They tried to expose Louisiana judges who had systematically ignored prisoners’ petitions. No one listened.

13th November 2023   ·   0 Comments

By Anat Rubin
ProPublica

Editor’s Note: This is the first of a three-part series.

Prologue
Two years into his 25-year sentence for attempted aggravated rape, Nathan Brown could tell the man sitting across from him – a jailhouse lawyer improbably named Lawyer Winfield – was not going to help him get out of prison. It was astounding to Brown that he was pinning his hopes on a fellow inmate who had an eighth-grade education and whose formal legal training amounted to a prison paralegal course.

“But he knew more than I did,” Brown said.

Brown laid out for Winfield the details of his case. In the summer of 1997, a woman was assaulted in the courtyard of the apartment complex in Jefferson Parish, where Brown was living with his mother. The woman, who was white, fended off the attacker with her high-heeled shoe until he fled on a bicycle. When sheriff’s deputies arrived, a security guard suggested they question Brown — one of the few Black tenants in the complex.

Brown, 23 at the time, was in his pajamas, rocking his baby daughter to sleep. The deputies put him in handcuffs and brought him to the victim. When she couldn’t identify him, the officers allowed her to get close enough to smell him. She had told them her attacker had a foul body odor. Brown, she would later testify, smelled like soap; he must have showered immediately after, she speculated. In a trial that lasted one day, the jury found him guilty. After his appeal was rejected, he no longer had a right to an attorney provided by the state.

Winfield began translating Brown’s grievances into a legal petition. He argued that Brown’s lawyer had provided ineffective counsel: He had overlooked the most basic defense strategies, failing to challenge the discrepancies in the victim’s story and to insist on DNA testing. The two of them worked on the petition for months, so Brown was surprised when the Louisiana 5th Circuit Court of Appeal delivered a rejection just a week later. The denial – a single sentence that didn’t address any of Brown’s claims – bore the names of three judges. But something didn’t feel right. How could they return the ruling so quickly? Why was it so vague?

The answer to those questions would come years later, in the suicide note of a high-level court employee who disclosed that the judges of the 5th Circuit had decided, in secret, to ignore the petitions of prisoners who could not afford an attorney.

It was a shocking revelation. In a state where police and prosecutorial misconduct frequently make national headlines and a stream of exonerations has revealed a criminal justice system still functioning in the shadow of slavery and Jim Crow, a group of white judges had decided that the claims of hundreds, perhaps thousands, of inmates – most of them Black – were not worth taking the time to read.

Among those petitions was Brown’s claim that a DNA test would have proven his innocence.

Part I: A death at the courthouse

On a warm Monday morning in May 2007, as the secretaries and clerks began filing through the glass doors of the Louisiana 5th Circuit Court of Appeal, staff director Jerrold Peterson was inside his office with a 9 mm Beretta pistol. A letter he had written to the court’s eight judges was making its way to the chambers of Chief Judge Edward Dufresne Jr. Versions of that letter were en route to the Judiciary Commission, the panel responsible for investigating allegations of judicial misconduct, and to the Times-Picayune, the state’s most influential paper.

Peterson hoped the letter would unleash a massive scandal – one that he had helped perpetuate for more than a decade. Fifty-five years old, Peterson had long been a fixture at the courthouse, and he reminded the judges that he had kept their secrets, clearing contempt charges against their friends and fixing traffic tickets whenever they asked. But he focused his rage on one secret in particular: their handling of appeals sent to the court by prisoners who claimed they’d been unjustly convicted.

Louisiana requires that a panel of three judges review all such petitions – known as pro se petitions, a Latin phrase that means “for oneself.” But Peterson wrote that the judges had instructed him to ignore the law and dispose of the appeals on his own. Dufresne, he explained, signed off on the documents “without so much as a glance.”

The implications were staggering. Over 12 years, the 5th Circuit, which is responsible for reviewing challenges from trial courts in four parishes, had disregarded at least 5,000 pro se petitions from Louisiana prisoners, according to the court’s records. The inmates ranged from people convicted of murder to nonviolent offenders sent away for life. Many had limited education and struggled to present their arguments in the language of the courts. If Peterson’s accusations were true, none of the judges had ever laid eyes on their claims.

