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Wait list grows as public defenders refuse cases in New Orleans

May 1, 2016 at 5:13 PM EDT
The right to counsel is a constitutional guarantee, and a necessity, as at least 80 percent of state criminal defendants cannot afford representation and must instead rely on court-appointed counsel. Yet government spending on public defenders has fallen, leading 43 states to require indigent clients pay part of their legal fees. In Louisiana, budget cuts have created a backlog in the court system as public defenders have started to refuse cases. NewsHour special correspondent John Larson reports from New Orleans.
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By Mori Rothman

There are not enough public defenders in New Orleans to represent the 85 percent of cases where a client can’t afford legal counsel — so the public defenders made a wait list.

The wait list has grown to 142 cases since the public defenders began refusing serious felony cases in January.

“I came here to represent poor folks who are charged with crimes, to give them adequate, stellar, quality representation,” public defender William Snowden said. “Nobody in my office is able to do that when people get put on a wait list because we simply don’t have the funds.”

Chief Public Defender Derwyn Bunton says the Orleans Public Defenders budget has been cut from 9 million dollars to 6 million in the past six years, forcing him to enact hiring freezes.

Meanwhile, nearly half of Bunton’s investigators and attorneys have left, and the team has no money to hire replacements. Buton blames the attrition on the low pay and long hours required of the job.

Now, a lawsuit filed by the ACLU on behalf of clients refused by the Orleans Public Defenders several months ago and a habeas corpus petition claiming that the constitutional rights of seven men refused by the Orleans public defenders have been violated, might force the state to take action.

The suit is in federal court, and a judge in New Orleans ordered the release of the seven defendants in the habeas petition pending a state appeal.

“The defendants’ constitutional rights are not contingent on budget demands, waiting lists and the failure of the Legislature to adequately fund indigent defense,” the court wrote.

Read the full transcript below:

JOHN LARSON: A public defender in New Orleans, Will Snowden is on his way to jail to meet a client, a man charged with armed robbery and facing a potentially very long prison term.

WILL SNOWDEN: We as a public defender office take our responsibility of representing the poor folks of New Orleans very seriously. And when that becomes in jeopardy because of our workload and our caseload, that’s not something we’re willing to sacrifice.

JOHN LARSON: In his third year on the job, Snowden works six days a week. He’s handling around 75 cases, but he used to juggle 120…until his boss told attorneys in his office to refuse new cases…due to a shortage of funds.

WILL SNOWDEN: It’s very contradictory to the reason why I came here in the first place. I came here to represent poor folks who are charged with crimes, to give them adequate, stellar, quality representation, and nobody in my office is able to do that when people get put on a waitlist because we simply don’t have the funds.

JOHN LARSON: 85 percent of the more than 20 thousand cases that move through the New Orleans criminal justice system every year require the help of a public defender. Yet, since January, the public defenders office has refused 125 defendants requesting its help, and put them on an indefinite waiting list.

Why? Because three streams of revenue the public defenders depends on have declined — traffic fines, court fees and its share of state revenues.

In the past four years, the city’s public defender’s budget has dropped by a third…from 9 million to just 6 million dollars per year.

Chief Public Defender Derwyn Bunton says he been forced to reduce staff. He once had 15 investigators, he now has only 8. He had 78 attorneys, now reduced to just 42.

DERWYN BUNTON: The bottom line rule is we’re refusing cases we don’t have adequate resources to defend.

JOHN LARSON: Toughest cases, complex cases?

DERWYN BUNTON: Right now it’s the tough, complex cases, because our restriction of services includes in it a hiring freeze, I can’t replace people who leave.

JOHN LARSON: You mean lawyers who have left your office?

DERWYN BUNTON: That’s correct, and so a lot of the lawyers who’ve left my office have been very experienced lawyers, lawyers who would normally take the rapes, armed robberies, murders.

LOCAL NEWS ANCHOR: “Hundreds of people caught in a shootout tonight in the ninth ward, the chaotic scene left more than a dozen people wounded at the Bunnyfriend playground…”

DERWYN BUNTON: The turning point for me, as chief, was when we had a case, we had a playground shooting, it was Bunnyfriend’s playground here in New Orleans.

JOHN LARSON: One of the accused shooters claimed to have an alibi. And fortunately could afford to hire his own attorney.

DERWYN BUNTON: The family was able to get a private attorney, that private attorney was able to go to Houston, find the video footage of them actually shopping in Houston at the time of the crime and I looked at that case, and I said I’m not sure we would have made it to Houston in time. It was terrifying to me, and I just, I didn’t want our office complicit in that. I didn’t want to pretend that everything was okay in telling our clients, that we had adequate resources. So we began to refuse cases.

JOHN LARSON: The United States Constitution guarantees all Americans “the right to a speedy and public trial” and “the assistance of counsel”. And the Supreme Court ruled in 19-63 “any person… who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided.”

All of which means anyone who can’t afford an attorney has a right to a public defender. But someone has to pay for that.

WALT LEGER: The problem with our public defender system in the state is that it’s fundamentally based on something that is doomed to fail.

JOHN LARSON: Walt Leger, a state representative from New Orleans, says because traffic fines and court fees often didn’t cover the full cost of public defenders, the state established a board a decade ago to subsidize them. And that budget has remained flat.

