Sometimes change is sudden, unsettling, and dramatic. Hurricane Katrina effected change with a vengeance. Water lapped at the criminal district courthouse steps and drowned the evidence room, prisoners saved from the floodwaters baked out on the 100-degree highway before getting lost in the system for months, the indigent defense structure, such as it was, blew away with the last of the hot winds.
At other times, change is slow, barely perceptible, and creeps along in painfully small increments. That is the case with the rebuilding of the indigent defense structure in New Orleans. If we are lucky, that system will be nothing like it was. To understand the profundity of something as simple as a public defender’s office having its own office space, one has to understand a bit about how terribly broken the indigent defense system was before Katrina—mercifully—demolished it.
A Pre-Katrina Disaster
Every outside expert who has studied indigent defense in New Orleans has concluded that the system was a disaster—among the worst in the nation. The Department of Justice Bureau of Justice Administration described it as “court-based,” catering primarily to the needs and convenience of the court and the individual criminal court judges rather than to those it was supposed to serve—its clients.
The New Orleans Public Defender’s Office was composed of forty-two attorneys who, save a few exceptions, were part time and were paid relatively small salaries. The public defenders maintained private practices that included private criminal cases in Orleans Parish. Because they were salaried, there was a perverse financial incentive to spend as little time as possible on their public cases so they could devote more time to private ones.
Cases were rarely investigated. Witnesses were rarely tracked down and interviewed. Public defenders infrequently visited their clients in jail or met with their families. Little, if any, time was spent preparing and filing motions or researching legal issues. Public defenders appeared in their designated courtrooms on their scheduled days, handled whatever matters were on the docket that day as quickly as possible, and then left to attend to their private practice or other matters.
Because the public defenders handled private criminal cases in the same courthouse as their public cases, there was an incentive to please the judges—or at least not anger them—and gain favorable treatment for their paying clients. This coincided nicely with the judges’ and prosecution’s interest in moving through the docket as fast as possible. Most days, most courtrooms were empty by lunchtime.
To encourage the speedy resolution of cases, individual public defenders were assigned by courtroom, not by cases or clients. Each handled whatever came through the courtroom doors on that day, attending to the needs of “his” or “her” judge, who referred to the defender as “my” public defender. Indeed, one district court judge famously paid one of the public defenders extra money out of court funds so that the defender would give up private practice and be “his” public defender full time. That judge no longer sits in the Orleans criminal district court. He was promoted to the intermediate appellate court.
This courtroom-based system of representation has had devastating consequences for indigent defendants in New Orleans. In Louisiana, the prosecution has forty-five days in the case of misdemeanors and sixty days in the case of felonies to file charges. The accused are usually held in jail during this time because they are too poor to post the draconian bonds set at the initial appearance. The horizontal structure of the New Orleans Public Defender’s Office would leave an accused person unrepresented—hence, no investigation, few preliminary hearings, no bond reduction motions, no preservation of exculpatory evidence—for upward of two to three months. Only after formal charges were filed was a case allotted to one of twelve divisions of the Orleans Parish Criminal District Court. Only for arraignment, which may be up to another thirty days later, did the accused finally meet a public defender and obtain any sort of attorney for representation.
The primary source of funding for the office was, and still remains, fees assessed on every conviction, including municipal and traffic violations and bond forfeitures, creating a perverse interest in the public defender’s office as a whole: its funding is based on bad outcomes for its clients.
To further intertwine the public defenders with the court, the “office” consisted of a single room in the courthouse where coats, briefcases, and umbrellas could be left. There was no privacy for attorneys to meet with clients, families, or witnesses, and the attorneys did not have their own computers, telephones, or desks. Of the four working computers, only two had Internet access, and the two phone lines did not have voice mail. The office consisted of a few file cabinets, several shared desks, and a single copier for the entire staff of forty-two attorneys.
The public defender’s office is supervised by a board of directors appointed by the criminal district court judges. Before and immediately after Katrina, this board consisted of private criminal defense attorneys who regularly practiced before the judges who appointed them. Indeed, the chair of the board was the attorney for the police officers’ foundation and routinely represented police officers accused of misconduct. The board exercised direct control over hiring and firing and the assignment of attorneys. Overall, the system sorely lacked independence from the judiciary and had no semblance of competent, client-centered representation.
