FROM
LOS ANGELES TIMES
November 20, 2005

2,500 Arrested Before Katrina Are Still in Limbo:
At the heart of the problem is a public defender system almost too broke to
function.
By Henry Weinstein
Times Staff Writer

Nearly three months after Katrina struck Louisiana, about 2,500 people
arrested on minor charges before the hurricane struck are still in custody.
A number of them have never been charged, many are being held beyond the
time they were due to be released, and hundreds have never had a court
hearing.

Their plight is one of many troubling issues facing the Louisiana court
system, where funding for public defenders, among other problems, has been
further imperiled by the storm.

When the storm struck, about 8,500 people being held in the New Orleans
jails were relocated to facilities throughout - and, in some instances,
outside - the state.

A small group of volunteer defense lawyers has filed writs and obtained the
release of more than 1,800 of the evacuees, said Phyllis Mann of Alexandria,
La., who has been coordinating the effort.

Still, Julie H. Kilborne, a Baton Rouge, La., defense lawyer also involved
in the effort, said Friday she expected that the attorneys would have to
litigate for many more weeks to secure the freedom of the hundreds still
incarcerated on minor charges.

Over the last two weeks, in hearings in Baton Rouge, Judge Calvin Johnson,
the chief criminal court judge from New Orleans, ordered more than a hundred
people released. But the Orleans Parish district attorney's office appealed;
a state appellate court and then the state Supreme Court stayed the release
order.

Asst. Dist. Atty. Donna Andrieu asserted, among other things, that there was
"just cause" for holding the detainees longer because Orleans Parish
prosecutors, dislocated from their office, had not had sufficient time to
make decisions on whether to charge various people.

Andrieu also asserted that among the reasons prosecutors had been unable to
make decisions on whether to charge certain people was the breakdown in
communication experienced by the New Orleans Police Department after the
storm. Defense lawyer Neal Walker cited a breakdown of discipline -
including criminal activity - in the city's police force.

The Louisiana Supreme Court is scheduled to consider the merits of the
arguments early this week.

In a related development, the American Civil Liberties Union filed papers in
a Louisiana federal court Thursday that provided disturbing accounts about
45 men and women who were incarcerated in the Orleans Parish Prison when
Katrina struck.

"It was like we were left to die. No water, no air, no food. We were left
with deputies that were out of control," said one woman, identified in court
papers as "Inmate #19." She said the women eventually were abandoned by
guards, left with nothing to eat or drink, and that many of them drank water
out of trashcans.

Another prisoner, identified as "Inmate #41," said he saw "a few dead
bodies, and [we] were told not to say anything or we were going to be like
them."

The ACLU represents the prisoners in an ongoing federal class-action lawsuit
that started years ago and led to some reforms.

Meanwhile, the state's public defender system, considered one of the worst
in the nation, suffered a further blow when Gov. Kathleen Babineaux Blanco
announced plans to cut $500,000 from its budget.

On Saturday, state Sen. Lydia P. Jackson, a Shreveport Democrat, said she
thought that about half of that money would be restored by the Legislature,
which is meeting in emergency session.

Still, Jackson said, the local public defender offices are in "dire need" of
additional funds because of revenue lost since the hurricane.

In addition, three-quarters of the public defenders in New Orleans, the
state's largest city, have been laid off, and there is no expectation that
they will be rehired soon.

Louisiana is the only state in the country that primarily finances its
indigent defense through traffic fines. In the best of times, this source of
funding is erratic.

There is a clear reason that Louisiana stands alone, said David Carroll,
research director of the National Legal Aid and Defender Assn. "There is no
direct correlation between the ability of a jurisdiction to garner money
through traffic tickets and the resources required to provide adequate
defense services to those unable to hire an attorney," Carroll said.

Moreover, since Katrina, those funds have slowed to a trickle, as law
enforcement has been writing considerably fewer traffic tickets in the Bayou
State.

Earlier this year, the state Supreme Court issued a unanimous decision
stating that Louisiana had failed to adequately fund a program to provide
attorneys for poor defendants, as required by the constitution.

The ruling said that the obligation to provide a properly functioning
indigent defense system, which represents 80% of the state's defendants,
falls "squarely on the shoulders of the Legislature," which "may be in
breach of that duty."

But the decision did not order the Legislature to take any specific action,
and there has been little since then. An indigent-defense task force, headed
by Jackson, the state legislator, authorized further study of the system -
but the hurricane came before it was launched.

Since the hurricane, some legislators, judges, attorneys and others have
been holding meetings on the problem, but there is no imminent solution.

"In terms of indigent defense, the Legislature is doing absolutely nothing,"
said Baton Rouge attorney James Boren, former president of the Louisiana
Criminal Defense Lawyers Assn. Moreover, Boren said he was outraged that as
soon as the Legislature convened in special session, lawmakers approved a
bill that would shield from liability the state Department of Corrections
and any local sheriff's department that held people arrested before Katrina
longer than was warranted.

In another sign of the depth of the problems, the Louisiana Indigent Defense
Assistance Board, the agency responsible for distributing funds to local
public defender offices, has not had a meeting since the hurricane hit
because it has been unable to muster a quorum.

Particularly troubled by the situation is Judge Johnson, who has a long
history with the issue. In 1992, Johnson ruled that the state's public
defender system was unconstitutional because it was so underfinanced and
understaffed that poor defendants could not receive an adequate defense.

Johnson acted after hearing from Rick Teissier, the public defender assigned
to represent Leonard Peart, a man charged in the rape, robbery and slaying
of a Tulane student. Teissier said he had a caseload so excessive that he
could not function properly. At the time, Teissier, who was being paid
$18,500 a year as a part-time public defender, was handling 70 active felony
cases. He was unable to see a new client until 30 to 70 days after the
person had been arrested; in the first seven months of 1991, Teissier
represented 418 defendants.

A 1993 Louisiana Supreme Court decision concluded that defendants in the
division of court where Peart was on trial were entitled to hearings on the
adequacy of their representation. But the justices overturned Johnson's
ruling that the entire system was unconstitutional.

Since that time, there have been numerous scholarly studies criticizing
Louisiana's public defender program.

Johnson has called a conference Monday to discuss the future of the system.
He has ordered the participation of Tilden Greenbaum, head of the Orleans
Parish Indigent Defense Board; lawyers who run criminal defense clinics at
Tulane and Loyola universities' law schools; and Teissier, now a private
defense lawyer in New Orleans.

The judge's order said the Orleans Parish criminal justice system faced "a
crisis . that requires prompt attention."

He said the thousands of pending cases involving indigent defendants there
with a public defender staff of only nine lawyers created "at least a
serious question, if not prima facie evidence, that indigent defendants in
Orleans Parish are not [receiving], and cannot receive, the effective
assistance of counsel to which they are constitutionally entitled."

Carroll, research director with the national defender association, prepared
a report last year on the problems with Louisiana's public defender system.
He called for the state to spend at least five times as it much it had been
for indigent defense.

"I realize that Louisiana has a mountain of problems they have to fix," he
said. But he added that the hurricanes had "hastened the rate at which an
already failing indigent defense system is being pushed closer to complete
devastation." He said that if the state failed to act soon, it would face a
constitutional crisis.

The right to counsel "does not stop when there is a hurricane," Carroll
said. "You can't take away a person's freedom simply because you did not
plan well before a hurricane."

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