Chasing Gideon (18 page)

His story, which should be ancient history, is not.

Reforms have radically improved the quality of representation in the public defender's office in the last six years, but the problems are entrenched.

Many of the city's systemic issues that kept him locked away for so long persist today. Greg fought a host of them: inadequate funding for public defense; a casual disregard for the letter of the law when it comes to sharing exculpatory information; unchecked prosecutorial misconduct; regular refusals to provide the poor with legal help for appeals; misaligned financial incentives for public defenders, prosecutors, and the sheriff; an insular judicial culture and oldboy network of cops, lawyers, and judges; and maybe even a racist presumption of guilt.

As Greg Bright sat in jail at Tulane and Broad that first day in November of 1975, he knew he faced a lot of trouble. “The way things was going, I knew nothing good was going to come out of this,” he said. He is prone to understatement.

When Greg had his day in court in 1976—and indeed all the way up until 2007, despite the U.S. Supreme Court's 1963 ruling in
Gideon v. Wainwright
—legal representation for the poor in New Orleans was a shaky prospect. In the years before Katrina hit, there was no statewide public defender system in Louisiana. The sixty-four parishes were divided into forty-one judicial districts, and in each of these districts the local judges appointed an indigent defense board to operate an indigent defense system. In systems cobbled together ad hoc over the years, some districts had an assigned counsel, where judges appointed local attorneys as needed (as say, Atticus Finch was in
To Kill a Mockingbird
), some had a contract system where the local board would contract with individual lawyers or firms to handle all their indigent defense cases, and some had a public defender's office. The quality of defense clients received was wildly divergent across the state. The districts had only one thing
in common: the local judges were ultimately in charge of public defenders, even if it was at the narrow one-step remove of appointing the public defender board, typically their chums.

In the case of Orleans Parish, the local bar association was supposed to recommend lawyers for the indigent defense board. “But mostly judges appointed private criminal defense lawyers who were prominent and good friends with the judges,” says Steve Singer, assistant clinical professor at Loyola University New Orleans School of Law and supervisor of the criminal law clinic there. Further complicating this patronage was a system in which public defenders were assigned to a particular judge and courtroom. Judges casually referred to these lawyers possessively as “my public defender” and the linguistic lapse was telling: public defenders knew who their boss really was and knew they had to keep the judge happy. Sometimes, this led to horse trading. If a cranky judge was likely to grant only one or two favors a day, which client would the public defenders appeal for? Who would get sold down the river? Because these same public defenders were also representing private, paying clients for half the day, those clients were often the recipients of the lawyers' extra efforts.

For poor clients, the public defender was paid the same whether he or she spent two hours or two days on a case. Obviously, this was not true with the hourly-billed paying clients. The financial incentives, then, pushed the lawyer to spend as little time as possible on the public defense cases and as much as possible on private cases. (Also, private clients accrue via word-of-mouth, so a client's sense that she or he was well-served mattered tremendously; indigent clients were randomly assigned and, given the seemingly endless supply of arrests in the city, new cases cropped up as quickly as old ones were disposed of.) Public defenders were paid in the low to mid-$30,000s in 2004 to 2006. The less time spent on public defender cases, the fewer motions filed, the more guilty pleas encouraged, the fewer cases taken to trial, the more time a public defender saved to spend on paying clients. “You don't have to be a bad person or a bad lawyer [to operate this way],” says Singer, insisting that the pre-Katrina public defender's office contained both good and bad attorneys. “But either way, the system they were stuck in made it bad.”

Those who loved the setup were the judges. Having your very own public defender in your courtroom all the time meant she or he was always at your disposal. It was an efficient system, because judges could move briskly through the business of the day, processing pleas and clearing their dockets. They never had to wait or rearrange or reschedule things because the public defender on the case was dealing with a different client in someone else's courtroom. The conflict of interest here was obvious, but the judges, who controlled the courts, were disinclined to change things. “Who it didn't work for were the clients,” Singer says.

Even on the most mundane, practical level it was a mess. The thirty to thirty-five part-time public defenders didn't have their own office space but used a basement room in the courthouse at the pleasure of the judges. They had cubbies but no rooms with doors for confidential meetings with clients. They had one copy machine and one phone line. They had no voice mail. They had no case management system more sophisticated than index cards in a recipe box. They had four computers, two with dial-up Internet access. Together they averaged twenty-eight thousand clients annually.
¹⁰

All this was problematic, but by far the most troubling aspect of the criminal justice system here was the fact that, after being arrested, a poor person could sit in jail for up to 45 days on a misdemeanor, 60 days on a felony, or 120 days on a murder without any contact with an attorney while the Orleans Parish district attorney decided whether or not to prosecute the case. Pamela Metzger, an associate professor at Tulane University School of Law, describes this Kafkaesque scenario most eloquently in a 2007
Tulane Law Review
article: “If one takes the Miranda warnings literally, one expects that upon arrest a poor person can request the appointment of counsel and that an appointed lawyer will thereafter be provided,” Metzger writes. “True, after hearing the police intone ‘you have the right to an attorney, if you cannot afford one, one will be appointed to represent you,' an arrestee might rightly invoke his right to counsel and then look wonderingly about the jail as the police explain, ‘you have to see a judge to get an attorney appointed.'” Metzger then goes on to describe how our hypothetical arrestee experiences justice, Louisiana-style:

