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NEW ORLEANS NEWS - WASHING AWAY WATERMARKS

APRIL 1, 2008  TOO MANY PROMISES NOT ENOUGH MORTAR

N.Y. Times notes that plans to rebuild the City are floundering despite a 200 member staff and promises a year ago of Parisian Boulevards . . . apparently its not just the Public Defender System and the Courts that have come up short . . . . we recall the claim that the OPD would be "the end of the death penalty" and "a draw for young lawyers across the country to come to the model Defender Program".   Maybe the cultural background, with the French and Spanish influences,  the Union Army Occupation, and the Big River running through the City gives us a feelings that our achievements will surely be grand, even when we don't have the practical skills to pull it off.

MARCH 12, 2008 - WM BOGGS - NY TO NO - NEW BREED AT TULANE & BROAD?

It's been a while: the Orleans Parish story is not so exciting these days, as the drama is more the routine Public Defender work and not the changing the world, kumbaya singing heady days . . . . William Boggs is fighting the good fight in the Bonds case, getting more time from Jerry Winsburg after Prosecutors showed up for trial with new witnesses, and arguing about the defense right to interview them.

Skeptics say it ultimately hasn't changed for clients, whose cases stack up the same as they would have under a contract program.  But if nothing else there is resistance to a system in which cozy DA/ Judge / Law Enforcement axes are being challenged with real Constitutional Principals,  including calling the DA on pandering to the media.  Boggs came from New York and is one of the workhorse PDs.  Unfortunately, he seems to be one of few as the OPD resists any practical adjustment in "vertical representation" and "full time" no matter how it impacts the clients!

DECEMBER 11, 2007  QUESTIONS ABOUT CASELOADS - OPD FELONIES SEEM TYPICAL

Back when we criticized the "Cabal",  we worried that posturing by the Public Defenders there in a push for a particular ideological solution would be counterproductive and end up hurting the clients.  That turned out to be true, and the hope was that a reality check would ensue.  A report by the Metro Crime Commission recently sought to highlight court efficiency, but the numbers reveal a District Criminal Court with a very reasonable caseload compared to the rest of the State.   The average in each section is 190.  The high is over 300, but may include misdemeanors.  Considering the ABA and LaPD Board guidelines, it would seem that two attorneys per section would meet standards for 190 felonies,  given the sample would include dead cases, overcharges, fugitives, and other variables.  Is the program once again trying to force feed a philosophy (vertical representation) to the prejudice of its clients?

No wonder the Judges are upset with OPD.  They are pilloried in the press for not moving cases, while some have only one lawyer in a section of Criminal Court!  Not the way to run the railroad, unless you want "constant crisis".

Given the additional problems with 10 applicants to the Bar who didn't pass their exam,  Orleans Parish has to come to grips with the reasonable and practical management of a defender office.  Quickly.

DECEMBER 4, 2007  STINGER OUT OF SINGER - COURT OF APPEAL REVERSES

The Fourth Circuit finds Steve Singer was not in contempt of any valid court order in referring a client to probono counsel. The court noted that " . . . we find no evidence in the record that Mr. Singer willfully disobeyed an order under La. C.Cr.P. art 23(2).  Likewise, we find no evidence that Mr. Singer interfered with the orderly administration of justice, or that Mr. Singer acted unprofessionally . . . we must reverse the conviction and sentence."  Full Ruling    A concurrence notes that this all started when Assistant DA's were contacted by the PD investigator and then went whining to the Judge about that!  Now that's "professional"!   Turns out to some extent this was about the opposition trying to trim resources from the client?

Not that Steve gets off so lightly,  OPD having 10 lawyers who failed the bar and local talent looking for work!  Once again the practical has to come into consideration.  Sometimes it has to trump the philosophical.  OPD is starting to build up some pretty important critics with this latest issue, and an EEOC complaint:  did we learn from Eddie Jordan?   Judges need to leave the PDs alone, let them do their work.  PDs need to do their work. 

But contempt of court is a very serious matter, and the Orleans Parish Bench has been throwing it around since Katrina far to often.  It can hurt a lawyer permanently.  That's not fair when it boils down to a management choice of the PD,  or a referral of a client declared not indigent to a lawyer willing to work for free.  The Fourth Circuit ruling is correct.

NOVEMBER 20, 2007   BAND OF BROTHERS FOR REVERSING CONTEMPT SENTENCE

Criminal Defense Lawyers seem to be unanimous on the error of Steve Singer being found in contempt for sending a former PD client to Probono Counsel.  Singer was sentenced to 24 hours and Ethics Training yesterday by Judge Frank Marullo in Orleans Parish Criminal Court. No-one doubts that the transition post-Katrina has been a near disaster.  But the contempt power has been waved around Tulane and Broad constantly since the disaster, and some say its a good time to test the theory that Public Defenders have to be managed by the Court.  Another issue is whether a client who can't hire a lawyer has to if the court so orders, and whether the court can bar probono counsel. 

Ultimately though, the core issue is that the Public Defenders are not employees or wards of the court, any more than the private bar.  Whatever else we have written about Steve,  much of it has been critical,  but we don't believe "contempt" includes getting somebody a volunteer lawyer.  Certainly we don't recall any disciplinary proceedings or cited cases in which it was contempt for a lawyer not to charge a fee!  

One result is sure to be that the Criminal Defense Bar will find more common ground in this case, knowing that the contempt power is not there to be a Sword of Damocles over the Public Defenders.  Lots of lawyers are feeling compelled to make sure there is a sturdy shield there,  and they are going into this case pro bono, without any thought that might be contempt of court, no matter how much money Professor Singer might have!   We expect LaPDA, LaCDL and possibly national bar associations to join in setting the record straight.   We hold some hope that Judge Marullo might yet change his mind on this one.

NOVEMBER 18, 2007   SINGER STAY ORDER

Judge Marullo has stayed a contempt sentence to allow time for Writs to the Fourth Circuit.  The issue is whether it was contempt for Steve Singer to refer a client to pro bono counsel after Marullo found the client "not indigent".  TRANSCRIPTS

NOVEMBER 16, 2007  SINGER IN CONTEMPT BECAUSE CLIENT WAS NOT FORCED TO HIRE COUNSEL

NOVEMBER 13, 2007  TAKING CARE OF EDDIE - SINGER OF BLUES - JOEL C Senate

No surprise that ex DA Eddie Jordan got a "consultant" gig as part of the deal for his resignation.  The man takes care of himself.  Nero of the floods.

Interesting visit with Steve Singer of OPD fame: its definitely the MONEY when it comes to attracting talent, including legal talent.  New Orleans was once a hot venue with its culture and bustling university, medical centers and shopping.  Not the most attractive place to live now, and the disarray in the courts is one more issue for prospective PDs.  So is the money OPD can pay.

Takes time to understand, but bottom line is you can take whatever system, structure, regulation or rule you want: ITS ABOUT THE MONEY!  You simply cannot get top talent without top dollar!

NOVEMBER 10, 2007  THE ORLEANS DA HAS 90 PROSECUTORS

Payroll for 90 lawyers in the DA's office is in jeopardy as the Civil Judgment held against Eddie Jordan's office has been made executory and the first round of cash seizures has begun. The acting DA held meetings November 8 in an effort to keep Crim Justice going in Orleans Parish.

OCTOBER 30, 2007   WE WERE FOOLED INTO THINKING IT WAS INDIGENT DEFENSE

The guy locks up Edwin Edwards on a nebulous "conspiracy",  then is elected DA and secures a limousine and "posse" like an NFL star,  dumps public servants to hire cronies,  has no policy other than traditional Orleans Parish practice,  and loses a $3.7 judgment in a Discrimination Suit!  Now his office is literally facing shutdown and at least, thank God,  he may be considering the public good.  RESIGNATION ANNOUNCED

But no-one should think all this the anomaly in a Parish Court that is somehow nothing like any other in Louisiana, or the USA! When we ran one of the prime local rules by a Law Professor from the Midwest,  he indicated that he never heard of any place in the country with such a practice:  in New Orleans Criminal Court,  you must appear in person to file every pleading!  And to "receive" filings.   Now, considering this makes the simple act of mailing  or electronic filing, which takes perhaps 0 to 60 seconds,  impossible and converts that time to 2 to 5 hours counting the drive, parking, going to the courtroom , waiting for your turn,  can anyone seriously deny that things are totally ridiculous?

What about client/ attorney contact?  Well,  don't imagine being able to have a quiet talk with a client in a private room of the Parish Jail or the courthouse.  Some of the Judges have room to set up a private visit, others don't, and the Criminal Sherriff is still operating in temporary setups.  There is no such thing as a confidential conversation.  Often there is no published information on where the defendants are at any one time.

