by Tom Gogola
Draconian cuts in the budget for lawyers who represent indigent defendants have come back to haunt the Orleans Parish criminal justice system.
Upwards of 500 indigent defendants may have been locked up without the benefit of an assigned defense attorney over the past year, according to a brief filed today in the state Fourth Circuit Court of Appeal. The brief charges that “many indigent people facing serious criminal charges in New Orleans do not have attorneys.”
The court papers were filed by William Quigley, a constitutional and civil rights attorney who teaches at the Loyola College of Law.
Quigley said that prior to layoffs last year, one division of the Orleans Public Defenders represented over 500 people, all of whom were cut loose from their counselors as the budget ax fell.
“It is not clear what happened to those 500 people,” he wrote.
One judge on the Orleans Parish criminal court bench has responded to the public defender crunch by refusing to let prosecutions go forward in cases involving multiple defendants – to the dismay of Orleans Parish District Attorney Leon Cannizzaro.
In February 2012, Orleans Public Defenders was forced to cut about $2.5 million from its $9.5 million budget to close an anticipated fiscal year-end shortfall. That led to layoffs and other cuts – and an attendant spike in caseloads for the remaining group of about 60 defense attorneys.
In addition to layoffs, the caseload crunch has been worsened by prosecutors charging multiple defendants in an increasing number of high-profile, mid-level felony cases.
Last year’s budget bust forced the public defenders organization to close a division of its operations devoted to ensuring defendants’ rights in cases where conflicts between co-defendants may arise. It reopened months later but with less than half its original staffing.
In the meantime, up to 500 defendants were either released on bond or locked up at the Orleans Parish jail, never having been assigned a defense lawyer as they await their day in court.
In today’s court filing, Quigley asserts defendant Christopher Gordon’s constitutional right to a competent defense. Gordon in September was co-charged with another man on felony drug possession charges.
Gordon was arraigned and entered a not-guilty plea last October, and in December, Criminal District Court Judge Arthur Hunter put the brakes on his case based on Quigley’s argument that Gordon could not be prosecuted without first being assigned a criminal defense lawyer.
Quigley is not a criminal defense lawyer.
“At my request, Judge Hunter has stayed the prosecution of a number of these cases,” Quigley said.
Chief public defender Derwyn Bunton said the city’s numerous new anti-violence and anti-crime initiatives are driving the spike in the number of cases involving multiple defendants. He cited a recent racketeering case that involved 10 defendants.
“When that case hit the system, I thought: I hope some of them have private counsel, because this case is not going anywhere,” Bunton said. “There are more and more of these cases coming through the criminal justice system.”
The Orleans Public Defenders’ office fields a unit called the Conflict Division, which is charged with determining how multiple defendants charged on a single bill of information can be defended. Often the defendants are singled out and defended individually.
The indigent lawyers’ organization also funded a Conflict Panel, comprised of lawyers working as contractors for Orleans Public Defenders. Panel members took over representation of a co-defendant when conflicts arose among the rights and interests of others charged in the same case.
But the 10-person internal Conflict Division office was temporarily shuttered in early 2012, Quigley said. The money for outside contract lawyers dried up, and other Orleans Public Defenders’ attorneys were left holding the bag for the swelling number of indigent defendants entitled to legal representation.
Hunter took matters into his own hands late last summer.
Transcripts provided to The Lens show that he put lawyers from Orleans Parish Defenders’ under oath and forced them to cough up their caseload numbers. One said her caseload was 179.
Hunter then started un-assigning Orleans Parish Defenders lawyers from cases involving multiple defendants. He reached out to lawyers around the city to step into the breach he had created.
Hunter said he could not comment for this story. “This is active litigation,” he said. “It would be more appropriate for (Quigley) to answer your questions than for me to answer them.”
“Hunter’s concern is justice for the people,” Bunton said. “He’s seeing overburdened lawyers in an overburdened office, and defendants – some may be innocent, or they may be over-charged – and he wants them to be able to stand up to the forces of the government to give them a fair trial.”
“When [Hunter] started this process, as far as I know, he’d always appoint Bill Quigley, unappoint our office, and then Quigley would file a motion saying they didn’t have lawyers and he could only participate in a limited capacity,” Bunton said.
But, since Quigley wasn’t handling their criminal cases, some indigent defendants would go back to their cells confident only in the knowledge that their constitutional right to a defense lawyer was being looked after, even if they had no counsel in their criminal defense.
“The judge’s action left a lot of folks without lawyers,” Bunton said.
In an email to The Lens, Quigley said that before he was brought in, Hunter was able to find lawyers to handle several dozen cases involving co-defendants, but that he eventually “ran out of competent lawyers.”
With Quigley on board, Hunter has said he won’t allow prosecutions of un-defended indigents to go forward.
That news did not sit well with a District Attorney’s Office tasked with prosecuting alleged perpetrators. It filed writs of its own in state court arguing against Quigley’s move.
“It is ironic that they have counsel coming in to court, lawyers who are filing briefs on their behalf complaining that they aren’t being represented,” said Chris Bowman, an assistant district attorney and spokesman for District Attorney Leon Cannizzaro.”
The Conflict Division at Orleans Parish Defenders was reopened in August but with about half the staff it had previously fielded. Its fiscal year begins in July, and Bunton said the new fiscal year gave his organization a chance to re-up its co-defendant unit.
“We hit the wall in early 2012,” Bunton said. “At that point we couldn’t handle conflicts at all. We had a restart in July and slowly picked ourselves up from the ashes, but still with the understanding that, as cases were coming in, we’d run out of capacity – and that’s been the case.”
Contacting The Lens after initial publication of this article, Orleans Parish Defenders’ spokesperson Lindsey Hortenstine said the office today is keeping up with demand and that any indigent defendant who needs their services is getting them.
Today’s brief from Quigley follows on a prior writ filed with the state court by the Orleans Parish District Attorney’s office that rejected Gordon’s claims of indigence.
The district attorney also questioned the legality of Quigley’s “limited representation in this matter” and claims that Quigley didn’t have a consultation with Gordon, a prerequisite to assure that a client “will understand the dangers that may be inherent in contracting for limited legal services.”
The prosecutor’s office further argued that there was no evidence that Gordon qualified for the appointment of a public defender, or that a hearing was ever conducted to determine counsel for him.
“Accordingly, Mr. Quigley’s assertion that his client is being denied effective assistance of counsel is premature,” the district attorney’s office argued.
With Quigley’s brief rejecting Cannizzaro’s assertions, Bowman said his office’s next move would be to file writs of mandamus in state court to order Hunter to appoint counsel.
“It’s the judge’s responsibility to appoint counsel to defendants who can’t afford counsel,” he said.
Tom Gogola covers criminal justice for The Lens, where this story first appeared. A veteran journalist and editor who has written for Newsday, New York, The Nation, Maxim and more, Gogola was a 2011 winner of the Hillman Foundation Sidney Award. He can be reached at (504) 483-1812 and firstname.lastname@example.org, or follow him on Twitter @tgogolalensnola.