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Defenseless

Saddled with huge caseloads and low budgets, public defenders often have to give their clients -- the city's poorest citizens -- legal representation on the fly. It's just one part of a broken system.

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Seventy percent of the people arrested on state or local charges in Orleans Parish are initially represented by Meghan Garvey, one of two public defenders assigned to Magistrate Court, the first stop in the local criminal justice system.

The magistrate courtroom inside the House of Detention, or HOD, used to be the site of suspect lineups. A white backdrop showing measurements up to 6 feet still frames the judge's bench. The walls are painted a pistachio green; the floors are pockmarked.

On either side of the room, dirty lines reminiscent of watermarks smudge the walls. On one side, the marks have an orange tinge from countless jumpsuited detainees clad in telltale "CCC orange" prison garb, many of them forced to stand or lean against the walls for hours as they wait their turns in front of the magistrate. On the other side of the room, the khaki green discoloration shows where the guards have done the same.

Eventually, 20-odd detainees, most of them African American, shuffle in, shackled to each other in their orange uniforms. Once in place, they wait.

Garvey, wearing a tailored suit and high heels, her blond hair held back by large sunglasses, looks and sounds as though she grew up on the West Coast, although she actually hails from Indiana.

Garvey and her assistant, Josie Beets, a law student from Brooklyn, address the defendants: "I don't have very much time, so I'm going to ask you for the name and phone number of someone we can contact to post your bail." Most of the prisoners want to discuss their cases. Often, Garvey and Beets forego all but the most basic conversations as they keep an eye on the clock.

Magistrate Judge Gerard Hansen enters. "Five more minutes," he says. Garvey and Beets scramble to talk to each defendant. Snippets of Garvey's conversations can be heard over the din: "Ma'am, ma'am," she says to one female detainee. "You need to calm down. If the judge sees you like this it's not going to help your case."

The woman is distraught. "I didn't do nothing," she wails, oblivious to Garvey's pats on the shoulder. Her hair is in a ponytail, the skin underneath her eyes puffy and discolored. She seems angry at the young lawyer, at everyone. Garvey isn't offended. "If I were in jail, I'd be crying too," she says later.

Other times, Garvey is terse, trying to ensure that she gets the chance to speak to each defendant before her time is up. "Believe me, I understand. It's not my system. It's absurd, but that's how it works," she says to a man before moving on to her next client.

A year ago, Garvey would never have expected to find herself where she is now. After receiving an undergraduate degree in English, she worked in a group home, where she became interested in law after hearing horror stories from mentally ill and drug-addicted residents about their experiences with police. She was shocked by the way minor offenses were zealously prosecuted.

Arriving in New Orleans four years ago to begin Tulane Law School, Garvey read articles about problems in Municipal Court and became intent on trying to prevent mentally ill and drug-addicted people from entering the cycle of arrests that often begins with a minor offense such as "obstruction of a public passage."

"It made me want to take them out of the criminal justice system and put them in the mental health system," says Garvey, who has been practicing law less than one year.

THE GOOD NEWS IS THAT HURRICANE KAtrina couldn't break a system that was already broken.

In a landmark 1992 case known as State v. Peart, public defender Rick Teissier declared himself unable to provide adequate assistance to his client, Leonard Peart. A trial judge agreed and held that the state law governing New Orleans' public defender system was unconstitutional because it did not provide adequate funding. The Louisiana Supreme Court later reversed the trial court's holding that the entire system was unconstitutional, but the justices agreed that it was inadequate to meet its indigent clients' needs.

Within two years, Louisiana increased funding for indigent defense by $5 million. But funding eventually failed to keep up with inflation and mounting caseloads. According to the Harvard Law Review, the Peart case "failed to provide a long-term cure for the system's ills because it did not address the more fundamental financing and structural issues underlying the problem."

Like a dog chasing its tail, the current system has a paradoxical effect, creating a financial drain on all of the money it brings in. Indigent defense in Louisiana is financed by assessing fees on traffic violations under the assumption that those cases deal with offenders who can most afford to pay costs and fees. Louisiana is the only state that attempts to finance indigent defense this way, however.

With this system of financing, there is no correlation between need and funding. If police are occupied with writing tickets to generate revenue, it takes away from the time that they could be fighting violent crime.

Moreover, Louisiana prosecutors consistently outspend their indigent defense counterparts. In 2003, the most recent year for which figures are available, the New Orleans District Attorney's office spent five times the budget of the Orleans Indigent Defender Board, or OIDB. That ratio that does not take into account the investigative resources provided to prosecutors by police, sheriffs, or the FBI -- but which the indigent defense system must pay for.

Despite those budgetary inequities, the Orleans Parish DA's conviction rate in 2004 for violent crimes was a mere 54 percent -- a clear signal that the entire system is broken.

Fourteen years after the 1992 Peart decision, OIDB is beginning to address its financial and structural issues again. Nine new members of its board of directors (all previous directors resigned after Katrina) appear intent on overhauling the entire program -- which could help improve the entire criminal justice system.

In June, Garvey was named coordinator of the First Appearance Project, which aims to give clients "vertical representation," or the same attorney from a defendant's first appearance onward. A novel idea hereabouts, vertical representation is essentially an industry standard and common practice in most states. In New Orleans, financial constraints have forced the OIDB to appoint lawyers to courtrooms rather than clients.

As the first attorney many defendants encounter after arrest, Garvey's job is to interview clients at their first appearance, a hearing that is constitutionally mandated to occur within 48 hours of arrest. In New Orleans, first appearances are combined with bond hearings, which must occur within 72 hours of arrest.

