Indefensible: The Story Of New Orleans' Public Defenders

Before Hurricane Katrina, New Orleans didn’t even have a full-time public defender program. The one they built remains overwhelmed and underfunded.

The men in the orange jumpsuits marched into the courtroom. There were 11 of them on this June morning in New Orleans, and the chains around their ankles rattled with each shuffled step. They slid into the pews at the far side of the room.

Arrested the day before, none of them had been formally charged with a crime yet. This was their first hearing. They were to learn how much money they would need to walk free before nightfall. The magistrate court judge, at the front of the room behind a tall, dark-wood desk, called each name and asked each man two questions. Did he have a lawyer? Did he have a job?

Only one of the defendants had a lawyer. More than half did not have a job. The ones who did have a job made the minimum wage of $7.25 an hour, maybe a dollar or two more. The judge appointed a public defender to 10 of the 11 defendants. All 11 were black.

After the defendants answered the questions, the judge called for a short break. The public defender assigned to the magistrate court met with her new clients, one at a time for around five minutes each, in a small soundproof room beside the pews.

This process repeats twice a day, five days a week, continually welcoming in the newest batch of entries into the city’s criminal justice system. More than 80% of defendants in New Orleans can’t afford a lawyer, and so a public defender represents them, their only ally in a long journey toward freedom or imprisonment. Yet while the office handles most cases that pass through the courthouses, it remains “the stepchild of the criminal justice system” in New Orleans, said Anthony Radosti, vice president of the city’s Metropolitan Crime Commission. “And it’s always been considered the stepchild.”

Before Hurricane Katrina, New Orleans didn’t even have a full-time public defender’s office. As the city picked up the pieces the storm left behind, a group of dedicated reformers set about ensuring that the indigent would have full-time legal representation.

“The most substantial impact and consequence of Katrina,” criminal court judge Arthur Hunter told BuzzFeed News, was the creation, for the first time, of a full-time public defender’s office in New Orleans.

But as the federal recovery cash dried up and the state’s economy declined, the public defender’s office slid backward, leaving behind a system that imprisons the city’s poor in vast numbers without spending the money necessary to provide them an adequate defense.

New Orleans has the highest incarceration rate in the state with the highest incarceration rate in America, the country with the highest incarceration rate. Prison stays are longer here because Louisiana's sentencing guidelines are among the harshest in the country. And injustice is more common here than anywhere else: No state has a higher rate of documented wrongful convictions than Louisiana.

On this June morning, 10 of the men in orange jumpsuits shared a defense attorney. During each five-minute meeting in the small soundproof room, the public defender listened to the defendant’s version of events, wrote some notes, told the defendant what to expect over the coming hours and days, then rushed back out of the room to grab the next file from her briefcase before stepping back in to meet with the next name on the list.

When the meetings were done, the hearings began. The prosecutor recited the state’s case, aggregated from police reports and officer statements. The public defender presented a few positive personal details about the defendant. The judge set bail. Each hearing took less than 10 minutes, each defendant’s story blending into the next one’s.

Joseph Edwards, 24, was arrested after an officer found 10 pills of tramadol, a prescription painkiller, in his car. The officer had pulled him over for pausing too long at a stop sign. The public defender noted that Edwards had been taking GED classes, three a week, and lived with his mother and father. The judge set the bail at $5,000. Jonathan Johnson, a 26-year-old musician, was arrested when a cop found weed during a traffic stop. The officer also found a gun in the car. Johnson owned the gun legally, but in Louisiana it’s against the law to possess a gun while also possessing drugs. Johnson had no prior offenses. The judge set the bond at $10,000. Daniel Miller, 42, was arrested when an officer pulled over a car he was riding in because he and the driver weren’t wearing seatbelts. The officer found a syringe containing a brown liquid that tested positive for cocaine and heroin. Miller had a record: armed robbery in 1992, bank robbery in 1998, marijuana and cocaine possession in 2009. He faced a minimum of 20 years in prison for this drug possession because of his priors, the judge noted. Bail: $21,000.