No,  this is not "indigent defense crisis".  This is Criminal Court Crisis extraordinaire.   It wasn't just defense lawyers who were being fiscally raped by underpay and overwork,  or who had no support or equipment to do their job.  Its systemic.  Only thing is,  if General Foti is the answer,  we might want to carefully consider the question.  The ghost of Neal Walker's suggesting returns,  calling on the U.S. Attorney:  "FEDERALIZE THE ORLEANS PARISH CRIMINAL COURT!"   We don't know if that can happen,  but it seems the best idea anybody's had. 

OCTOBER 25, 2007  THIS IS THE HERO WHO LOCKED UP EDWIN?

D.A. Eddie Jordan says he called N. O. Police later when he learned his live-in's buddy was wanted for robbery and homicide, and had run to Jordan's house from an armed robbery scene.  This guy put away Edwin Edwards?

OCTOBER 23, 2007  PEOPLE IN GLASS HOUSES . . . .

Public Defenders should be concerned that a Federal Court has found the Orleans D.A.'s office is subject to seizure for over 3 million dollars in Civil Rights damages arising out of a discrimination case against Eddie Jordan.  We have generally viewed State Law as providing governmental subdivisions are not subject to asset seizures, but press reports say Plaintiffs may take assets from the DA to collect their Judgment.  Just when you think things cannot get any worse in the Crescent City . . . .

The precedent is not comforting for PD offices who could face similar issues.  While one could only hope that PD managers would be more effective that Mr. Jordan has been,  it is not good policy to subordinate public good to damage claims in this manner.  Shut down the D.A.'s office?  The District Judges already have their own clerks, so maybe they can appoint a prosecutor for each section, leaving only the Public Defender as independent.  No doubt its been considered.  The custom in Orleans Parish is that the Judges have to hold the rest of the system together.  Considering the history,  one could only imagine how much more of a circus we would have had they not.

OCTOBER 19, 2007   ALL OUR DREAMS ARE SUBORDINATE TO M-O-N-E-Y

These pages have, for years now, made note that the real core problem in the Criminal Justice arena is funding.  That goes for all the players.  Recent reminders in Georgia and New Hampshire only prove the point with solid empirical evidence: you can't build a Defender Office on your philosophy, on benchmarks of effectiveness or training or anything else without having a financial foundation.  Getting that is less about bold, radical concepts than about reaching consensus,  take careful, considered approaches to problems with other players in the Criminal Justice System,  and making practical choices. 

Its probably not so dramatic to admit that you can't do vertical representation for every client,  and that you may have some levels of your program address client need in the form of "duty courts".  But this is not about drama or being nominated for a Nobel Prize.  Its about everyday people who need the advice and counsel of a lawyer so that their days in the Criminal Justice "System" of this State don't ruin their lives and their family.  Even in the best systems,  over 90% of cases are plea bargains.  What we want to insure is that in whatever process, be it trial or plea bargaining,  clients have that "guiding hand of counsel" in a real and meaningful way.  The bottom line is that in this country, that means getting the money needed to do the job,  not being pure to any philosophy or ideology.

SEPTEMBER 29, 2007   JORDAN'S OFFICE HISTORICALLY BAD

Three supervisors to approve a plea?  Another indication that Orleans Parish is steeped in "that's the way we've done it" b.s. instead of "lets think about this!  TP outs a dysfunctional, floundering DA's office that underpays and is top heavy with "supervisors".

SEPTEMBER 20, 2007   JUDGES RAGE - DA'S WALK

Cate Bartholomew will leave the D.A.'s office in Orleans Parish after another browbeating from the bench about trials and schedules.  Clearly Eddie Jordan's office doesn't have the stomach to cite the provisions of the Code of Criminal Procedure that give the DA control of the docket: he would rather run through assistant after assistant after the bullying.   The OPD had borne the brunt of this kind of thing earlier this year.  Now it seems the real problem may be that roles are not clearly defined and understood at Tulane and Broad, including many issues vexing both the prosecution and defense.

SEPTEMBER 9, 2007  -  ET TOU,  GAUCHE?

The worst thing about Journalism is when there is nothing catchy going on.  The mundane is no fun writing about.  When there is a Cabal, a Coup or a Donnybrook, then you can have some fun.  At Tulane & Broad last week the parking garage down under was open again,  spiffed up nicely, new cars shining under the lights (collateral gain?), the shack behind the courthouse has finally been torn down, and Rick Tessier was in a jury trial, and Lori White is running for District Judge.

You can still see the watermarks around in the neighborhoods, but the heady days of Katrina as a watermark are almost done.  The PDs are up on the 7th Floor down the street, with inspiring philosophic posts in the lobby and Saints logos on the receptionists window.  Many of the young externs are counting down to when they go back home.  So are the PDs, wondering whether any help will show up to take their place.   The DA's office is scrambling to reform a "task force" disbanded by mass resignations.

Over in the Courthouse, you clear security and stand at the elevator and suddenly hear a young singer belting out a Broadway tune.  No kidding.  "Some enchanted evening, you will meet a stranger . . . . etc."   One of those incongruent incidents that reminds you, some day this will only be a movie.  Right now its actually happening!

SEPTEMBER 3, 2007 - ORLEANS JUDGE PARKER WANTS TO MANAGE D.A.'S TRIALS

As noted earlier, its not just he PDs that some Judges fault.  Judge Parker has taken Eddie Jordan to task for not being ready for a murder trial to proceed.  There is definitely a lot to long for in Jordan's office, including a pretty plain inability to read and apply the law, which would end all this controversy about when a certain case goes to trial.  The law is that the D.A. makes that decision, not the Judge!  The Judge can make a decision that the case is too old to try or that time limits are exceeded, but the court has no authority to tell the D.A. what case is go be tried, or when.  Evidence of course, that caseloads are out of control: when counsel for the D.A. doesn't even know the limits of the court's authority, and can't research it, things are not as they should be!

AUGUST 30, 2007 - STUPID FLOOD - NEW ORLEANS WASTING TIME AND MONEY LOCKING DOWN MISDEMEANANTS

There's more to the Crim Justice crisis in Orleans Parish: an insane policy of locking you up on a pending misdemeanor when you can't post bail.  The Nation reports 41% of these folks could be out on recognizance.   This flood is a man made disaster of social policy and a failure on the public safety side.  In the prison state of Louisiana, New Orleans is the prison capital, and we're talking about uncharged and unconvicted folks languishing in Papillion type hell holes. Stupid.

AUGUST 23, 2007  HUNTER LICENSED TO NAME OUTSIDE LAWYERS

A split panel of the Fourth Circuit granted a State Writ, but the Order seems to prolong the agony for defendants and lawyers by ordering appointment of non-volunteer attorneys,  hearings on a case by case basis on the Right to Counsel and Bail.  Hunter previously found that resources for the Public Defender in his court were insufficient, and ineffective. Much like the earlier Peart case,  the finding has apparently been narrowed by the 4th Circuit so that the implications for State Government are relatively minor.  The result is even more litigation work in a system the trial court already has determined is broken and broke!

AUGUST 16, 2007  CABAL CLOSED - MOOT SUIT

They did at least turn the huge, lumbering ship that was the OPD back toward the 21st Century!   Act 307 mooted the Federal case, the bickering and by then the new OPD Chief, Christine Lehman, was working on connecting with Public Defenders nationwide and state wide.  The current agenda: clients, clients, clients.

AUGUST 15, 2007   PRO BONO PROJECT SEEKS OPD BACKUPS

The Orleans Public Defenders (OPD) is looking for attorneys willing to be placed on the “volunteer conflict list” for Orleans Parish Criminal District Court. Those on the list may be called by the court to represent  inmates when OPD lawyers cannot do so due to legal conflicts or excessive caseloads. New lawyers’ names will be placed on the bottom of the list, and  the court will call names on the list sequentially. One case will be assigned at a time. The lawyers on this list can elect to represent these
defendants pro bono, or for a fee of $60 per hour and $40 per hour for investigators. The Orleans Public Defenders office has been chronically  under-funded and is only now beginning to recover from the effects of Katrina. Thus, offers for pro bono representation are greatly appreciated. If you are interested, please fill out the form at
http://www.orleanspublicdefenders.org/volform.htm.

AUGUST 5, 2007  WHY THE PRINT IS HAND WRITING ON THE WALL

Wondering about the life expectancy of magazines and periodicals?  Take a look at the ABA Journal just recently published. The article on New Orleans is not only untimely, its essentially irrelevant.  Act 307 is referenced as a hope.  The driving force is penned as "the New Orleans Bar Association".  The former Board Chair is featured.  No wonder the web rules.  Reading this article is like pulling a 1970 Time Magazine to see what was in the news when you graduated.  We're witnessing the end of an era.

