Public defender changes sought

    Actions attack Louisiana's system
    By MARK BALLARD

    5/23/04

    Capitol news bureau

    In a bid to dramatize the lack of funding for poor criminal defendants in Louisiana, the state Supreme Court has been asked to free an accused Baton Rouge serial killer and a pair of alleged Lake Charles baby-killers.

    Even proponents of revamping the indigent defense system don't believe the high court actually will free the accused killers.

    But they do want more money, arguing that the state spends too little for them to properly represent defendants who are too poor to pay for an attorney.

    Because the only constitutionally acceptable relief for a defendant with a bad lawyer is dismissal of the charges, proponents essentially are asking the high court to either pay up or release three people accused of heinous crimes.

    Those three cases are the furthest along of 50 actions attacking the way Louisiana funds local indigent defense systems.

    Another lawsuit, expected to be filed in June, could lead to the courts running the Louisiana's indigent defense in much the same way as federal judges once ran Baton Rouge schools and Louisiana prisons.

    All the lawsuits could upstage a study group charged by the Legislature with reviewing funding mechanisms other states use for supplying lawyers for poor people accused of crimes.

    The Louisiana Task Force on Indigent Defense Service's first meeting is scheduled June 7. The panel is supposed to finish a package of bills to present to lawmakers next year.

    Across the country, lawsuits have prompted states to take control of indigent defense from local jurisdictions, increase funding and pay public defenders as much as prosecutors.

    Now it's Louisiana's turn.

    Like elsewhere, the issue boils down to money. In Louisiana, each judicial district funds its local indigent defense -- primarily with court costs such as speeding tickets and drunken-driving fines.

    It's not enough, critics say.

    Louisiana "is one of the starkest examples of a state failing to provide the right to counsel," said David Carroll of the National Legal Aid and Defender Association in Washington, D.C.

    "It's going to always fail constitutional adequacy until it is properly funded," Carroll said.

    Supporters of greater funding for indigent defendants -- including the Louisiana Bar Association -- argue that Louisiana's reliance on court costs does not raise enough money to hire enough lawyers to handle the caseloads and to pay experts to test the government's evidence.

    Rapides rebellion

    On April 8, Johnny Bell was sentenced to life in prison.

    His lawyer, Rapides Parish public defender Bridgett Brown, complained that she had only 11 minutes to prepare for his murder trial because she had 472 clients.

    Brown said she did not have time to make the proper motions or conduct any investigation.

    The five public defenders in Alexandria began refusing additional cases. They said the system in Rapides Parish so lacks funding that no new lawyers can be hired, leaving caseloads so overwhelming that they can't properly represent their indigent clients.

    They argue that the legal profession's code of ethics forbids lawyers from doing shoddy work.

    District Judge George C. Metoyer could just order them to take the additional cases, but he said that wasn't fair.

    Or he could start releasing defendants because they lack effective counsel.

    "I'm not willing to do that," Metoyer said.

    So the 9th Judicial District judge pulled out the phone book and, from the bench, began calling lawyers, appointing them on the spot to handle defendants.

    "I started with the A's, and I'm going to work my way to the back until somebody tells me that's not proper," Metoyer said.

    "We've run into a real crisis that we just can't address on the local level. What we need to do is hire some more attorneys and pay them well, at least as much as the prosecutors are making," the judge said.

    Lack of money in Lake Charles

    Because funding is so tight, even a few costly cases can throw the system into crisis.

    Two high-profile trials left the Public Defender's Office in Lake Charles with a negative balance of $16,998 -- and six more capital murder cases to litigate.

    On the list are Adrian Citizen, who has been charged with killing a 1-year-old child in 1994, and Benjamin Tonguis, who has been accused of murdering an eight-day-old baby in 2001.

    District Judge Al Gray of the 14th Judicial District on April 27 ordered the Calcasieu Parish Police Jury to pony up $275,000 to pay defense lawyers and hire experts and investigators.

    Police jurors appealed Gray's ruling to the Louisiana Supreme Court. Both sides have been ordered to submit their arguments in writing by May 25.

    Lee defense takes the lead

    Nowhere else has the battle of economic parity between public defender and prosecutor been so clearly engaged as in the year-long struggle for additional funding to defend Derrick Todd Lee of St. Francisville.