The possibility of getting caught in this spiral of increasingly longer prison time hung over the defendants who passed through the criminal courthouse. During one hearing, for a woman facing a drug charge, a judge suggested to her lawyer that she consider pleading guilty. She was a first-time offender. She could enroll in a drug treatment program and have the crime expunged from her record. The lawyer said this was a bad idea. If she gets another conviction, the crime pops back up on her record and a prosecutor could use this first offense to argue for a longer sentence.

“Which gives me so much comfort to know that I’m gonna [let someone out on bail] who’s worried about another conviction,” the judge said.

The lawyer shot back, “I think everybody in this city should be worried about another conviction,” and several people in the courtroom laughed.

From 1974 to 2004, New Orleans’ jail population jumped from 800 to 8,500, even while its overall population dropped from 570,000 to 460,000. By 2005, 13 of every 1,000 residents in New Orleans were in jail, more than double the rate of the city in second place, Baltimore, and more than four times the national average even as the rest of the country was embracing mass incarceration as a solution to crime. Louisiana had taken the trend even further.

Marijuana possession becomes a felony the second time a person gets charged. Three drug convictions can make a person eligible for life without parole. Three nonviolent convictions with sentences of 12 years or more can lead to automatic life without parole. These stacked sentences are particularly dangerous in New Orleans, where the criminal justice system is largely funded by the defendants who pass through it. Fines and fees make up 80% of the traffic court’s revenue, 40% of the municipal court’s revenue, and 30% of the criminal court’s revenue, all among the highest in the country, according to the National Center for State Courts, which deemed the practice “fraught with constitutional and ethical ramifications.” The end result is that low-level, even nonviolent, crimes can easily lead to a lifetime of debt and long-term incarceration. All of which makes consistent and effective representation for the poor people most likely to get caught up in the system more significant.

“We criminalize a lot of conduct. Our sentences are severe,” said Derwyn Bunton, Orleans Parish’s chief public defender since 2009. “You couple that with a lot of poverty and lack of resources, you get a pretty bad mix.”

By the early 2000s, 23% of residents in New Orleans lived below the poverty line, the seventh-highest rate among big cities. Eighty-four percent of those living in poverty were black, and the great majority of them lived in neighborhoods where the poverty rate approached 50%. These were the neighborhoods that took the brunt of the lock-’em-up culture that emerged in the second half of the 20th century.

And yet by the early 2000s New Orleans, like every other parish in the state, didn’t have a public defender’s office. Instead, a network of private attorneys represented poor defendants part-time, for $29,000 a year. A board of local lawyers oversaw the Orleans Indigent Defender Program, as it was then called. Traffic violations and other court fines and court fees funded more than 75% of the program.

Louisiana had established this system in the 1970s in response to the U.S. Supreme Court’s 1963 ruling that the Constitution requires states to provide legal representation to defendants who can’t afford a lawyer. According to Bill Rittenberg, a New Orleans defense lawyer since 1970, it was a part-time system because state legislators didn’t want to fund more than that and because they valued a tough criminal justice system.

Louisiana courts, as far back as 1993, had deemed the program unconstitutionally underfunded. That year, public defender Rick Tessier told the criminal court that he couldn’t afford to pay for experts or investigators for his cases. Tessier had so many cases, one judge noted, that his clients were “routinely incarcerated 30 to 70 days before he meets with them.” But the courts concluded that because of the separation of powers between government branches, they couldn’t order the legislature to increase funding.

At the start of 2005, the Orleans Indigent Defender Program’s office, a small room in the criminal courthouse, had four computers. Two of them were not connected to the internet; the other two were on dial-up. There was no secretary to answer phones. There was no office phone number. The attorneys had no database keeping track of cases, and they often didn’t have their clients’ files. Some attorneys spent most of their time on their private casework, for which they were paid more. “You got paid the same whether you spent two minutes or two hours or two days on a public defense case,” said Bunton.