JULY 24, 2007  JORDAN'S OFFICE THE MIRROR IMAGE OF OPD

Underpaid lawyers,  no support personnel, no furniture,  excessive caseloads, even an office where the AC shuts down at 6pm (1pm on Saturday)!  Not the PD,  its the DA in Orleans Parish,  penned in an extensive report by the Times Picayune.

This is just one more reason to urge LIDAB, soon to be La Public Defender Board (LPDB?) to continue the compromise to consensus that got us Act 307.   The more inclusive we can be the more progress we can make.  Traditionally,  the LDAA has taken the position that the Public Defenders funding is some kind of "issue" for prosecutors and should be kept down.  Recently there is a realization that we are all getting screwed over by the system, including prosecutors, and it requires us working together to make the political system understand that!  When you read the details about ADA pay in New Orleans, you could simply find and replace "DA" with "PD" and you would have the same story!   Of course,  without the one detail that has Eddie Jordan at $150,000 a year: we don't think OPD  is paying that, and even the State Public Defender will only be at $134,000 in a couple of years.

JULY 15, 2007 ESSENCE OF OPD REFORM SHOWS CLIENTS BENEFIT

Bottom line: clients in serious felonies now have a chance to get help before the 701 deadlines.  Credit to the OPD leadership for a reform that makes sense, reviewed in the Times Picayune. 

JULY 11, 2007 SLATE SAYS BIG FORMS DRIFTED ON P.D. ISSUE

SLATE, the online mag,  says the private bar has not done its part to help New Orleans Criminal Justice since Katrina.

JUNE 27 -  NOW THE ADA IS IN THE DOCK!  IS THERE MORE TO THE N.O. STORY?

Just this April the Supreme Court noted that  "A district attorney is afforded vast discretion in determining who, when, and how to prosecute. LSA-C.Cr.P. art 61; see also LSA-Const. art. V § 26. See In re Louis Thad Toups, 2000-0634 (La. 11/28/2000), 773 So. 2d 709, 715 ." [State v. King, No. 06-KK-2383 , SUPREME COURT OF LOUISIANA,  06-2383 (La. 04/27/07);, 2007 La. LEXIS 907]

Certainly a DA can be in contempt, but not for choosing which case to go to trial with UNDER Article 61.  Some have said the problem in Orleans Parish is that the Judges have run the entire show at Tulane and Broad, and that the problems with OPD were mere signs of larger problems.  The lawyers are representing in the litigation.  The Judge is there as a neutral arbiter of the law.  Where does it say the Judge supervises and manages the professional discretion of lawyers?  Very interesting.  Can a lawyer be in contempt when a provision of the law gives her the authority and the Judge tries to usurp it?  Probably not. The remedy for failure to try a case is relief under the Speedy Trial provisions of statute or Constitution.   

JUNE 24 - NO RELIEF FOR FORMER FOUR - INJUNCTION DENIED

They are now legally the "four former board members of OPD",  in the wake of the Federal Court Ruling denying Injunctive Relief - we think the suit should be dismissed.  HB 436 have overwhelmingly passed the Legislature: this is the consensus framework for Public Defender Reform.  Even NLADA praises this Legislation.  The efforts in New Orleans were well founded in the philosophy we all embrace,  but ineffectively promoted in the real world politics: you can't take a plane to D.C. on a ticket to Dallas.  There is no way a simple local board could have ever expected to "reform",  and unless people accept the political reality of consensus,  a State Board won't either.  We do admire the former four and their ideas should be part of the dialogue moving forward.  But we don't think this litigation (or the silly traffic ticket attack) is in the interest of the clients.

We have a vehicle for reform. Even those who don't like need to work in that vehicle.  There is no political capital for anything else,  and we have a potential to truly have a kind of model PD system. But its not about elite special people with exclusive insight and ability to run a PD office:  lets put aside that kind of elitism. Accept that the PDs have a role.  After all, if the Former Four prove anything, its that good people can be frustrated in a bad system: that applies to Former Four and every Louisiana Public Defender!  Now there is a new paradigm, and we can make fresh judgments about people in the framework of some objective criteria.  DISMISS THIS NUISANCE LITIGATION!

JUNE 21, 2007  CORPS REPORT: STILL ALL WET, BUT NOT AS DEEP!

Relax.  Katrina was a 400 year event.  But what about a 100 year event?  NY Times reports the Corps of Engineers $7 billion project has "improved" things.  There is a "will I flood?" website available now for you to check your property in Orleans and Plaquemine Parish!

JUNE 18, 2007  Still only ONE PD in sections of Criminal Court - putting form over substance?

Orleans still has as few as one single PD in Sections of Criminal Court,  some 15 months after a new board took over, and despite hundreds of thousands of dollars in LIDAB funding.  One problem of course seems to be the move to get traffic tickets declared unconstitutional as a source of funding, which led to an absurd "escrow" of the funds OPD got from them.  Absurd because tracking those receipts will never happen,  the law is solidly against the claim, and most importantly there is an inherent ethical issue in a lawyer attacking the funding source for his clients!  After all, nobody sweats the lack of money other than the unrepresented defendants. 

So they wallow,  understaffed, and ironically you see the same contract lawyers who could still be representing indigents working the private criminal practice.  Kind of like setting a glass of water just out of reach of the man crawling across the desert!  Plus,  these absurd tactics have been the only substantive problem getting reform, and remain a problem getting additional support for New Orleans.

June 13, 2007   Amended Petition Relying on LaPDA passed provision

Around 2004 the Legislature passed on a near unanimous vote provisions of 15:144 E,  a statute drafted by LaPDA and sponsored by Representative Wilfred Pierre of Lafayette: PDs were to be subject to supervision to the same extent and manner as members of the private bar.   The law was amended to clarify the Judges don't manage the PD and their appointment of the local bard is not to be given that interpretation.  Ironically, when the OPD was flushed and reappointed,  the empowerment of the local Judges was kind of missed by the new OPD. 

Now those chickens are home to roost, and the four former board members are trying to make their case for continued membership under this provision: Judges can't change the board to manage the program.  Good point.  But probably not a Constitutional one.  Also one to be mooted by HB 436, which flushes the board again.   Due Process does not likely insure a particular elite their position: if that were so we would expect the same Former Four to seek injunctive relief against HB 436 as Due Process trumps all law!

What's funny is that nowhere in the speeches, publications or comments of anybody other than public defenders has the importance of this provision been recognized.  Once again this little statute was relegated to obscurity because of personality politics: the right people hadn't thought this up or supported it, so it was not admitted to the star system.  At least in the Amended Petition its getting its due,  however unfortunate that the cause of action is unlikely to survive.

The revised claim does improve things by specifically noting those particular policies Plaintiffs anticipate the Judges going after: vertical representation;  pre-indictment counsel; contract lawyers; investigation and others, some of which frankly the Judges have no business being involved in.  Of course, we know the claim that "full time only" has been debunked conclusively: it is a management choice, not a Constitutional Mandate.  June 15 seems to be the end date for an agreed cooling off period, so the new suit seeks injunctive relief from Federal Court: that would be 60 days worth, considering that HB 436 would take effect August 15.

June 11, 2007  "Former Four" Amendment sets aside 12(b) Ruling

An amending Petition in Federal District Court may postpone consideration of a Motion to Dismiss the suit seeking reinstatement of four former OPD Board members.   Lawyers say the court has dismissed the Rule 12 (b) pleadings without prejudice but there will be no ruling on the motions previously filed.

June 7, 2007  GOOD PEOPLE BUT NOT CONSTITUTIONALLY ESSENTIAL

Look, this is not a movie. Sure, the "Former Four" OPD Board members who were not re-upped by the District Judges are good folks, well intentioned and effective in many ways. But the glaring problem in the Federal Suit is that there is no rational way to hold that the Constitution requires a particular four people to be members of the OPD Board!  That's essentially why we think the claim will be dismissed on 12 B shortly.   

This case has implications for the Louisiana Reform movement as well.  To hell with this idea that only a special clique of people has the knowledge and skill to do this work or opine on it being done! If we have learned something this past year, it is that inclusion rules, and exclusion loses.  Perhaps more inclusion and consultation would have extended the terms of the Former Four.  After all, the same Judges they are now suing had named them in the first place!  But the Judges didn't consent to draining the system of traffic fines and attorneys while rebuilding. The clients didn't consent to waiting for things to get done.