The Immediate Post-Katrina Havoc
While Katrina clearly wreaked havoc on the lives of many who were jailed when the hurricane hit New Orleans, the foregoing description demonstrates that there was little to lose for the indigent defense system. After Katrina wiped out the primary source of funding for the office—fees on traffic tickets—the staff was reduced to six attorneys and one support person to handle more than 6,000 open cases. No one knows the actual number of open cases because the office had no case management system. Large numbers of cases never had even a paper case file, let alone an electronic one. Because the office itself was not flooded by Katrina, this shortcoming can be attributed to poor office practices.
Change and Resistance
In April 2006, the old board of directors was finally ousted and a new, more professional and independent board was installed. It is composed primarily of attorneys who do not practice before the criminal district court judges. The new board brought on a new management team to reform and rebuild the office in the summer of 2006. That team includes Ronald Sullivan as chief consultant, Jonathan Rapping as training director, Christine Lehmann as special litigation counsel, and me as chief of trials.
The first change one will notice is that there actually is a physical public defender’s office. The public defenders have leased an entire floor of an office building a half block from the courthouse and jail. The office has a reception area, a conference room for meetings and training, and private interview rooms. It has furniture donated by the Minnesota Bar Association. The attorneys have offices with doors so that they can work and meet with clients, families, and witnesses in private. Each attorney has a desk, a telephone with a personal extension, and voicemail. Each has a laptop networked through individual docking stations their desks with an office-wide e-mail system, financed through a donation from the Louisiana State Bar. The District of Columbia Public Defender Service donated a state-of-the-art case management system, which is being installed. These seemingly ordinary aspects of any modern, functioning law office are nothing short of revolutionary for the New Orleans public defenders.
Another major change was the added requirement that all public defenders be full time and give up their private practice. Despite a salary increase, on par with the Orleans Parish District Attorney’s Office, the change to full time caused an outcry from some public defenders, several of whom vacated their positions, as well as judges. Feeling the small breeze of change beginning, many judges objected, strongly preferring their dependent, part-time public defenders.
These judges played out their objections in the media and in court. The switch to full-time representation initially left some temporary gaps in representation, all of which were quickly filled. Suddenly and ironically, these judges were interested in the lack of representation for clients for whom they had shown little regard until this point. As a result, the judges have threatened to hold me in contempt over a half dozen times since I joined the office. They issued a contempt order and scheduled a contempt hearing against the top management and directors of the office for failure to assign and staff the office in the manner the judges desired. The judges backed down when confronted with negative press and a governing statute that prohibits them from participating in the management decisions of the office.
More recently, the chief judge of the Juvenile Court in New Orleans held me in contempt and incarcerated me at the Orleans Parish prison because he was dissatisfied with the way the court was being staffed and refused to discuss the status of reform in the public defender’s office. I was released after several hours when the intermediate appellate court stayed the contempt ruling, which was later dismissed. The judge and I met, talked about the pending reforms, and both subsequently appeared on the local news, speaking the same pro-reform message. Shortly thereafter, the office contracted its juvenile cases with a national, award-winning juvenile services organization.
Instead of relying upon an old guard, the office hired a new crop of energetic, committed young attorneys in the fall of 2006. Instead of being sent into courtrooms without any training, as their predecessors were, the newcomers were provided with intensive, weeklong training programs. The office plans to hire its second “class” of new attorneys this fall and is actively recruiting dedicated law students from around the country. This sort of nationwide recruitment is light years away from the old system of “appointments” among local friends.
In addition, the public defender’s office is in the process of converting to a structure of vertical representation that provides continuous representation from first appearance, within twelve to twenty-four hours of arrest, through the conclusion of the case. The first step in this process is also meeting with judicial resistance. To make this conversion, the office must cover the huge backlog of cases in the sections, and it has relied upon an emergency pro hac vice rule passed for this purpose. The rule has allowed the office to create partnerships with the Public Defender’s Offices in Minnesota, Philadelphia, and Washington, D.C.—all top-flight offices—which are sending two or three attorneys each for six-month sabbaticals to help represent indigent clients.
Again sniffing the winds of change, the chief judge refused to allow any out-of-state attorney to practice in his courtroom without a Louisiana lawyer literally by his side at all times. The rule does not require this, but change comes hard, and many of the judges will not go down without a fight.
Many of the judges have complained vociferously that the reform effort is a waste of money and that, against all reports, the criminal justice system in New Orleans worked just fine before Katrina and the public defender’s office simply needs to return to the way it was. These judges have complained that money for proper office space, for computers and a modern telephone system, and for proper salaries for full-time attorneys are all a waste of resources. Yet, the current board and management team of the New Orleans Public Defender’s Office are striving for more than recovery from a storm. We are fighting for real justice for real people for the very first time.
As published in Human Rights, Fall 2006, Vol. 33, No. 4, p. 9-11