The Southern Center for Human Rights, after a review of the office, found that public defenders in New Orleans “did not visit crime scenes, interview witnesses, check out alibis, did not procure expert assistance, did not review evidence, did not know the facts of the case even on the eve of trial, did not do any legal research, and did not otherwise prepare for trial." One attorney, the review stated, filled out puzzles in court. Attorneys missed court dates and failed to meet with new clients for months. In one case, a defendant spent more than a year in jail on a burglary charge without ever meeting with his public defender.

“Nowhere are the New Orleans systemic justice deficiencies more glaring,” the National Legal Aid & Defender Association concluded, “than in the delivery of defense services to people of insufficient means.”

The storm hit on Aug. 29, 2005. The levees in New Orleans broke. Across the region, more than 1,800 people died, the majority of them in New Orleans. Flooding swept away large swaths of the city.

The criminal justice system ground to a stop, and there wouldn’t be a single criminal trial in New Orleans for nearly 10 months. Courts held hearings at a bus terminal or in the room used for police lineups. Judges and lawyers wore T-shirts and shorts. Most of their clothes were still in their New Orleans homes, and many of them commuted dozens, sometimes hundreds, of miles for court dates. Prosecutors worked out of an old dance club. With the jails flooded, the sheriff’s office shipped inmates to facilities across Louisiana, and since the public defender program had no database of cases, their clients were effectively invisible.

“Many of them were literally lost,” said Rittenberg, who is a former president of the Louisiana Association of Criminal Defense Lawyers. “They just sat in jails in rural areas all over the state.”

With no revenue coming in from traffic citations and court fines, the public defense system collapsed; 34 of the 41 attorneys were laid off. Over the following months, a group of volunteer lawyers drove around to each facility in the state to track down these defendants, and manually built a public defender case list from scratch. With the courts shut down, the backlog of cases built up. And in the months after the storm, at least 6,000 defendants had no legal representation.

In February 2006, criminal court judge Arthur Hunter announced that he was suspending all public defender cases. “For all practical purposes, the public defender program no longer exists," Hunter said in court. Months later, as trials began once again in New Orleans, hundreds of defendants still had not met with a lawyer. Hunter, in a court order, said that he would begin releasing these defendants if the public defense system wasn’t fixed soon. “If we are still part of the United States and if the Constitution still means something then why is the criminal justice system 11 months after Hurricane Katrina still in shambles?” Hunter wrote.

It became known as “Katrina Time” — inmates serving months behind bars for no reason other than for being in jail on the day the storm hit. Greg Davis, arrested for failing to pay $448 in overdue court fines, spent seven months. Thomas Lee White, arrested for public drunkenness two days before the storm hit, was imprisoned for a year without getting a single court hearing.

By mid-2006, most judges, lawyers, and city officials agreed that the criminal justice system could not move forward without an overhaul. After the devastation and the horror, after the waters receded and the people prepared to push their lives forward, there was hope. Locals talked of how the rot and corruption and power structure, hardened over decades, had washed away with the trees and the cars.

“The turmoil was instrumental to reforming the public defender’s office,” said Tessier. “When people started to come to after the devastation, they decided that this was an opportunity. Something bad had happened, and maybe something good could happen now.”

There was sweeping change in every institution in the city, but perhaps none more sweeping and dramatic than the change in the city’s criminal justice system.

“Every one of the components of our criminal justice system are all functioning significantly better than they did before Katrina,” said Michael Cowan, a Loyola University professor and executive director of Common Good, a network of community organizations formed in the aftermath of the storm. “It would not have been possible to do any of that the day before Katrina.”

The city established an inspector general’s office and an independent police monitor. The Department of Justice reached consent decrees with the Orleans Parish Sheriff’s Office, which oversees the jails, and the New Orleans Police Department — the first time a city has ever had federal oversight over both of those agencies at the same time.