Peterson, who was known to keep his door open, didn’t answer the business services manager when she came by to tell him that Dufresne wanted to see him. The chief judge instructed her to have the head of security unlock the door. As he slid in his passkey, the sound of a gunshot echoed through the building.

A police detective arrived at the courthouse and found Peterson at his desk, slumped to one side, the Beretta still clutched in his right hand. The rest of the office, the detective wrote in his incident report, “seemed to be void of any further evidence.”

When the officer searched the room a second time “for a final attempt to locate a possible suicide note,” Dufresne joined him. The chief judge didn’t mention that he had already read Peterson’s suicide letter. The detective, though, sensed something was amiss. In his report, he noted that Dufresne “appeared to be evasive.”

The 5th Circuit courthouse sits on the edge of downtown Gretna, a sleepy New Orleans suburb of 17,000 that serves as the government seat for Jefferson Parish. A tight bend in the Mississippi River separates Gretna from New Orleans, but politically and socially, the two are much further apart.

Connecting the cities are twin bridges that became notorious after Hurricane Katrina when thousands of New Orleans residents tried to evacuate over the span but were forced back by a line of Gretna police officers. For many Black people in Louisiana, the moment encapsulated the hostility of the suburb, an area shaped by white families who had fled school desegregation half a century earlier.

On the Gretna side of the bridge, the road becomes the Harry Lee Expressway, named for a sheriff of the parish who was elected in 1979 and returned to office six times on a platform of aggressive policing. Lee once proudly announced that he had ordered his deputies to stop any “young Blacks” they might find driving at night in a white neighborhood.

“There’s a pretty good chance they’re up to no good,” he explained.

During Lee’s tenure, the voters of Jefferson Parish sent David Duke, the former grand wizard of the Ku Klux Klan, to the Louisiana House of Representatives for a term.

Dufresne’s ancestors were among the area’s early settlers. His father, a plantation owner known as Big Eddie, built a white-columned brick home at the edge of his sugarcane fields in the neighboring parish of St. Charles. Dufresne, known as “Little Eddie,” launched his first campaign – a successful run for clerk of court – while he was still in law school.

After he won a seat on the court, a local publication called him “the Thomas Jefferson of St. Charles government” and asked, “Can Eddie Dufresne Jr. go cold turkey on politics now that he’s a judge?” The answer was no. By the time he was elected to the newly formed 5th Circuit Court in 1982, he had become a power broker like his father, weighing in on disputes and promoting politicians he favored. Each spring, he hosted a lavish crawfish boil on the riverfront that drew sheriffs, businesspeople, judges and public officials.

Long before he became chief judge in 2001, Dufresne dominated the 5th Circuit. On most weekdays, he would arrive at the courthouse in the passenger seat of one of his Cadillacs, driven by his longtime secretary, who would pick him up at the plantation house. Yet he was perceived by many as a “real salt-of-the-earth kind of guy,” as one lawyer put it. He earned the loyalty of staff by keeping work hours short – he would often leave at 2 p.m. – and wages high.

“Dufresne ran a court for the benefit of the judges,” another lawyer told me.

During a monthly meeting of the 5th Circuit’s judges in 1994, he proposed changing how the court handled criminal pro se petitions, also known as writs. The minutes note the proposal but only in passing; it’s sandwiched between a lengthy debate over plans to upgrade the court’s computer system and a discussion about renting a new office copier.

Dufresne’s plan is described in two sentences: A three-judge panel would no longer rule on the petitions unless they were “special or unusual”; instead, Dufresne would oversee them himself.

“Administratively, it got somewhat cumbersome to have to select three-judge panels for every writ, because you’d get hundreds of them,” said Bryan Pedeaux, who was Dufresne’s longtime law clerk. “So Dufresne said, ‘Let’s see if we can somehow streamline the situation.’”

At the time, the 5th Circuit had the lowest caseload – and the lowest number of pro se petitions – of the state’s five appellate courts. In the year preceding the meeting, it reported 235 criminal pro se petitions, fewer than one-tenth of the statewide total. The 4th Circuit, which includes New Orleans, reported 1,031.

Dufresne’s proposal was in keeping with his judicial views, former staff members told me. He believed that people convicted of crimes were almost certainly guilty and that any issue they raised on appeal was an attempt to avoid paying for their actions. He almost never reversed a decision of the lower criminal courts.