    Police claim DNA evidence links Lee to the murders of six middle-class women in their homes between September 2001 and March 2003. Intense publicity attended the murders, the hunt and arrest. The cases brought sharp criticism of law enforcement from a frightened public.

    Michael Mitchell, the public defender in Baton Rouge, said such cases, in which the public pressures police to find a culprit, require special attention to the defense.

    When the defendant also is low-income, that highlights the inequities between the public defender and the district attorney.

    Mitchell's office has 27 lawyers making $18,000 to $35,000 a year. They earn roughly one-third less than what Moreau's 48 assistant district attorneys earn.

    Baton Rouge prosecutors have a budget three times larger than Mitchell's. Plus, prosecutors have free use of the State Police crime labs and the work of three law enforcement agencies.

    Baton Rouge public defenders handle about 4,500 felony cases, 6,000 lesser cases and about 1,000 juvenile crimes, Mitchell said. His office represents about 85 percent of everyone charged with a crime in East Baton Rouge Parish.

    "We must carefully evaluate and diligently question every piece of the government's evidence, in all cases, but particularly in cases like this," Mitchell said.

    Law enforcement is not infallible, Mitchell said.

    For instance, a New Orleans lawyer was hired to defend the latest accused Baton Rouge serial killer, Sean Gillis, because local public defenders had represented two men who earlier were accused of committing the same murders.

    "The government can make mistakes and has made mistakes," Mitchell said. When authorities arrested those two men, "they were absolutely sure they had the right guys."

    The $295-a-hour expert

    Lee's trial, which was to begin earlier this month, was postponed by the Louisiana Supreme Court to sort out funding issues.

    Mitchell seeks $800,000 from the state to pay for Lee's defense. He wants to hire 12 witnesses, including DNA experts, psychologists, psychiatrists, social workers and a neuropsychologist, according to opposing motions filed by District Attorney Doug Moreau of Baton Rouge.

    First Assistant District Attorney John Sinquefield, the lead 19th Judicial District prosecutor in the Lee case, noted that Mitchell wants Dr. Tony L. Strickland of Los Angeles as a neuropsychological expert. Strickland stated he needed 100 hours at $295 per hour to evaluate Lee, plus $4,600 a day to testify, plus expenses.

    "I can find a dozen neuropsychologists right here," said Sinquefield, pointing to the Baton Rouge phone book.

    "They need to be reasonable. I don't think they are entitled to a defense better than what the average middle-class working person could afford," Sinquefield said.

    Lawsuits challenge funding

    "No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel," said Stephen B. Bright of Atlanta in an e-mailed response to written questions.

    As head of the Southern Center for Human Rights, Bright spearheaded individual lawsuits in Georgia. His litigation led that state's Legislature May 12 to fund a reorganized indigent defense system.

    Nationwide, "There are very few (lawyer) ineffectiveness claims and virtually none that are successful in jurisdictions where there are public defender offices staffed by full-time public defenders with staff investigators and the resources needed for experts," said Bright, a national expert on legal issues for the poor.

    Georgia is one of 17 states that was nudged into revamping indigent defense during the past decade by lawsuits filed by defendants claiming their attorneys provided incompetent counsel because of lack of funding.

    Meanwhile, large law firms have been putting together sweeping challenges that claim a state fails its duty to provide counsel when it does not take control of, and fully fund, indigent defense programs.

    A systemic challenge led Connecticut to dramatically increase funding. Similar lawsuits are pending in Mississippi, Michigan, Montana and New York. Another is being prepared for Virginia.

    Two firms, based in Washington, D.C, and Houston, have been interviewing lawyers, judges and defendants in Louisiana, said Walter Sanchez, a Lake Charles lawyer helping the out-of-state firms.

    "Systemic litigation is used to prod the process along," said Catherine Bean, counsel for the National Association of Criminal Defense Lawyers in Washington, D.C.

    "It really spotlights the problems," Bean said.

    "I don't know if it's political cover as much as it is the threat of the court coming in and ordering them to do this or do that, that gets legislatures to do what they need to do," she said.


National Association of Criminal Defense Lawyers (NACDL)
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