The courts implemented a pretrial service program to try to reduce the number of people serving time behind bars only because they couldn’t afford bail. The city council passed an ordinance asking the police department to issue summonses to, instead of arresting, people caught with small amounts of weed. The population of the county jail declined. Nearly every judge, advocate, and lawyer who spoke to BuzzFeed News agreed that the system had improved over the decade.

Change to the public defender program came because there was little resistance and because the whole system had to be rebuilt from scratch. Many of the lawyers had left the city and not returned, and only two of the program’s seven board members returned in the months following the storm. Chief Judge Calvin Johnson led the push to fill the open slots with people interested in reshaping the program, including Bunton, who then headed a nonprofit law office that represented juvenile defendants.

With millions of dollars in state and federal emergency funding flowing into the city to jump-start the recovery, the new board members increased salaries for attorneys and required that they work full-time. They opened a new, much bigger office across the street from the courthouse and christened the changes with a new official name: the Orleans Public Defenders Office. The Minnesota Bar Association donated furniture. The Louisiana Bar Association donated phones and laptops and set up an officewide email system. The District of Columbia Public Defender Service donated a computerized case management system. The board hired Loyola law professor Steve Singer to guide the rebuild, and Singer traveled across the country recruiting new staff from top law schools.

“Post-Katrina, New Orleans was sort of the cool place to go for young people,” said Singer. “Everybody wanted a job here. Everybody wanted to talk to me. Recruiting was easy. I could get the best and the brightest.”

The board members installed new protocols ensuring that defendants would have a single lawyer from beginning to end: Lawyers who had previously been assigned to specific courtrooms would now be assigned to specific clients.

Some judges didn’t like this change. It slowed down the court because public defenders had to jump from courtroom to courtroom, which led to dead time while a judge waited for the public defender to get to their section. Some judges began holding public defenders in contempt. In January 2007, Singer spent several hours in jail after a judge convicted him of contempt of court because a public defender was absent from a hearing. Months later, another judge convicted Singer of contempt of court over an argument about whether a suspect was poor enough to get a public defender. An appeals court would later reverse the conviction. At the time, Singer told the Times-Picayune that the judge had punished him because he “does not like the reforms” and was “angry that he doesn't run the public defender's office anymore. The system was operated as a judge-friendly system. It catered to the needs of judges rather than the needs of clients.” In May 2007, a majority of criminal court judges voted to remove four members of the public defense board and appoint new ones.

“New Orleans had a very insular legal community,” said Katherine Mattes, a Tulane law professor. “After Katrina, a lot of young idealistic lawyers came down to help fix things and the judges see them as carpetbaggers coming down here telling us how to do things. And there was a lot of resentment at that.”

The Louisiana legislature solved the conflict in August 2007 by establishing a state public defender board to replace the local boards and distribute a new, increased budget. The Orleans Public Defenders Office received around $2.5 million from the state, almost as much as it got from fines and fees. Two years later, the New Orleans City Council allotted $500,000 for the public defender’s office, and by 2011 the city had upped that to $1.2 million. The office’s budget rose to more than $9 million in 2011, and its staff had grown to 115, including 70 lawyers.

“Funding at the time was not a struggle because of the disaster,” Singer said. “People wanted to encourage reform, and we were new and already reforming so we were able to get our hands on more funding.”

The office earned a reputation for professionalism and competence. In 2009, the Southern Center for Human Rights awarded the office its Frederick Douglass Human Rights Award for being “an inspiration to the many public defender offices that are struggling to do right by their clients in the face of tremendous pressures to do otherwise.” A report by the Louisiana Public Defender Board praised the office for how it trained new hires, its “client-centered” focus, and its “highly committed” staff attorneys, who “are trying and winning many of their cases.”

But the office, the report noted, was still developing. “Far too few attorneys represent far too many people,” it stated. And the budget process, the authors warned, “is unpredictable and unreliable.”

The influx of money and resources and new jobs in the aftermath of Katrina had served as an economic stimulus, hitting the city just as the rest of the country fell into recession. But soon the momentum slowed. The federal money dried up. The prices of oil and gas, the region’s main economic drivers, sunk. The progress in rebuilding the public defender's office “hit a wall,” said Mary Howell, a local civil rights attorney.