“There was a total prejudice against all people charged and convicted of crimes,” said a former law clerk. “They never planned to give any of these people any relief anyway, so what difference does it make?”

The minutes give no hint of why the judges believed they could circumvent the state’s law. Although Peterson attended the meeting, his future role in drafting rulings on the court’s behalf is not mentioned. Still, it was clear Dufresne was offering to substantially reduce the judges’ caseloads: At the time of that meeting, more than 75 percent of the court’s post-conviction petitions came from prisoners without an attorney. The change went into effect immediately.

ProPublica made multiple attempts to contact each of the three 5th Circuit judges who presided during the relevant years and are still alive. ProPublica also asked for comment from the 5th Circuit courthouse. None responded.

Entrusted with overseeing the new protocol, Peterson developed a system to dispense with the prisoners’ applications speedily. He drew up 15 rulings for his assistant to cut and paste; they were typically no longer than one or two sentences and ambiguous enough to fit a wide range of claims. A couple of the rulings were labeled “grants” but did little more than allow prisoners access to their trial transcripts.

Sixty years ago, the U.S. Supreme Court ruled in Gideon v. Wainwright that the Sixth Amendment guarantees all criminal defendants the right to an attorney. But in most states, including Louisiana, that right ends after an appeal of the initial conviction. Every subsequent appeal is part of the post-conviction process, an area of law that even experienced lawyers find challenging.

Judges often view pro se appeals skeptically because they are filed by people who are not only untrained in the law but sometimes barely literate. Even liberal courts struggle with the high volume of petitions that lack merit. They are frequently assigned to clerks, who tend to recommend that judges dismiss them on technical grounds to avoid having to unravel what they see as frivolous or poorly made arguments. Still, the post-conviction process is essentially the only avenue prisoners have to introduce new evidence of their innocence or to persuade the court a defense attorney didn’t do their job.

There is overwhelming evidence that state courts routinely send innocent men and women to prison. Researchers estimate that at least one percent of those serving time for violent offenses have been wrongfully convicted – roughly 7,000 inmates in state prisons alone – though they believe that number is much higher.

Louisiana law says that people sentenced to death are entitled to court-appointed lawyers for all of their appeals. Subjected to such scrutiny, an astounding number of the state’s prosecutions have fallen apart. Since 1976, 82 percent of Louisiana’s death sentences have been overturned by appeals judges after defense attorneys exposed serious violations that occurred at trial. Most sentences were reduced to life; some prisoners were exonerated.

That statistic underscores a fundamental inequity. The people sentenced to lengthy or life sentences were arrested by the same police forces, prosecuted by the same district attorneys, represented by the same public defenders and convicted in the same courts as those on death row, but they are on their own. When they file a pro se petition asking Louisiana’s appellate courts to reconsider their cases, they are at a significant disadvantage. Those petitioning the 5th Circuit after that meeting in 1994 had no chance at all.

To create the appearance of a proper review, former staffers said Dufresne formed a “pro se committee,” which included three judges who agreed to lend their names to Peterson’s rulings. Whenever a judge on the committee retired, Dufresne appointed someone new. The nature of the pro se committee was an open secret at the courthouse. “I knew what they were doing, and I knew it was unconstitutional,” said one former clerk. “Everyone knew about it.”

In Louisiana, courts charge prisoners a fee for petitions – generally $50. Those costs are usually paid by parishes in which the defendants are convicted. By 1999, the 5th Circuit was charging $300. The money, paid by taxpayers, flowed into the 5th Circuit’s discretionary fund.

In a period when the state’s criminal justice system was close to financial collapse, with some public defenders representing as many as 400 people at a time, records show that the 5th Circuit collected at least $1.7 million for the pro se petitions its judges did not read. Former 5th Circuit employees told me the judges spent the money on office furnishings, travel allowances – even for retired judges – and other perks the state didn’t cover.

When asked about the fund’s expenditures, the 5th Circuit said it keeps financial records for only three years and could not provide an accounting.

The pro se petitions made up only a small part of Peterson’s responsibilities. His primary task was to oversee the court’s central staff, a group of lawyers who reviewed criminal petitions filed by attorneys and wrote recommendations for the judges. He also spearheaded the court’s lobbying of the state legislature and oversaw the construction of the new court building. “He loved that job more than anything in the world,” a former colleague told me.