Nobody is personally enshrined in the Constitution,  and its absurd to claim it. The Former Four can still contribute, and probably better,  in their other roles in Criminal Justice.  Trying to hold on to the OPD Board, particularly in its waning weeks, just makes no sense.

Meanwhile,  the Judges slap back through counsel, noting the problems with the claim.  Another filing  using that blunderbuss adjective in a parting shot retort was also filed this week, but this one is the better summary.

JUNE 5, 2007   JORDAN SAYS FEWER 701 RELEASES - LEGISLATURE CONSIDERING LIMITED CHANGES IN TIME LIMIT FOR INSTITUTION OF PROSECUTION

It is only a bail issue: Article 701 allows release without bail if the DA does not file charges within 60 days.  But New Orleans once again had its own problems and some wanted to extend that to 120 days!  A House Committee amended that provision to limit the 120 term to Capital Cases, and Jordan now says "problem solved" .  The problems of this one city seem to be so unique to Louisiana! 

JUNE 3, 2007   FORMER OPD MEMBERS RESPOND

Four former OPD Board Members have replied through counsel to the District Judges' Motion to dismiss a Federal Suit contending they must be restored to the board.  The unlikely claim is couched in terms that include sarcastic digs at the parties. 

MAY 20, 2007  TWELVE BE OR NOT TWELVE BE

Federal practitioners are familiar with the reticence of the Federal Courts to take up any matter, and the first hurdle is always to answer the admonition: "get out of here, we have nothing to do with the matter you are presenting!".  In the case of our OPD Board members voted off the island by the Judges,  Counsel for the Court, with the exception of Judge Hunter,  has filed Motions under Rule 12 (b) of the Federal Rules to Dismiss their Federal Claims to Constitutional entitlement to OPD Board membership.

Essentially the Judges are saying that 1) this is not a Federal matter in any sense because there is no Constitutional issue regarding the personal membership on the OPD Board of the four plaintiffs;  2)  there is no Federal Jurisdiction to attend to a speculative Constitutional Claim;  3) the matter is entirely within the purview of  State Law, and the Judges are empowered there to name the board, including a one year term proviso.   The colorful memoranda from the Court's Counsel accuses the Petitioners of "blunderbuss" whatever that is (see the footnote citing to a 5th Circuit Federal Case), and notes that there is an assumption the remaining Board is somehow suspect, which is speculative at best.  One memo focuses on the issue of jurisdiction, another on the issue of no cause of action, and a third (not linked) makes reference to failure to include the Louisiana Attorney General as an indispensable party.

As noted here before, there is almost no chance the Federal Court is going to intervene and mandate the State Judges appoint certain people to OPD's Board.  Given the backdrop of the blitz by HB 436 the case may in fact be mooted before a ruling. One thing that remains mysterious and incomprehensible is the sense that in some quarters there is a sort of "star system" in Crim Justice, which anoints certain folks as the mighty stars and convinces some people the "stars" are the only ones worthy to serve.  An undemocratic concept for sure, and one definitely not enshrined in the fundamental law of our nation or state.

MAY 18 2007 BE LEAVING IN NEW ORLEANS

The landscape is reverting to an earlier time when Louisiana Law was mostly a Louisiana profession.   The current Public Defender Act was amended to require PDs to be licensed Louisiana Lawyers.  Charismatic Clive is gone. Neal Walker the looming presence is gone.  New Orleans may be losing the edge that drew true believers from far away American cities as young people consider whether to stay in the City for the long term.   Katrina and Rita collateral damage.   The romance is wearing off and the failure of the system to move in response to the new Board and the Singer/ Sullivan project seems to have disillusioned some. They are going back home. Can the new PD system fill the needs in New Orleans and elsewhere?  Can we infuse some new blood into the profession?

About 85% of the Public Defenders in post reform systems are the same people as worked there before. So if you’re thinking of "changing culture" you need fresh faces and warm bodies. Marksville, anyone? You can see the recruiting table now at Harvard, with brochures on the disaster tour bus rides through the Ninth Ward and funny picture takeoffs on the "Chocolate City". Maybe we will have to focus on our own people and work for long term stability in recruiting local talent. Maybe the new Public Defender Act will hold some and draw new people in. Maybe not.

The experience in New Orleans has been that the candle isn’t burning so bright that folks can’t see the situation around them. Even some of the core people for the Cabal commute from Atlanta or the East Coast. Unworkable at best. Disconcerting for the future. Note to State PD Board: figure out how to get some lawyers before you get rid of the ones you've got.

MAY 17, 2007   NEW ORLEANS PROBLEMS - NO POSTER CHILD FOR LOCAL BOARDS

Creative and interesting are good terms for one argument presented in opposition to HB 436:  that what has happened in New Orleans will happen across the State!  Forget of course the Hurricane, the traditional lack of counsel and of course that it was all under a local board!   An effort was made to transpose any negatives from there to the State, and effort that clearly was not supportable in fact.  Clearly, the system shaking defiance of the Cabal had unnecessary ill effects: but there is no rational argument for preserving the "status quo ante" down in the Crescent City.  New Orleans remains a symbol of how things can get out of whack with an isolated, local system operating in a standardless vacuum. 

But the political lesson is of course that power remains power and in pushing reform,  you cannot assume there is no political component and just do whatever you wish.  Judges and Prosecutors are legitimate players in the system, and so long as they are not "messin in your b'ness",  they should be heard.  Leaving clients at the rock while you refine your systems is wrong, and the Orleans Judges were justified in being distressed that change was not made in a considered, deliberate fashion.  Not to mention filing a lawsuit in opposition to your own funding source: is there a conflict problem there?  Are you representing these clients or some broader public policy campaign?   Hopefully those few opponents to 436 are going to be proven wrong about their fears, and Louisiana will get a deliberate, considered and effective reform with the new powers of the State Board.

May 11  STANDING DOWN

We understand the parties will leave it at four board members inactive and no new members sworn in pending developments in the Legislature.   There is also some discussion in Baton Rouge of potential funding to help New Orleans through the post Katrina period, and we are hoping it will include OPD.

May 8 PETITIONERS CLAIM THEIR MEMBERSHIP ON OPD ESSENTIAL TO DUE PROCESS

The Petition filed in Federal Court in New Orleans against the Criminal Court Judges is, to say the least, interesting reading.  On the eve of "reform" motivated in large part by the same four people who claimed for years the local boards are the biggest problem in Louisiana,  they are Petitioners in a Federal Court seeking to assert their own indispensable membership in the OPD Board as the essence of Due Process.  Very ironic history also for the reason that they are complaining of judicial influence when they got their positions at the business end of a gavel in the first place: OK to hire, but not to fire?

Some of the interesting positions taken:

                - OPD membership is traditionally "lifetime until resignation"

                - by removing these board members, the Judges are interfering and impairing client representation

                - Injunctive Relief is needed to avoid irreparable harm by swearing in of new Board Members

But there is no specification of what the Judges have opposed in the OPD's operations, only conclusory allegations that their motives are impure.  Was it the vertical representation?  Caseload limits?  The Petition does not plead facts, and in failing to do so it relies on the Petitioners'' conclusions that their service is required by Due Process.  That is a major problem, particularly when seeking Injunctive Relief and asserting a  1983 claim, and it is one that is likely to doom any chance for relief.

CINQO DE MAYO - JUDGES REPLY - OH

May 5 and the Orleans Public Defender Board has been "this old house"ed,  with 4 members replaced.  Funny that the Times Picayune piece says "nine member board" and only eight were active.

As first noted over a year ago,  empowerment has its downside, and when a group moved to replace the Orleans PD Board through its influence with the Judges,  we warned that was a ride on a Tiger that might not end well.  When given power, sometimes you forget that it is actually a loaner, and if you really forget and stick your thumb in too many eyes, you will end up being dinner.  Perhaps it all had to happen because of problems in Orleans Parish: nobody can say with a straight face that "everything was OK in New Orleans":  500 felonies per attorney;  clients spending months in jail without counsel;  no tracking of inmates (so you turn up in court after waiting for weeks);  no motions practice (literally, no written motions);  no investigation; no expert witnesses;  no facilities for PDs to consult with clients (not anywhere);  AND perhaps most of all, not a damn thing being said for the clients amidst this perversion of the American Criminal Justice System!!  Most of us didn't even know, and still have trouble believing the kind of set up they had. 