Metzger contends that the “extraordinary length of the Louisiana screen period converts an otherwise appropriate administrative charging function into an illicit system of plea extortions and punishment without trial.” Even if the person is never charged, the damage is often done. “Louisiana's mind-boggling sixty-day screening period means that the old criminal justice maxim, ‘you can beat the rap, but you can't beat the ride,' is truer in Louisiana than elsewhere,” she says.
¹²

Norris Henderson, founder and director of Voice of the Ex-Offender (VOTE) and a board member of the reentry program Resurrection After Exoneration, both New Orleans–based advocacy and service organizations for ex-offenders, elaborates on the
impact this has. “What's happening to that person sitting in jail for sixty days before, say, the prosecutor drops the charge?” he asks, then answers: “The damage is done.” The accused person may not have a record, but by the time he is released on day fifty-nine, he likely lost his job, lost his apartment because he couldn't make rent, lost his slot in a drug-rehab program, lost his car when it was repossessed, and had his kids taken by child welfare if he had custody or, if not, would quickly find himself back before a judge for lapsed child support payments.

If the DA
does
decide to pursue prosecution and files a Bill of Information, basically an official charging document, the defendant has now lost several months languishing in jail without an attorney to investigate his case. Alibi witnesses have forgotten whether or not they were with the defendant that Wednesday night three months ago when the crime took place. Tread marks on the road have disappeared. Blood fades from the carpet. Glasses with potentially useful DNA get washed. Receipts—proof of purchase—get tossed. Time frames and markers—“I distinctly remember I was watching
The Colbert Report
, so it had to be around 11:30
P.M.
”—fade from memory.

And in Orleans Parish, when the defendant is finally appointed a lawyer after 45, 60, or 120 days in jail, the lawyer is likely to be handling that case along with six hundred other cases.

Things came to a head in 1993, when a public defender named Richard Teissier was struggling with a crushing caseload in Section E of Criminal District Court.
¹³
In addition to his slew of other clients, Teissier was readying a serious case for trial, representing an indigent client named Leonard Peart. Peart was charged with armed robbery, aggravated rape, aggravated burglary, attempted armed robbery, and first-degree murder. Teissier didn't see how he could provide effective representation for Peart in addition to his other clients. He filed a Motion for Relief to Provide Constitutionally Mandated Protection and Resources and Section E's Judge Calvin Johnson held several hearings. He discovered that Teissier, a part-time employee, had seventy active felony cases, had clients who were typically in jail one to two months before he met with them, had little access to an investigator, had a trial on every available trial
date, and had, for an eight-month period the year before, 418 clients, 130 of whom entered guilty pleas at arraignment.

Change was in the air in the country. Many state legislatures were hearing about the crisis in indigent defense and beginning to look at restructuring services and refunding programs. New Mexico, Missouri, and Kentucky radically boosted funding in 1989, while Georgia and Tennessee created statewide public defender boards. Public defenders had begun clamoring for reforms. Sometimes, people listened. In New Orleans, Judge Johnson was one of them. He agreed that this was unconstitutional and ordered Teissier's caseload—which by then had swelled to 785—reduced. In the short term, he did this by appointing members of the local bar to represent indigent clients in his courtroom. Long term, he ordered—or tried to order—the legislature to fund the city's public defender office adequately. The state appealed the ruling. While the defendant Peart was tried and acquitted of armed robbery and murder, Judge Johnson's ruling that the legislature adequately fund public defense traveled to the Louisiana Supreme Court. Not surprisingly, the court found that indeed the kind of lawyering going on in Section E—assembly-line style—was not up to constitutional snuff.

This was a victory. Sort of. But the judges also side-stepped the issue, saying: “We decline at this time to undertake these more intrusive and specific measures because this Court should not lightly tread in the affairs of other branches of government and because the legislature ought to assess such measures in the first instance.” In essence, the court said whether or not individual clients appearing in the future in Section E are getting adequate counsel should be decided on a case-by-case basis. One dissenting judge thought the decision, narrowly applying to only one out of twelve courtrooms in Louisiana's Criminal District Court, was absurd given the systemwide problems, insisting this was like “saying that a person in early term is ‘only a little bit pregnant.'” The remedy did not begin to address the “systemic constitutional deficiencies” in the state realistically. He blasted his colleagues for offering up Section E as a “lamb for burnt offering,” and insisted they were delusional, “hoping that an all-knowing, benevolent deity will miraculously cure the ills of the indigent defense system in that section and elsewhere.”

The benevolent deity passed them by, but a malevolent one intervened. “How do you break up that kind of system?” Singer asks, shaking his head as he maps out the long, troubled history of indigent defense in New Orleans. Then he answers his own question: “You have a hurricane.”

What did indigent defense in the city look like in those pre-Katrina days? Greg Bright was learning, firsthand, the answer to that question.