Although Peterson often put in long days, he advised his staff to spend more time with their families. Those who knew him well said his devotion to his work seemed to rise and fall in proportion to what was occurring in his personal life, which was in a perpetual state of flux. Former colleagues said he was unhappy in his marriage and had several affairs with staff members.

At times his home mail was delivered to the office, and some of his co-workers suspected he might sleep there on occasion. Putting his children through parochial school was a financial strain. One of his daughters had died in her teens, and a brother had killed himself. A devout Catholic, Peterson had a hard time reconciling his faith with his troubled marriage and bouts of depression.

Peterson was born into a family of river pilots responsible for guiding ships through the lower Mississippi. It’s one of the most lucrative jobs in the state, with pay frequently exceeding $700,000 a year. Peterson’s grandfather, father and brother all held the job, and two of his sons now do.

Peterson took a different path. After he graduated from the U.S. Naval Academy, he attended law school at Tulane University and took a job at a firm in New Orleans. He joined the 5th Circuit at age 37; his time with the court was interrupted only by his military service – as a reserve Marine colonel, he served in both the Afghanistan and Iraq wars.

After years of overseeing the scheme, Peterson sought out Karla Baker, who had worked at the court years earlier and with whom he had been romantically involved. Baker was much younger than Peterson, and their relationship had continued after she left the 5th Circuit and took a job as a defense attorney at a prominent New Orleans firm. Peterson told her he wanted someone else to know what the judges had asked him to do, and he gave her a copy of his list of denials and the minutes from the 1994 meeting. He asked her not to do anything unless she heard from him.

On Saturday, May 19, 2007, two days before his suicide, Peterson received a call from Dufresne, summoning him to the courthouse. When he arrived, Dufresne and two judges were waiting in the conference room, and it quickly became clear they were there to fire him. They had evidence that Peterson had tried to improperly sway a case – that he had directed his staff to write a memo advising the judges to rule in favor of a defendant. Peterson rarely, if ever, recommended relief, even in cases filed by attorneys. But this happened to be a case Baker was defending, and Peterson had intervened.

Some law clerks had reported what they viewed as Peterson’s misconduct to the judges. Dufresne wanted to let it go, but a new judge on the court insisted they launch an investigation, which also revealed that Peterson was having a relationship with one of his subordinates. It had become too much to ignore. After more than a decade of denying the appeals of defendants, he was being fired for trying to aid one.

Peterson was blindsided. He had assumed he had a level of job security commensurate with the amount of dirty work he had done for the court. “Jerry thought he was one of them,” a former colleague told me. “He thought he was unfireable because he knew all the court’s secrets.” Now, some of the same judges who had asked him to for what struck him as comparatively small-scale misconduct.

After the meeting, he sat down and began to write a letter to the judges. “Not one criminal writ application filed by an inmate pro se has been reviewed by a judge on the court,” he wrote. “Who’s integrity is really in question when you have conveniently ignored your duty to review pro se criminal writ applications so you can reduce your workload, present a false picture of the court’s work, and charge large sums for work you haven’t done?”

On the morning of his suicide, Baker said, she received an email from Peterson.” He said by the time he was finished it will be Gretnagate.” But he underestimated the determination of the state’s legal establishment to protect its own.

The Times-Picayune ran a short piece on the suicide a few days later. It described Peterson as a well-liked, reliable employee. A staff member told the paper that Peterson’s problems were personal ones: “As far as anyone knows it has nothing to do with anything here at the court.” The article made no mention of the letter Peterson had sent to the paper.

The Judiciary Commission initiated an investigation into the 5th Circuit. A person familiar with the inquiry told me it focused on Dufresne, but it never became public and never had any consequences. Its findings were sealed and sent to a storage facility that was already filled with the records of other misconduct investigations that are not subject to the state’s public records law.

None of the judges involved in the episode was disciplined. A few months after Peterson’s suicide, the 5th Circuit quietly adopted a new policy for handling pro se petitions: A panel of three randomly selected judges would now review them, as Louisiana law required. No one, however, alerted the men and women whose petitions the court had improperly rejected and who were in prisons across the state.

ProPublica is a nonprofit newsroom that investigates abuses of power.

This article originally published in the November 13, 2023 print edition of The Louisiana Weekly newspaper.