In 2012, the city and state sliced their funding, leaving the office with a $2 million shortfall. Chief defender Bunton laid off 27 staffers. A 2009 Department of Justice report had estimated that the Orleans Public Defenders Office needed 70 lawyers, 124 total staff members, and an $8.2 million budget to “protects its clients’ constitutional rights.” The office now has 51 lawyers, 83 total staff members, and a $6 million budget, which is projected to shrink to around $5 million for 2016. By comparison, the District Attorney’s Office has 90 lawyers, 190 total staff, and a $15 million budget.

“You’ve got a $135 million police force, an $80 million jail, a $6 million court system, and a $15 million DA’s office,” Bunton said. “All those are designed to put people in jail. That is what is designed to catch you and incapacitate you. There is $6 million to make sure your rights aren’t violated, justice is done, and you get the right person. That is an incredible disparity.”

And it has produced mammoth caseloads. Even in 2011, at the height of its staffing and when the city had fewer people, the office’s caseloads were far above national standards. Each felony attorney handled around 300 cases that year, double the National Advisory Commission standard. Each misdemeanor attorney handled around 2,500 cases, six times the standard and higher than anywhere else in the country.

More cases mean less time for each client, which Joe A., 22, learned after he was arrested in 2014. A cop had approached him and a group of his friends outside of one of their houses in the 7th Ward, he said. The officer searched them and found two grams of weed on Joe. He couldn’t afford bail and spent the next five months in jail, waiting for his case to move forward, he said. He got kicked out of his junior college for missing class. He decided to plead guilty. Over those five months he saw his public defender three times. “It seemed like there was no effort,” Joe said.

In late June, weeks before the 10th anniversary of Katrina, Bunton announced that his office faced a $1 million shortfall for the upcoming fiscal year. The state planned to reduce funding by $700,000, and the office projected that local revenue would decrease by $300,000. The necessary budget cuts, he said, would “raise caseloads,” “slow case processing time,” and “affect the quality of service.” He warned of a “potential constitutional crisis for our criminal justice system” if poor defendants didn’t receive more resources for their cases, and it almost sounded as if he had rung the closing bell on a decade of optimism and progress.

“Somewhere around seven, eight years there’s a sort of trough you hit as you realize that not all these problems are gonna be solved and the problems are deeper and more intractable than you anticipated,” said Howell. “We’re looking around and saying, 'Why aren’t things better?'”

The story of reform and redemption, touted by city leaders, is harder to find on the streets of the 7th Ward, or Central City, or the Lower 9th Ward, pockets of low-income communities in a city with one of the highest levels of poverty in America. Three young men in their early twenties, walking to a corner store in the 7th Ward through the rain on a hot evening in June, said they hadn’t seen anything in the way of progress.

“Look around and it’s obvious,” a man in a white T-shirt said. “Still the same kinda folks getting locked up for the same bullshit.”

“And they don’t treat you right here,” a young man in a black tank top said. “They make you feel like an animal here.”

The way these young men saw it, and the way many around them saw it, a decade of new policies could do little to reverse generations of oppression or uproot the city’s deeply embedded lock-’em-up culture. Not even a well-funded public defender’s office could do that. Families were still losing breadwinners and spending long days waiting for bad news in courtrooms. A generation of children was still growing up with parents locked up. To the eyes of these young men, and to the eyes of many around them, the cycle continued and the progress, the numbers touted in press releases and policy papers, was nearly invisible.

In these post-Katrina years the inequalities of the system appeared stark as ever. Even though black people make up a smaller portion of the city’s population than they did before Katrina, from 67% to 59%, black defendants make up around the same portion of the jails and courtrooms, at above 80%. In 2012, a Times-Picayune investigation calculated that 1 out of every 7 black men in New Orleans was locked up, on parole, or on probation, and that there were 10 times more black men than white men from New Orleans in state prison. Those numbers are directly tied to the statistic so many in the city have memorized: 52% of black men in New Orleans were unemployed or out of the labor force, according to a 2011 Loyola University study.

