May 23, 2006

Judge Steps In for Poor Inmates Without Justice: Judge Arthur L. Hunter Jr. has suspended criminal prosecutions in most cases involving public defenders in New Orleans.


NEW ORLEANS - Hurricane Katrina took his house, his courtroom and, Judge Arthur L. Hunter Jr. says, his faith in the way his city treats poor people facing criminal charges.

Nine months after the storm, more than a thousand jailed defendants have had no access to lawyers, the judge says, because the public defender system is desperately short of money and staffing, without a computer system or files or even a list of clients.

And so Judge Hunter, 46, a former New Orleans police officer, is moving to let some of the defendants without lawyers out of jail. He has suspended prosecutions in most cases involving public defenders. And, alone among a dozen criminal court judges, he has granted a petition to free a prisoner facing serious charges without counsel, and is considering others.

It is, he said in an interview, his duty under the Constitution. "Something needs to be done, it's that simple," he said. "I'm the lightning rod, yes."

The district attorney's office opposes letting defendants back out on the street, saying the court should find them lawyers. But Judge Hunter said he has had little luck finding private firms willing to take on most indigents' cases, and there appears to be no money to pay their expenses.

The public defenders' office, run not by City Hall but by a parish board, is basically broke. Louisiana, alone among the states, relies mainly on local court fees — mostly surcharges on traffic tickets — to finance its public defenders, according to the National Legal Aid and Defender Association.

It is a financing system that Judge Hunter and Calvin Johnson, the chief judge of the criminal court in New Orleans, have recently found to be unconstitutional because it forces poor people to pay for the system. The Louisiana attorney general's office says it plans to appeal those decisions.

In Orleans Parish, the traffic and the tickets both evaporated after Hurricane Katrina. Most of the office's 42 part-time public defenders were laid off. And they were, by many accounts, inadequate to begin with; a new study sponsored by the federal Justice Department <> says that the office probably needs 70 full-time lawyers, a computer system for case management, support staff and a reliable source of financing.

The study calls for scrapping the current system, which an appeals court decision recently described as "overburdened, underfunded and perhaps unconstitutional." The public defenders' office in New Orleans is slated to receive a $2.8 million federal grant on May 31 — but the study says it needs more than $10 million to get up and running and operate for a year.

The criminal justice system in New Orleans was notoriously troubled long before the storms, and if anything, it is now worse. Officials hope to resume jury trials soon for the first time since Hurricane Katrina, but still do not know if they will have enough courtrooms, jurors or witnesses to proceed.

On a recent Friday morning, in a borrowed courtroom in the Federal Building downtown, Judge Hunter listened to testimony from Ronald Dunn, 43, who was arrested on Aug. 19, 10 days before Hurricane Katrina hit, on a charge of possessing crack cocaine. Like the vast majority of the defendants in criminal court here, he cannot afford to hire a lawyer, and so would normally be represented by a public defender.

Handcuffed, shackled and wearing jailhouse orange, Mr. Dunn told the court that as the water rose, he spent four frightening days without food in the House of Detention, and was then moved from prison to prison, losing touch with his family.

In the nine months since the hurricane, he said, he has never even spoken to a lawyer. "I don't have a lawyer," Mr. Dunn said. "I never been to court." Without a lawyer a defendant cannot even plead guilty.

Pamela R. Metzger, the director of the Criminal Court Clinic at Tulane Law School, has petitioned the court to release Mr. Dunn and more than a dozen other poor prisoners in similar circumstances. Releasing them would not hamper the prosecution, she argued, and would give them an opportunity to try to gather evidence in their own defense. And, she said later, "to be free from imprisonment and punishment without due process of law."

But David S. Pipes, an assistant district attorney, argued against releasing Mr. Dunn, whom he described as a five-time felon. (Court documents show that Mr. Dunn has been arrested 10 times since 1990 and has pleaded guilty to previous drug and theft charges.)

More broadly, Mr. Pipes said: "The proper solution for someone who does not have an attorney is to get them an attorney. Releasing them does not cure anything and does not protect their rights."

Of course, everyone in the courtroom could describe a life turned upside down by Hurricane Katrina. Mr. Pipes is working out of an office in an old nightclub because the district attorney's office flooded. Professor Metzger is commuting to New Orleans from Atlanta.

And Judge Hunter is driving back and forth to Tampa, Fla., where his family fled, or Baton Rouge, where he has bought a house where he plans to live with his wife and teenage son, a cousin and a widowed aunt.
Over the years, the district attorney and others have accused Judge Hunter of being too soft on defendants, and of having too high an acquittal rate in nonjury trials. (He says he is simply fair.) But even longtime critics like the independent Metropolitan Crime Commission say that when it comes to the public defenders' office, he is doing the right thing.

"I don't have any problem with what he's trying to do there," said Rafael C. Goyeneche III, president of the commission. "He's demanding that it function properly."

The battle over indigent defendants is proceeding on several levels. Last month, Judge Hunter granted a petition for release filed by Professor Metzger on behalf of Donald Crockett, a mentally ill man accused of being a felon in possession of a firearm. He has been in jail since October 2003.

The district attorney's office appealed, and an appellate court found that additional procedural steps were required. Though it reversed the judge's decision, the court suggested such releases might be possible once the program completely runs out of money. Professor Metzger said she planned to appeal to the Louisiana Supreme Court.

Gov. Kathleen Babineaux Blanco has submitted a budget that would double, to $20 million, the appropriation for defenders around the state, and a legislative task force set up before Hurricane Katrina continues to work on the issue.

The Louisiana State Bar Association has made fixing the public defender system a priority and has paid for both another study and for the salaries of three defenders for a year, said Frank X. Neuner, president of the bar association. In Orleans Parish, the criminal court judges have appointed new directors (including Professor Metzger) to oversee the public defenders' program.

Judge Johnson, who runs the criminal court and is a former public defender himself, has been working to build a consensus for changing the system, something he said he has supported for years. He was the first judge after Hurricane Katrina to order an investigation into whether the public defenders could adequately represent the poor.

But having Judge Hunter halt prosecutions and consider freeing inmates has helped focus attention on the issue, Judge Johnson said.

"You have to have some guy out there rattling the saber, absolutely," Judge Johnson said. "I think the message was loud, clear and necessary."