Question is: do the Judges really want to go back, and is their gutting the OPD Board a sign that they really liked the old system? We think not, given the bull in the china shop approach taken over the last year:  fifteen days for lawyers to take a full time job and close their practice (a feat that is patently impossible and absurd);  a lawsuit claiming traffic ticket funding is "Unconstitutional" (a suit clearly not in any OPD client's interest);  incredible lack of urgency in staffing up at the courtroom level;  no PR and little public dialogue;  hostility to the Judges and lack of recognition of their legitimate interest in their own courtrooms;  clients becoming secondary to a larger policy mission of reform. 

NO,  lots of the Criminal Court Judges saw there was a problem and supported the Cabal, which is what started it in the first place.  But some of them are also past criminal defense attorneys and they weren't happy to find people, aka clients shunted aside while dogmatic policy was carried out.  Go full time if you wish, but do so at a pace that does not let folks languish for months and months!! (Of course Louisiana has learned that the "full time" mantra is not in fact always applicable)  Mount a challenge to traffic ticket funding, but not from the inside where you are supposed to put clients first!  Struggle against the Judges where they are in error, but don't ignore the fact that many of them are professional, motivated and even concerned for the clients.   Above all, the clients have to be primary and you have no right to delay or deny their rights for any greater good.

As for a Federal Case, its hard to see how Board Members can prove anything akin to a Due Process Right.  Unlikely the Judges passed a resolution to terminate due process by getting rid of four people.  Nobody has ever won such a suit.  And the Legislature is likely to eliminate the boards before the Federal Court gets done anyway.   But now the question is whether the hornet's nest down in the crescent city is going to buzz up to BR and screw up reform in Louisiana. 

April 26, 2007  TRAFFIC TICKET FUNDS FREEZE ANGERS JUDGES IN ORLEANS

Wondering about the ire of some Criminal Court Judges in New Orleans?  One Judge says he's seen records of a $750,000 escrow fund: traffic court costs that OPD has set aside pending its challenge to the Constitutionality of Indigent Defense getting that money.   Now that's interesting, because the OPD has no idea who's money that is,  so what happens to it even if they prevail?  Well, the concept is its Unconstitutional and unethical, so you can't really pursue that litigation and keep the money!  Is it just that you WANT to screw up things?  Couldn't you have outside counsel raise that issue so that clients aren't punished for your peculiar view of the law.

We have previously noted that the law is all against this concept of illegal court costs.  Beyond that,  what is the gain for the clients in gutting your funding?  Particularly when its $35 per case!  A bit illogical, and its understandable that Judges who are told they can't do their jobs might be a bit annoyed when they find its because you have fixed things so you can't do yours!

April 20, 2007  FIZZLE NOT SIZZLE IN MEDIA ON OPD

Its an only NPR News item in New Orleans as Judge Hunter decrees the PD can have no more cases, and the Judges ask what's happening to the money.  Some folks are saying that a challenge to the funding by traffic tickets is causing OPD to hold off on spending that income, and clients are being squeezed in the play as OPD cannot provide counsel.  But only NPR gave much play to the story, which included a protest outside Tulane and Broad.  The story is nothing to compare with Va. Tech and Iraq, among other things.  Legislation is in the hopper, and the best thing would be for somebody to intervene in New Orleans and set aside egos and attitudes and get back to clients and cases.  But it won't happen over night.

In the meantime, another meeting next week to look for resolution of the Judges sacking the Board of OPD by reducing it to three members from nine, effective April 30th.  Kind of a reverse surge of sorts, to what purpose is not clear.  Please. Standards ASAP!

April 17, 2007 -  HOLD IT!

We hear the Orleans Criminal Court Judges are taking the time to discuss the OPD Board thing with others who are urging that things be left alone pending the August 15 effective date of the 2007 Public Defender Reform Act.  Noteworthy is the provision that will allow for appointment of a Chief Defender with some input in the form of a nominee by the Judiciary.  Nothing changed between now and August 15 would stick unless the new State Board approves it anyway.  The Judges may distinguish themselves by showing a deliberative approach that has often been lacking in New Orleans this last year or more.

April 16, 2007 -  Cabal Kaput?

Meetings last week reportedly have the OPD Board reduced to 3 members, but there is total confusion on what this means.  Sad for the clients once again, particularly as the program was making progress in reorganization, hiring attorneys and setting up the office. 

The Board met Wednesday and named Christine Lehmann Chief,  on an interim basis.  The Public Defender Act of 2007 would have eliminated the Board, but clearly the bitterness between the Judges and the Board was insurmountable.  Sad story continues.

April 9, 2007   Singer Praises Martiny on the radio - the DC circuit

Orleans PD Professor Steve Singer has praise for Danny Martiny and efforts to finalize a Public Defender Reform Act for the current Legislative Session opening in a couple of weeks.  Some were surprised by the endorsement,  although it is clear that Singer has found the path to reform at a local level much too tough without State action.  OPD does not yet have a Chief, but under the new Act the Chief would be the focal point for management and standards enforcement.  The State has provided funding to New Orleans, but problems persist, and Singer has publicly called for $2.1 million in Felony Court for the minimum personnel required.

Meanwhile, interesting to note that Steve Singer,   his wife Jancey Hoeffel,  and Ron Sullivan all have ties to the District of Columbia Public Defender Program,  as does Professor Norm Leifstein, who testified in late March before Judge Hunter.  Here's hoping the DC circuit will support Louisiana's first PD reform since 1974.

March 31, 2007  "speed over accuracy" - A tradition

Judge Hunter has ruled in the Edwards case that OPD is not getting any more cases.  In the Tessier II ruling, Hunter follows the pattern set by Calvin Johnson years ago, holding that Powell Miller cannot adequately represent his clients because he has too many of them, and no time to counsel them or advise them, much less investigate their cases.  Succinctly summarizing the problem, Christine Lehman of OPD says the tradition in Orleans has been "speed over accuracy" - and the clients have been paying the price.

OPD now says it needs about 2.1 million to staff up Criminal District Court.  Put one way, that would be three lawyers per section,  at gross of $70,000 each,  carrying about 60 cases,  or a total cost for felonies of $2.4 million a year.  This is a reasonable request, and LIDAB should look to it ASAP.

March 24, 2007  China Syndrome / Stockholm Syndrome:  OPD Citizen Hearing, or "Tessier II"

Sitting with Professor Norm Lefstein of Indiana University yesterday in Judge Hunter's Courtroom, the most interesting comment I heard was when he leaned over and said "that's how they do it in China".  He was noting that the Orleans Parish practice of having he court and DA announce which motions are needed for the defense, instead of the defendant filing them, is not an American procedure.  In response to carrying hundreds of cases,  PDs and courts have cut corners, including motions practice.  Lefstein testified that the LaPDA promoted standards reflect ABA principles and further, that the current OPD caseloads are so excessive as to violate the 6th Amendment.  He noted they exceed Rick Tessier's numbers in Peart.

Despite a years' work,  OPD still cannot tell you how many cases it has.  Consequently, you would be hard pressed to define how much money it needs.  Its somewhat of a mystery that in November 06 there were about 1,400 felonies in process,  but the DA had another passel of suspects under arrest in over 2,500 cases!  The attorney bringing the motion had 167 felonies, and testified that he was ineffective because he essentially did nothing outside of court in most of them,  couldn't research penalties, and never investigated.  One has to wonder how long it takes for a lawyer to accept that and not lose sleep: is it like the hostage who begins to identify with his captors?

Rick Tessier was in and out of court during the hearing.  He must be wondering what the hell happened!  Calvin Johnson and the Supreme Court have already ruled on this, non? 

One could estimate that with three lawyers in each of 12 sections OPD could nearly cover felonies for about $210,000 per section, or just over $2.4 million.   But then you need investigation, staffing,  and a modern office.  Seems less than the $10 million in the DOJ study but a lot more than some $1.4 million they used to generate locally.  They may not be the best managers, but money seems to be the issue.

It was great to hear Jim Boren testify that "you can have whatever system you want,  but its not going to work without the money".  It was also great to have the LaPDA sponsored Trial Lawyer Performance Standards at the core of the evidence regarding the Right to Counsel.  Not so great was to have Louisiana's Criminal Justice System compared to a third world dictatorship.  But you know,  high caseloads will do that!

If things don't get funded up,  there are another 6 to 10 lawsuits out there.  Bad news is that one of this is Prof Metzger's challenge to funding with court costs.  Now that's a good idea!  Take away the only sure source of funding, and turn totally to the one we've only barely convinced Louisiana to use! 

