D.A.’s office, private attorneys battle over responsibility for indigent clients
4th April 2016 · 0 Comments
By Della Hasselle
Contributing Writer
What happens to an impoverished defendant when there isn’t enough money to cover his or her defense?
A local judge has been tasked with answering that question amid a widening budget crisis, as the Orleans Parish D.A.’s Office spars with private attorneys over who exactly is responsible for the indigent when state and local funds dwindle away.
The latest legal snarl began in March, when a handful of private attorneys were asked to represent seven pretrial defendants after Orleans Public Defender Derwyn Bunton turned them away, citing a shortage of lawyers in his “overburdened” and “grossly underfunded” office.
Instead, the new attorneys asked judges to release or halt the prosecution of the men, all of whom were facing serious felony charges, including murder and rape, and if convicted potentially faced life without parole.
The impoverished defendants had languished in jail for months, advocates said, while their cases stalled due to budgetary deficits so severe they amounted to “catastrophic” failures of the public defense system. Simply put, the men’s attorneys said they could not represent their clients without proper funding.
In a motion spearheading a plea for their release, Tulane University law professor Pam Metzger told Criminal District Court Judge Arthur Hunter that the men had been held in “illegal custody” because budget constraints had ultimately deprived them of effective counsel and stripped them of their constitutional rights.
“Even if private counsel are forced to accept appointment to Petitioners’ cases, this Court is, and will continue to be, unable to locate a source of funds to cover private counsel’s overhead and out-of-pocket costs,” Metzger said. “So, unless this Court grants Petitioners’ requests for release, their Due Process rights will continue to be violated indefinitely.”
At first, Orleans Parish District Attorney Leon Cannizzaro remained quiet while lawyers brought their requests before the courts. On Thursday, however, his office blasted the attorneys in a five-page response, saying the group was merely “hoping for a paycheck,” and advocated for “nothing less than anarchy” by asking to cease to their clients’ prosecutions.
“Halting prosecutions and releasing defendant does not protect anyone’s rights. It does not provide anyone with justice. It neither move cases forward nor solves systemic problems,” wrote Assistant District Attorney David Pipes. “It merely allows so-called professionals to shirk their professional responsibilities to the detriment of us all.”
The seven men’s attorneys were expected to give an official response to the state in early April. But during a tense court hearing on Thursday, lawyers made a point to blast the state’s court filing in open court, calling it “a tragic situation.”
“This is a low point in what has been a shocking violation of justice,” Metzger rebuked. “Shame on the state.”
At the core of the legal issue is the question of who becomes responsible when the state fails to fund lawyers tasked with representing poor people charged with crimes, a fiasco that the chief public defender claims has been long in the making.
For years, Bunton has decried an “inadequate, unstable and unreliable” scheme that relies mostly on traffic tickets and other user-pay fees to fund public defense on a local level. Those fees, which vary from year to year, are not enough to plug budget deficits that keep gaping during statewide cuts.
In New Orleans, the situation is especially dire, Bunton has said. Altogether, about 85 percent of people charged with a crime in the city are represented by public defenders, because they can’t afford a private attorney.
According to a report released in 2006, the office needs an $8.2 million budget to protect its clients’ constitutional rights. Yet last year, the office struggled to get by on a $6.2 million budget, ultimately ballooning caseloads for the office’s roughly 50 attorneys.
Last summer, Bunton began implementing an austerity plan that called for a hiring freeze and furloughs, among other measures.
Then, in January, his office started refusing cases, mostly involving serious felonies like murder, rape and kidnapping.
Now, the situation is slated to get worse, as Gov. John Bel Edwards has proposed a 62 percent cut next year in the budget set aside for public defenders, an amount that last year added up to $33 million in local revenue for all districts across the state.
Meanwhile, as purse strings continue to tighten, the waiting list continues to grow.
And although they remain in jail, prosecution has already halted for at least one of the seven men featured in the petition placed before Hunter.
In February of last year, Donald D. Gamble, Jr. was arrested and charged with armed robbery and assault. Later that year, he was arrested again and charged with illegal carrying of a weapon, and was unable to make bail.
After the court determined there were no funds to his counsel’s expenses, it ordered a halt to his prosecution. According to legal filings, he’s been in jail without a lawyer to assist him for more than 80 days.
Others have motions to halt their cases still pending before the court. Among them is Alex Bernard, who is charged with robbery, battery, and assault, and has been incarcerated for more than 100 days, all without assistance of counsel.
Darrian Frankin, who was charged with second degree murder in 2014, has been without a lawyer for about 140 of the more than 560 days he’s been in jail.
And those clients represent just a fraction of those who remain in limbo, as Bunton’s office has withdrawn from more than 100 cases so far this year.
In many ways, the legal spectacle is a case of déjà vu, because both Bunton and Hunter have been through this before. In 2012, Bunton’s office was left with a $2 million shortfall after the city and state slashed funding. During what the media called a “bloodletting,” the defender laid off 27 staffers.
In response, Hunter called a special hearing, demanding that private lawyers start taking public defense cases pro bono. Among the high-profile lawyers asked to serve was Louisiana State Senator J.P. Morrell.
Now, Cannizzaro’s office has questioned whether the lawyers’ motions to refuse cases equal a “manufactured stunt intended for political effect” or “a symptom of gross mismanagement on all levels of state government.”
Several lawyers on Thursday said they took offense to the characterization, pointing out hundreds of hours spent every year on pro-bono work, and money required not just for lawyer’s paychecks, but to pay for critical services needed to move a case forward, such as investigation and overhead.
“To say I’m being selfish is wrong, unethical and is complete misreading of the law,” said John Adcock.
Adcock said he did more than 250 hours of free advocacy work for clients like Glenn Ford, a man freed from death row after 30 years, who died from lung cancer last summer shortly after being exonerated.
Lawyer Gregory Carter agreed. “There is no reason to go accusing the lawyers of being greedy when all we’re asking is to be able to pay for those parts of a defense that every client is supposed to be getting,” he said.
Nick Trenticosta told Hunter the state didn’t appear “to have a clue” about the issues pending before the court and asked that its response be stricken altogether.
“I’ve been a professional licensed attorney for 29 years. I’ve never seen a pleading like this. Ever,” Trenticosta said.
Hunter declined to take any action during the hearing Thursday, but was expected to make a decision within a week of whether or not to release any of the seven men.
This article originally published in the April 4, 2016 print edition of The Louisiana Weekly newspaper.