“The lack of economic opportunity and the messed-up criminal justice system here in New Orleans, and everywhere in this country really, they work hand in hand, and that’s where you see the cycle,” said Norris Henderson, director of the nonprofit Voice of the Ex-Offender. “When he comes out of jail, he can’t get a job, he can’t get housing, he can’t go to school. This will follow him for the rest of his life. But he’s gon’ do what he needs to do to support his family.”

Those families streamed into the criminal courthouse one hot July morning, as they did on other weekday mornings. They lined up at the front entrance, taking their belts off and their wallets out and dropping them into a plastic basket, placing the basket on the X-ray conveyor belt, crossing the metal detector, gathering their things, then hustling through the halls with the steady gaze of people who knew where they were going.

Most of those arriving were repeat visitors, spectators to the slow wheels of justice, and they found their familiar seats in courtroom pews or hallway benches. While most of the defendants in the orange jumpsuits were men, most of the supporters arriving at the courthouse were women — mothers, sisters, wives, girlfriends. Some of them carried babies or held the hands of small children. These women understood that the impact of the criminal justice system rippled far beyond the courtroom, into these hallways, past these hallways, and into neighborhoods and households and bank accounts.

Dee Pierce had spent $4,000 on a private attorney for her fiancé’s case. He had had two prior felony offenses, so he faced serious time for this drug possession charge, more than 20 years, the attorney told Piece. She owed $8,000 more. She had taken a second job to afford it. She figured a private attorney would spend more time on the case than a public defender would. But now here she stood outside a courtroom, with a group of relatives, wondering where the lawyer had disappeared to. They had seen him earlier that morning before the hearing. He said he would be right back. They assumed he was going to the bathroom. But half an hour later, when the judge called the case up and asked for the lawyer, he was nowhere to be found. They didn’t know it at the time, but at that moment the lawyer was in another courtroom for another client’s hearing.

Outside a different courtroom, three sisters sat on a bench, waiting for their brother’s hearing. They had each taken a day off from work. The hearing was supposed to start at 9:30 a.m., but it was 9:45 now and the courtroom doors were still locked. The brother, who faced assault charges, had claimed he was innocent and wanted to go to trial, the sisters said. The process had dragged on for a year. The sisters had taken the day off to attend a hearing in April. The prosecutor asked for a continuance, or more time to work on the case before the next hearing. The next hearing came in May. Another continuance. Then a hearing in June, and another continuance. “We just show up and we gotta leave,” the oldest sister, Lil, said. “We’re hoping this hearing actually moves things forward.”

The sisters felt helpless and frustrated. Many of the supporters on the benches and in the pews, and many of the defendants in the orange jumpsuits, felt helpless and frustrated. It was the same deep-seated frustration that had simmered for decades, building with the storm, and hardening in the decade since, as the recovery and progress spread unevenly across the city.

“If they don’t do something to change these circumstances, you gon’ have a Ferguson or Baltimore on your hands,” Henderson said. “The poverty exists. The hopelessness exists. The same things they found out about the criminal justice system in those places, the same thing is alive and well here. All it’s gon’ take is one bad incident and boom.”

It was a frustration passed through generations. Passed to kids with “cards stacked against ’em from the start,” said Sterling, a 7th Ward native who spent two years in prison for weed possession. “That’s a hell of a deck, too. But that’s how it is. And guess what? Inside that deck there’s a lot of jokers.”

One July evening in the 7th Ward, just after a thunderstorm had passed, dozens of kids made their way into Stallings Playground. Two boys, 12 and 11, played basketball on the blacktop. They didn’t remember Katrina. They barely even remembered coming back to the city after the storm. And yet the storm, and so much that came before it, had left permanent marks on their lives.

“My daddy just got outta prison,” the 12-year-old said.

“What he do?” the 11-year-old said.

“I dunno. But my mama, she was like, it was different back then or something.”

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