MARCH 22, 2007  Local Control is a dog having its day

Discussions on Public Defender Reform have moved to a "local interest" perspective in which a State authority will work under objective criteria to assist and regulate District Defenders in performance of the Right to Counsel.  There is interest in this in Orleans Parish, and remarkably this may help get reform passage by illuminating the importance of local differences and practice in any reform.  (See La. Supreme Court in State v Citizen)    OPD would like to keep its reform going,  and under the current bill it will be subject to State regulation but at the same time an OPD Chief will be hiring and firing in his program.  It is likely that the difference under the new system will be that concerns for clients without counsel would have to be addressed as part and parcel of any changes, but no-one thinks a State Board would stop a local program from improving practices and compensation.

Ironically, some of the voices who loudest once called for a State Czar are now hoping they get to keep going in the chosen path for reform at the District level.  Every dog has its day.

MARCH 9, 2007   Term Limit?

Given that the new OPD Board had a one year appointment by the District Judges,  will they be reappointed?  Orleans Judges have been reasonably frustrated in the last year.  Progress has been made, and particularly in Juvenile Court Judges seem to endorse Cabal d'Orleans work. But in Criminal District Court things are not so "peachy", but the Judges have been quiet.  Are they going to pull the plug now or wait for the new legislation to end local boards?  Does a board have any vested interest in staying on?  Does Title 15 set a three year term or can the Judges appoint for one year?  Have things improved enough that the Judges will renew the Board? 

Time will tell.  Hopefully everybody will look at what impacts the clients before doing or undoing.

March 8, 2007  Juvenile Regional Services?

Comment of the day on the OPD Contracting for Juvenile services with LIDAB Grant:  "Well, if its just for New Orleans, why is the contractor 'Juvenile Regional Services'? 

In addition, we have heard from Ed Greenlee that the only question is accounting for State money,  and we certainly agree that District Defenders will have transparent accountability or be in big trouble. Ed has raised the concern and clearly its not on him if things aren't kosher.  We hope JRS aka JJPL or whomever,  will provide detailed accounting, and we expect they will.  If they don't,  this will be a one year wonder.

March 7, 2007  COMMUNICATION BREAKDOWN, OR BLACKBALLING?

The State Chief Defender must be an advocate for Indigent Defense, and this includes standing up to the Executive Counsel of the Governor on issues of effective assistance of counsel and prerogatives of the local public defender office. Unfortunately there seems to be some question about whether associates of JJPL are being blackballed in political manner when it comes to doing Juvenile Defense work.  A related or derivative group was the object of a brief flurry of discussion at LIDAB today when Chief Greenlee indicated   the OPD contract relying on a LIDAB grant of about $300,000 was somehow problematic because the Executive Counsel of the Governor's Office had a problem with certain activities of JJPL in the past.  (This contract was not with JJPL but some of the folks in a new 501(c) are JJPL people)  Greenlee said he was "the messenger" for the Executive Counsel on this point, and we hope he can pass some messages the other way as well: let the lawyers represent their clients, and don't play politics with the Right to Counsel!

Thankfully, the Board rejected any suggestion that OPD could not use its grant to contract for Juvenile Defense.  In fact the board approved the contract with one dissenting vote.   But the episode is more than troubling.  LaPDA does not support this kind of manipulation,  whether from the Governor's Office or anybody else.  Clearly OPD had a contract providing for Juvenile Defense Services and that was consistent with the grant and authorized by OPD being a political subdivision capable of contracting.   We congratulate LIDAB for affirming the contract.  There must be no manipulation of the contract and grant process to punish certain lawyers or groups for their advocacy.  That is not part of the Executive Counsel's authority.  The reason we want objective standards and policies is that this kind of abuse is intolerable.  Hopefully this was a communication problem and the Governor's Office really is not suggesting that a certain group of lawyers is to be blackballed and excluded arbitrarily.  The clients cannot afford this, and it is unconscionable to suggest OPD might be "punished" by withholding other funds. JJPL has made a real difference in this State and its legacy is a model for what the rest of "reform" should be.

Orleans was also cut out of misdemeanor help for an estimated 20,000 cases because the numbers "seemed high" compared to other districts.  LIDAB didn't do as well on this issue.  Instead of recognizing the specific problems in Orleans,  it consented to simply excising the whole question of misdemeanor funding from Compliance Assistance Granting at the end of the fiscal year.  Meanwhile,  don't get locked up in municipal court for a petty offense.  We know of several cases of people spending a week in jail without counsel on "nolle prosque" or "refused" charges.  Collateral damage.  We haven't supported every step at OPD under Ron Sullivan,  but we certainly think LIDAB and the State Chief should be engaged in helpful and supportive consultation for the clients' benefit.  Educating politicians is part of that.

The notable unfortunate quote of the day: "This is not about the quality of representation".  Definitely not.  But it should have been.  Instead, it seems something else in the nature of political b.s. was really what it was all about.  Damn, New Orleans is really getting to be depressing!  They're taking all the fun out the Cabal blogging! 

March 1, 2007   HUNTING FOR CITIZEN - INTERIM JUVENILE DIRECTOR

Judge Hunter will take evidence March 23 after a hearing set  Friday March 2  in New Orleans on caseloads and ethics was postponed,  as OPD seeks to show the impact of a lack of resources on client services.  The record is expected to include discussion of the 2006 LIDAB Performance Standards for Trial Counsel.

As to Catherine Crawford, the interim Juvenile Defender Director for Orleans,  her post is full-time. She is finishing up some cases in Chicago, and so is back and forth a little at the moment, but will be living and working in New Orleans for the duration of her time as director.  There is little doubt Orleans is a tough place to find and recruit lawyers right now.   The changes in the Juvenile defense side have been some of the most successful since Katrina.

February 26, 2007  SO YOU ARE AMIDST A DISASTER - HOW ABOUT VOLUNTEER LAWYERS?

The latest twist in the Crescent City - Judge Bigelow says a Louisiana Attorney has to be in court with any volunteer PD even under the Supreme Court special permit.  Makes it tough to get boots on the ground in the middle of a court disaster.  "Can't we all just get along?"

The justifiable frustration at the snail's pace of constructing a PD Office is not sufficient reason to deny folks a lawyer.  If the Supreme Court says they can appear,  what's the difference?  LaPDA has actually referred a number of out of state counsel who want to help and who logged in at our website by e mail.  Once again, the clients suffer.

February 21, 2007  MECCA ON THE MISSISSIPPI

With about 1/2 the needed lawyers,  the OPD Chair is not settling for anything less than a PD Mecca - New Orleans will be the place from which all great defender programs flow. 

February 8, 2007  MUNI TRAFFIC DEFENDER POSITION

Part-time position with benefits and +/- $30K.

February 5, 2007  PARENTS DESPERATELY SEEKING HELP

This is no Katrina plea:  this came in to LaPDA via our website TODAY:

February 3, 2007 Another Loss

Friends and cohorts gathered in New Orleans today to celebrate the life of Neal Walker.  New Orleans has no luck these days.  Neal's zeal for the clients will be missed for a long time.

Jan 30, 2007

Carefully, the new OPD will start to advertise for lawyers in March 2007, and is looking to have an ethnic diversity. It is going to be a model for all models.

The Captain of Titanic was probably making sure the brass on the bridge was quite polished too. It was the liner of all liners. Its passengers were not cared for.  And the clients of OPD?   Recent visits by volunteers seem to confirm that for the routine arrestee in New Orleans,  the new board of April 2006 has yet to make an impact, and Katrina arrestees are still not getting help from the Public Defender Office.   Getting it right is a good thing, but maybe not when folks are cooling their heels in prison.  Maybe you could tidy up later and get some help into the system immediately. A Brookings study notes the lack of progress in the Criminal Justice system, including only "a handful of public defenders" may be hurting recovery efforts. The wailing we heard before April 06 has quietly ended - was it motivated by the clients?  has it been satisfied by the names on the board list? has there been a real change for the clients or do they simply have to wait until the doilies and place settings are all done just right? was it just that "the right people" were not in control, or was it that they did not have the proper motivation? Perhaps the clients just have to suffer now in the interest of future clients.  Has the original plan hit the rocks? 

The PD "recovery" is no farther along than anything else in the long term struggle to get New Orleans back.   This is not an opportunity.  The collapse of Criminal Justice has deep sociological impact, as the Brookings Katrina Index report recently noted: "With the highest per-capita murder rate in recent memory, a sense of lawlessness abounds, helped along by the knowledge that police are still working out of trailers and the fact that jail space is scarce, court dockets are overflowing, and only a handful of public defenders remain in the city."  We do not have time to build an unsinkable ocean marvel.