WALT LEGER: And so a 10 year period with essentially no growth, and obviously additional costs necessary to provide these services, amounts to a fairly significant cut over time.

JOHN LARSON: Leger believes it is also a mistake for public defenders to rely on fees from their mostly poor clients; a 40 dollar application fee plus another 45 dollars if they are convicted.

WALT LEGER: The problem there being if you are in fact convicted, then the likelihood of you paying any of these fees is slim to none.

JOHN LARSON: New Orleans has approved regular annual funding increases for the city’s police and prosecutors.

JOHN LARSON: So, why is it that the indigent defense, as they call public defenders, always seems to be on the short end of the stick?

WALT LEGER: ​Well you know, I think the politics of it is very obvious. It’s easy for legislators, it’s easy for city council people, it’s easy for mayors and it’s easy for governors to support the funding of things like law enforcement, police, prosecutors offices, DAs, attorney generals. It becomes less popular with the public to fund things like public defenders, it’s kind of the same old concept of — and you hear people say this sometimes — “Well if the person’s been arrested, they must be guilty of something, right?”

JOHN LARSON: The American Civil Liberties Union has sued the New Orleans Public Defender’s office in federal court, saying its refusal to take cases has doomed the accused to “languish indefinitely in jail without counsel” and the growing wait list “violates their constitutional rights.” Henry Campbell is among the accused caught in limbo. In March 2013, the 18-year-old high school student was charged with rape. He’s remained in jail without trial…as his case was handed off from one public defender to another.

GREG CARTER: It’s just astounding that someone can sit there, that they can really just fall through the cracks.

JOHN LARSON: Greg Carter is a private lawyer who accepted the court’s request to represent Campbell…for free.

GREG CARTER: This is amazing, but the public defender’s office has — I don’t want to say lost, but they can’t find his file currently. And so I went over there, I requested it from them. First they couldn’t find his name in the computer systems they have over there. Then they just don’t know where to go to pick up his file.

JOHN LARSON: Carter says justice delayed, due to the public defenders budget crisis, is not only justice denied, but adds to the challenge of mounting an effective defense.

JOHN LARSON: You really haven’t had the time to sit down and talk to him about the case.

GREG CARTER: Right.

JOHN LARSON: You don’t even have the case.

GREG CARTER: Exactly.

JOHN LARSON: And there he sits.

GREG CARTER:​ There he sits. Day by day, sitting in, I keep calling it a cage but I mean that’s really what it is. He’s locked in a cage with no recourse, no way out, no way of preparing for trial. Every day that goes by, there’s a potential piece of evidence that’s being lost or being forgotten that could be that one key that frees him. That evidence never comes back. If someone forgets something that could be the one key to freeing him. That doesn’t come back.

JOHN LARSON: Three full years after Henry Campbell was arraigned in this courtroom a court-appointed attorney filed a motion involving Henry and six other defendants. It said that Louisiana’s justice system was so broken, allowing prisoners languish in jail for years, allowing others to go months without any kind of legal representation, that it violated the U-S Constitution. Last month, a judge agreed — ordering Campbell and six other defendants — all charged with serious crimes, including murder and assault with a deadly weapon — to be released. The state is now appealing the release order, so Campbell and the other men remain behind bars. The head of the state’s district attorneys association is Baton Rouge DA Hillar Moore.

JOHN LARSON: From a prosecutor’s point of view, this is a worst case scenario.

HILLAR MOORE: It’s very scary.

JOHN LARSON​: These are people that you and your other DAs have specifically put in prison. Arrested, done the work.

HILLAR MOORE:​ We believe they are very dangerous individuals. I think that if you asked the lawyers that represent them, they will tell you that they believe that they’re dangerous individuals that are now being required to be bonded out of jail, because they don’t have a lawyer. And look, it’s basic to our system that these people are, regardless of what I think, regardless of what the allegations are, they’re required to have adequate, a good defense. And so I think the judge is in a position where he had no other choice but to do what he did.

JOHN LARSON: Besides the politics, a public defender bailout from the state is unlikely, due to a massive budget crunch in Louisiana. A 2008 tax cut followed by a steep drop in revenues from the state’s oil and gas industry has left legislators like Walt Leger scrambling to cut spending on everything — from schools to hospitals.

JOHN LARSON: How often do you allow yourself to just sit back and think, ‘What a mess.’

WALT LEGER: The thought crosses my mind every day. At this point in the state of Louisiana, in my mind, providing high quality access to healthcare for all of our citizens is a priority, beyond that, there are things like funding our colleges and universities at an appropriate level to make sure that we have the opportunity to expand and grow our economy here.

JOHN LARSON: But I notice even in that list, the public defender’s office doesn’t really come up to the top.

WALT LEGER: It doesn’t with me, and for me, I’m someone who really understands the importance of it because I’ve been involved in dealing with it. But certainly I think you can ask every legislator in the body, I don’t think it would make the top ten list.

JOHN LARSON: Public defender Will Snowden believes his smaller caseload now allows him to do a better a job…but at a steep cost to society.

WILL SNOWDEN: It’s at the price of people sitting in jail for three months, two months, four months, whatever it may be, without a lawyer. And I hate for that to be the cost of doing better work for the clients that I have, but then there are clients who nobody is doing any work for. And that’s where the injustice lies, that these people, case, their defense is literally just passing away with the passing of time.

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