Colette Pichon Battle: A D.C. Lawyer’s Return to Her Roots

A year and a half after Katrina, lawyers continue to try to “fix” broken government systems in and around New Orleans. Business as usual does not yet exist. While access to justice is a more tangible notion for criminal defendants, other victims of Katrina and Rita seek justice in a daunting and complex bureaucracy, with ever-dwindling resources.

One lawyer who gave up her life in Washington, D.C., to return to the Gulf Coast and help residents navigate their legal and personal crises in the wake of the storms is Colette Pichon Battle. Pichon Battle is a French Creole native of Bayou Vincent who returned to her family’s home in Slidell, Louisiana, upon realizing the legal problems that her family and neighbors would endure following the storm.

Bayou Vincent, a community within Slidell, bore the brunt of Hurricane Katrina’s immediate wrath. Opposite Lake Pontchartrain from New Orleans, Slidell suffered storm surges of up to twenty feet, flooding the town immediately. When Katrina struck, Pichon Battle received updates in D.C. “I got text messages about people being cut out of their roofs and others spending eight hours in water. Some held onto trees until the water receded. Some could not hold on,” she recalled.

Pichon Battle realized that her skills as a legal advocate were desperately needed in a place where victims of the hurricane were completely reliant on volunteer organizations and an overburdened federal bureaucracy to help rebuild their homes and communities. Soon after the storm, she helped organize a national drive to provide supplies, food, and water to four states affected by the hurricane and collected volunteers from black churches and historically black colleges to gut homes in southeast Louisiana.

Nonetheless, “enough just was not being done,” she recalled, and “whoever was in charge was not taking care of people that looked like me.” She wanted to represent her community and fight against the apparent lack of concern for her neighbors and the French Creole community that had supported her from childhood. “I’d heard about volunteers discriminating against [the] elderly and African Americans, I was getting reports about police brutality, I had seen my family go through the ridiculous FEMA processes,” she said.

Her community in Bayou Vincent needed assistance not only with complex legal issues but also with everyday tasks that a D.C. lawyer would take for granted. She organized a conference call between people who had been displaced from Bayou Vincent, with no idea of their family and community members’ whereabouts. The call opened with older members of the community praying in Creole French, something that many younger Bayou Vincent natives had not heard. Parents and frail elders were finally put in touch with their children. “They began to thank me and cry. It was just setting up a conference call. . . . It was then I knew that the community that had bought fish dinners to send me to college and law school now needed me to bring back the things I had learned.”

She decided to return to Louisiana and help hurricane victims access justice, in its many forms. She discovered that in Bayou Vincent there were only five African American attorneys. So in March 2006, Pichon Battle moved into her family’s FEMA trailer in Slidell and founded Moving Forward Gulf Coast, a nonprofit organization dedicated to informing and educating victims of Katrina, in Bayou Vincent and beyond, of their legal rights related to the litany of issues that any person affected by the hurricane may endure.

More than eighteen months later, Pichon Battle still lives with her family in their trailer. She works eighteen hours or more a day educating Gulf Coast residents on their rights and helping them to maneuver through the often overwhelming and intimidating legal processes necessary to rebuild their homes and communities. When asked what keeps her going, Pichon Battle replied that she feels a duty to fight, despite the uncertainty whether she is actually getting people the assistance they need and deserve. Access to justice in the post-Katrina Gulf Coast does not always mean getting people lawyers and filing motions in court. “Every day that I wake up, I realize that this battle is almost impossible to win,” she said about her work at Moving Forward Gulf Coast. While some lawyers fight for the government to remedy violations of storm victims’ rights, Pichon Battle takes the first step of educating citizens of their rights as storm victims. She advises that in her new line of work, “success is measured in thank-you cards and 7 a.m. visits at my FEMA trailer with people from my community, who are known to not trust anyone, trusting me to handle their affairs.”

As published in Human Rights, Fall 2006, Vol. 33, No. 4, p. 17-22

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