Jan 25, 2007

Its great to have a policy idea.  Looking back at the five year plans in Soviet Russia,  you see a lot of grandiose ideas.  But you have to understand the facts and realities.  Likewise,  the paradigm of full time Public Defenders is workable and beneficial in principle, although no study provides any empirical evidence that clients are better off.  Lawyers by definition are generally not "full time" for any client except the wealthiest, and the claim that a full time defense attorney somehow is inherently superior is unproven.   Most talented attorneys do many things, handle many cases, and many clients.

The basic question is whether you can attract people to fill a full time position, and what will the quality of the talent be.  Orleans Parish is still struggling with that one.  Tragically for the clients,  the contract lawyers left a huge void that has yet to be filled.

A statutory mandate for full time would simply spread that same result across the State.  Full time/ contract or case by case,  LIDAB should be the policymaker regarding form of delivery, guided by Trial Performance Standards.  Otherwise, we're in the arbitrary political game which is a constant of  Louisiana history. 

Jan 11, 2007

Steve Singer stepped up when Judge Bell threatened contempt - and got about 5 hours worth of lockup for his courage.  Pretty outrageous to put a lawyer in contempt because the State is not funding Public Defenders. Very outrageous. Interesting that the Judge was all for the changes.

December 29 Good Intentions

The Orleans Public Defender's Clients are plagued by the Rule of Good Intentions:  "The road to hell is paved with good intentions".  First, some dynamic trial lawyers on prosecution and defense created workarounds for huge felony caseloads, including the compact by which they submitted issues to the court without formal motions practice.  This defacto due process was dejure illegal, but what choice do you have in those conditions?  

Then,  the new board comes in and since April has had the best of intentions in re-structuring and reforming.  But still the clients languish, in part because those de facto workarounds were seen as somehow heinous and atrocious instead of a valiant effort to save the clients.  So they come through court even today,  some 8 months after change,  shuffling in and out without counsel.

Kerry Cuccia's group has a handle on the new Capital Cases and will do exemplary work.  Kerry know the Orleans Parish system.  He did great work in that old system.  But the sad irony is that for a defendant in Orleans Parish,  it is still hell.

December 9  STANDING DOWN WHILE OID BOARD STANDS UP

Sam Dalton established the correct approach to the balance of power between the Judges and the Public Defender through the persuasive authority of litigation.   In Orleans Parish the Judges tacitly agreed this week to wait for more information from OIDP.

The Law required Judicial Deference to the PD Board.  Arrestees  should really have waited until next year to commit any offenses, because the plan is for a "pilot program" on vertical representation to begin in January.  That's really unfair to them. One can only wonder how long the new board will let so many clients flounder while it reorganizes.  

Capital Cases are covered, but clients still have no attorney for the most part,  are still be lost in the system, and 72 hour hearings are not getting any attention for the folks locked up.  Neal Walker says over 30% of arrestees are never charged! That means innocents are doing 60 to 90 days in jail because they don't have access to legal advice.  Whatever the motive, a policy of accepting that from April to December is simply not right! 

December 7  DAY OF INFAMY  (for Gen X this is the Anniversary of the attack on Pearl Habor)

The Court of Appeal would not intervene, and the OIDP Board decided to try talking to the Judges about problems and solutions in Orleans Parish.  Orleans PD Board has set a conference with the Judges and no contempt hearing will be held Friday.  Bar President Marta Schnabel chimes in in Letter to TP today.   Judges have a legitimate interest,  but short of taking over the PD in violation of 15:144 (E),  and the Public Defender has to recognize their stake in the system.

December 5  GAUNTLET DOWN and OP ED STATING THE OBVIOUS

Majority of the Orleans Criminal Judges are fed up and the result is an exparte Order and Contempt Hearing on the entire OIDP Board Friday. "All we want for Christmas is my two PDs"  Writs have been applied for as the Order appears to violate 15:144 E which says the Judges can't manage the PD Program.  (FYI that was a LaPDA statute, unanimously approved by the Legislature in 2004 and backed by the La District Judges Association)   The Judges are playing into the hands of the Cabal, but this could all lead to a very bad precedent: suppose the Courts say its OK?  Dramatic.

In the meantime Dwight Doskey gets an acquittal in his latest homicide case, proving again that the rule book may have missed the point on competent counsel.  No training director, trial supervisor, or consultants on this case involving 86 stabs of a wheel chair bound vic.   The Picayune published Dwights' views on the current state of affairs in the Orleans Indigent Defender, including salient observations on hiring a training director before having a staff and the part time contracts mandated by a full time policy.

November 21 OVERPAID PARTIMERS

$100k to "design a Public Defender office"?  Absurd.  Its not the space shuttle. Yale or no, you could have gotten a full year out of a professional public defender for that . . . .

November 21  SLEEPING IN THE BED YOU MADE, AKA "YOU MADE IT YOU EAT IT"

Judges have no business telling the PD how to assign cases or direct resources, particularly sua sponte and without a case or controversy before them.  The worst thing that has happened in New Orleans is that the Judges have been given a de facto role in the PD because they sacked the board and created a new one.  LaPDA has always opposed any idea that the Judge has a right to tell the PD who to put in which court.  Regardless of the issues before OIDP and whether we agree with the pace and lack of transition,  the independence of the Public Defender is essential to Due Process and Judges have no authority to impose management or policy decisions on the Public Defender.

Multiple contempt citations have issued in New Orleans.  It is not contempt to run your law office the way you see fit, and it cannot be contempt if the PD doesn't have the resources to run the best practices but tries to do so.  PDs have been used by the system for years: "you don't have the resources, so just do what you can so the system can roll and get cases closed".  Reasonable compromise doesn't include selling out the client.   Time is up for that!

Now we hear the Judges have specific directives they would like to impose. We all have our ideas.  But as bad as things are, Judicial interference is unacceptable.  Turning over the applecart has unforeseen consequences.  All of this is the death knell of the "local boards".

November 18  CALVIN ON COLLAPSE

We agree with Judge Calvin Johnson, who was in his office in New Orleans during the flood: the epic disaster left us all to "do the best we could" but doomed us to failure because you can't really expect to operate a system under conditions of total system failure.  By definition the catastrophe that was Katrina tore the very fabric of society and its silly to try and take from that a lesson about structure or a claim that those trying their best did something wrong.

November 13  BACK TO CONTRACTS!

OIDP is advertising for contract lawyers.  Let's see:  there were 7 contract lawyers who had to go full time or quit.  They quit.  Now OIDP needs contract lawyers.

Has the curtain come down on the Sullivan show?

November 6  REPORT FROM FRIDAY COURT - SINGER SAYS OFFICE SHUTDOWN

Early in the life of our euphemistically named "Cabal D'Orleans" we quoted sources close to Steve Singer who said his plan was to 1) take over OIDP;  2) get rid of lawyers on staff; and 3) shut it down to force more state funding.  This is kind of a dream scenario for some folks involved in Indigent Defense.  In the wake of the new Board,  clients remain unrepresented and the mantra of "full time" has taken precedence over actual representation.

According to Media Reports three days ago Judge Hunter held a hearing at which Singer indicated it would take longer to get attorneys, and that he would not be able to operate past 2007.  Judge Hunter asked for a date certain when the program would be at caseload critical. 

Its an interesting dynamic.  You close the office. The clients go unrepresented.  Will it work?  So far it hasn't worked for the clients, but one supposes that if this actually happens, SOMEBODY WILL DO SOMETHING.  The problem is the OIDP Board will not decide what that is.

November 1, 2006

WGNO REPORTS ALL COURTROOMS OPEN IN ORLEANS - SINGER SAYS "WE AREN'T GETTING IT DONE"  All the courtrooms are finally ready, more than a year after the twins.  But OIDP is still languishing according to Steve Singer.  11 1 06    SINGER TELLS WWL HE MAY NOT BE ABLE TO COMPLY WITH JOHNSON ORDER - Another N.O. TV report has Singer saying there probably won't be lawyers for four Capital Defendants as Ordered by Calvin Johnson, again confirming that the fire 'em, don't hire 'em project leaves clients floundering.  11 1 06  

October 30 - Part Timers now include Training Director

Still unstaffed, the Orleans PD has now hired a "Training Director" who apparently flew down on the PD dollar for a meeting last week and then jetted back to Atlanta.  They hired a "Special Litigation Director" who took a two week vacation and is clearing Public Information Requests.   Prof Singer was tied up and unable to get to court last week - Judge Johnson declined to have a phone status conference.   Capital Cases are being contracted out at $100 an hour - quite a premium compared to the "full time defenders".

OCTOBER 13  -  THE PART TIMERS TAKE EXCESSIVE CAPITAL CASELOADS - BUT THE POLICY IS TO HIRE NO LAWYERS BEFORE THEIR TERMS ARE FUNDED . . . .

To paraphrase the Englishman Clive "poor OIDP, they have no money and yet must represent thousands of clients!"   Of course,  if you want an example of how not to move to a new system,  this program is going to get its picture in the textbook.   There has been little thought of the clients currently in the dock.   We were glad to hear from Pam Metzger at the Right to Counsel Committee Meeting last week that Tulane is working on the backlog boys and girls in an effort to get them out of the system, one by one up to the 3000 total.

By now most all of the OIDP veteran trenchies are gone, and OIDP now has a number of "Executives".  Among them,  Professor Steve Singer, whose wife Jancey Hoeffel was our champion on the Performance Standards and is a former D.C. P.D. and member of LIDAB.   Both are buds of  Professor Sullivan, who has come in as a consultant to reform OIDP.  Christine Lehman,  wife of our bud Richard Bourke,  is another executive.  Singer is

Many observers see this as "OIDP will go from the "worst organization on paper with the best success rate to the best organization on paper with the worst success rate".  But nowadays you MUST HAVE YOUR PAPERS IN ORDER!   And you can't base management on trial results or purportedly good plea deals.  That's kind of conjecture just ain't data . . . While a better transition would have retained the experienced professionals in OIDP,  it doesn't change the fact that some change was overdue. 

The concern is and we are already seeing signs of it,  that while claiming to need full-timers,  OIDP will still give contracts to some "special" lawyers, and that means all this full time only stuff is b.s.    Singer is quoted in the T P as saying they are contracting for 30 Capital Cases.  In addition to that,  we haven't heard that Singer is no longer teaching, and by definition therefore, he is not "full time".   The latest NLADA report endorses contracts for some programs so the whole full time mantra is dead, and OIDP continues to prove that, no matter the official line.

On the good side,  Prof. Metzger told the Right to Counsel Committee nobody is going to be hired until they know that a year's salary is available.  Well, she said "in the bank", but we think OIDP knows the State won't appropriate funds for the OIDP to put in the bank as such.  So there is progress,  but if you were a client in jail on charges for Orleans Parish since Katrina,  you might not have any reason to think so, and that remains the continuing tragedy and failure of  OIDP,  new and old.

SEPTEMBER 22ND - CONTEMPT HEARINGS  OIDP has been  ruled in as a Board for contempt hearing October 25th on issue of delay in implementation of Capital Counsel,  and meanwhile some of the Cabal's original supporters are now suggesting they have had it with the delaying tactics applied and impacting Capital Trials.  Meanwhile the Board reportedly has not said it will pay Dwight Doskey for a Capital Matter tried to a Jury without seeking death but ending in responsive "sexual battery" verdict. 

Sullivan Plans Included Going to Jail

"Singer said part of the indigent office's capital woes could be resolved if District Attorney Eddie Jordan's office assesses which cases could result in a death penalty from a jury and reduce the charge in cases where that is unlikely. " Times Picayune METRO  9/14/06

The continuing OIDP crisis includes a story that has the Interim Director telling his staff "I will go to jail with you" at an initial meeting.  A public challenge to DA Eddie Jordan as reported by the Times Picayune seems to illustrate that a broader strategy of pressuring the system is at work beyond simply getting lawyers into Orleans Parish Courtrooms.   Neighboring parishes like Jefferson are not having this crisis dynamic, but they aren't telling the DA how to select his Capital Case either, at least not publicly.  Apparently sticking your finger in somebody's eye doesn't get them to cooperate,  but it is certainly interesting to see the theories in practice.   We have heard for years about how this must be done, and now we are seeing the concept of the adversary process outside of the courthouse put into motion.  Its not working.   Clients are continuing to flounder without counsel, while the executives stack up.

We are sure there will now be "seminar" appearances for Professor Sullivan, praise for bringing the DA to heel, and a lot of total b.s. that completely ignores the contempt shown for lawyers and clients in New Orleans.  Its all about heroism, and you can't be a hero doing the mundane work of a Public Defender.  But objectively,  a great opportunity is being squandered.  You could have seen a transition to something else without continuing the crisis.  Unless the crisis is the cause celebre'.  For that you need the dramatic re-enactment of the freedom riders' days in jail, albeit not at all as noble and usually somebody else other than the heroes doing time.

Months ago a group led by Professor Steve Singer pushed for the Orleans Judges to sack OIDP and start over.  They had some good points about an inert board and need for a new strategy.  They planned to bring in an outside consultant type to build the system.  Somewhere along the way it seems they put aside the concept of helping the clients for some larger political goals,  like "burn the mission to save the mission".   The result seems to be that the newly empowered Judges are going to take another swipe at OIDP.

The irony is that this week at least two OIDP Attorneys were in fact threatened with doing to jail, and the Chief was UTL (unable to locate). Not in court and not reachable on the phone,  at least through the fourth day after.   The OIDP Board is meeting Saturday, but there seems to be no interest in a transitional process which actually tries to make things work.  For some reason the effort seems to be to incite as much difficulty as possible on the ridiculous assumption that nobody will notice it is intentional.  Suddenly money is going to fall from Baton Rouge and all will be well. 

We are now just about finished with this experiment.  Judge Hunter has refused, after all, to release any "criminals", regardless of the delays related to Post Katrina.  The District Judges in Orleans are looking for a work around because they want clients to be represented (no kidding!) and the game of  conning the DA into charging the way OIDP wants him too has petered out.  There may be some hiring directly by the court instead of the OIDP.  So much for getting Judges out of the PD business.  Create a vacuum and it gets filled, not exactly the way you expected.

The seven lawyers who stayed on through the Post Katrina disaster, tried to represent, and faced a 15 day deadline to quit or give up any financial security were treated the worst by OIDP leadership.  Not much respect or gratitude.  People looked at the bigger purpose: getting rid of the system.  Oh yea,  lets give this kind of crap a try at the State Level !   Lets  have exponentiation of the number of clients who have overloaded lawyers, or no lawyers, and face the Death Penalty without counsel so we can have them wrongfully convicted!  That'll show 'em!   

It would be nice if we could just have a system in which the clients come first and radical politicos get out of the PD business.  You can actually get reform while serving the clients.  This is one of the big reasons LaPDA has fought against the mindless manipulation of indigent defense for ulterior political motives, and thankfully, has been successful in the Legislative and Executive for nearly 20 years. 

As far as going to jail,  as always,  the big talkers are not there.  Its the clients doing time, and still virtually unrepresented. Although the trenchies are doing the PD work,  and have been, their prize is being  threatened with contempt.    But the Judges know the source of the problem, and they aren't going to fall for it, or stand for it.  Is this a sad end to a hopeful beginning?  That's up to the Cabal d'Orleans. 

9/15  

About the writer - G. Paul Marx is a Trial Lawyer with 28 years' experience, including over 27 years as a Louisiana Public Defender in Lafayette, Louisiana,  17 as Chief Defender and more recently as an Appellate Defender.  Currently in private practice including service as Executive Counsel to the Louisiana Public Defenders' Association, he has a long career in Journalism on his resume, including Newspaper, Radio and Television. The commentary in this web log reflects his own personal views and in general is consistent with the organizational views of LaPDA, however the particular tone and "humor" should not be used against the association, as it is totally that of the author. 

During G Paul's tenure as Chief of the 15th Judicial District,  no Public Defender Capital Defendants were sentenced to Death, and there were numerous responsive verdicts.   He tried a number of Capital Cases and many jury cases, and is currently on the CJA Panel for the Western District of Louisiana as well as working indigent appeals with the Louisiana Appellate Project.  In fact, since 1978 and continuing today,  the 15th JDC Public Defenders have never had a client subjected to a Death Sentence.  At least one change of venue case did garner a Death Sentence from a Lafayette Jury during this time, and in fact in 1978 Lafayette was #4 in terms of residents on Death Row.

Marx took on a role in two Death Penalty Cases pending in New Orleans post - Katrina,  at $110 an hour, well below the market rate, along with a number of other volunteer attorneys.  One is definitely over, with a Life Sentence, and the other is pending but probably will not end up with a Death Sentence based on current facts. 

During his tenure as Chief Defender,  Mr. Marx was particularly bothered by private lawyers who made specious claims that "all the public defenders are unqualified",  and even as he passes mid-life,  one of his pet peeves is people who make sweeping pronouncements without any foundation in fact or knowledge.  These claims were made by people who had never (and never still) studied successful work in the 15th Judicial District.  

This web log is an effort to support Due Process and the Bill of Rights, while refuting that unfair bias, along with other issues of injustice apparent from the lush semi-tropical territories of South Louisiana to the piney woods of the North.  Marx has a personal website at paulmarx.com