During the initial interview, Garvey seeks information that could affect a client's case, as happened with a man accused of aggravated battery and negligent injury. As it turns out, the man was suffering from a gunshot wound while his alleged victim sustained no physical injuries.

As coordinator of the First Appearance Project, Garvey assigns cases to volunteer lawyers who then begin the vertical representation of defendants. Many of the volunteer lawyers, however, are already burdened with their own casework and cannot yet begin representation -- leaving Garvey as the sole attorney for hundreds of defendants at the most critical juncture of their cases. After consulting initially with Garvey, the defendants will get new lawyers based on which sections of Criminal District Court their cases are assigned.

Despite the huge caseload, Garvey and Beets have made considerable progress. Prior to the storm, not even the "gist" (a police statement about the arrest) was available to defense attorneys at the first appearance; a folder on the client was not created until the charge was accepted; and the defendant sat in jail with no contact or representation during the critical "screening period."

During the screening period, the DA's office investigates the case and waits for a formal police report before deciding whether to accept or refuse charges filed by arresting officers -- or prosecute an arrestee on other, related charges. Defendants who cannot afford to post bond may be held in jail up to 45 days for a misdemeanor and up to 60 days for a felony during this period.

Right now, the screening division is operating with half its previous staff, says George Bourgeois, the DA's chief of screening. Various factors can affect the time it takes prosecutors to decide whether to take a case. Inevitably, screeners have to wait for police reports. "Some come in quick, some come in not so quick," says Bourgeois. Other factors include availability and credibility of witnesses and physical evidence. Earlier this summer, a fire at 2601 Tulane Ave. destroyed NOPD's state-of-the-art crime lab, adding yet another factor.

The screening period also is critical for the indigent defender's office because it presents the best opportunity for interviewing witnesses, photographing crime scenes and generally investigating cases.

In street parlance, the 45 to 60 days of jail time for those who cannot post bond is known as "doing DA time." Although the time served is considered administrative, not punitive, it often has a deleterious effect on an arrestee's life. Thrust into an environment that may pose a threat to his physical safety, the typical arrestee risks losing his job, home and/or custody of his children.

Investigating cases during the screening period can decrease the amount of time an innocent person has to spend in jail doing "DA time" -- not to mention the money taxpayers shell out financing that stay.

An early investigation also can unearth evidence that will help persuade the DA's office either to refuse a case or reduce charges as part of a plea agreement. Kevin Christensen, a local attorney who has taken on 20 pro-bono cases in an effort to help decrease OIDB's backlog, says two of the 12 first-appearance cases he is defending have already been refused by the DA's office. "Sometimes the fact patterns in the case are so unbelievable even the DA sees the weaknesses," says Christensen. In those cases, Christensen's clients have been freed. Otherwise, they could have sat in jail for up to two months. Meanwhile, prosecutors and defense attorneys can focus on cases they can win.

"The DA has an unprecedented amount of time to hold someone for screening before deciding," says Pamela Metzger, director of Tulane's Criminal Law Clinic and one of the new OIDB board members. "The period of incarceration has created a public safety issue that didn't exist before."

LOUISIANA HAS THE HIGHEST PER CAPITA rate of incarceration in the country -- and one of the highest crime rates. The high incarceration rate is expensive in both economic and psychological terms. "We, the taxpayers, are paying for those people in jail. We could be using that money to pay for more police," says Katherine Mattes, deputy director of the Tulane Criminal Law Clinic.

But the most serious consequence of "DA time" is the physical and psychological danger inflicted on innocent people -- and those guilty of minor or petty crimes who spend up to two months in an overcrowded criminal community.

"I just want someone to explain to me how the state has more interest in returning someone to court for having a joint than an individual has in his own safety," says Garvey, explaining that the majority of people currently being detained are charged with simple possession -- using, not selling, drugs.

Garvey also realizes that while her clients have a lot at stake, other public defenders, such as those representing felony cases, have even more to lose. "Public defenders with trials coming up can't do what they need to do," she says. "Without enough investigators or paralegals to help them, those clients go off to Angola for good."

In this system "people are guilty until proven innocent," says Christensen. In addition to taking on first-appearance cases, he also is defending eight other cases. One of his other clients, a co-defendant in a murder case, has already been incarcerated for a year, yet his case is "not even close to trial." Because that client was recently moved to Angola State Penitentiary due to overcrowding in the local jail, Christensen has virtually no contact with him; his client was not brought in for his last court appearance. Christensen believes that his client, in addition to being young and poor, is mentally retarded.

"Poor people being knocked around the state" is one of the main problems the OIDB is trying to resolve. It is an old problem.

"EASY TO GET IN, HARD TO GET OUT," says Cynthia, describing the local criminal justice system. Cynthia's son is accused of simple possession of marijuana. Her blond hair styled into a flip-do, she is waiting for the afternoon session of Magistrate Court to begin. Her son and four other young men were allegedly apprehended in a car with a joint.

Because he is employed in Atlanta, the young man has a long commute for court appearances, but Cynthia will make sure he continues. Today he is here for his arraignment, when the DA announces whether the charge has been accepted and the defendant formally enters a plea. Like most narcotics cases, his is accepted. Narcotics charges are much easier to prosecute than violent crimes because police are professional witnesses; the DA's conviction rate in 2004 was 82 percent for drug cases.

Cynthia's son pleads not guilty, although he could have pled guilty and sped up the process by just paying a fine. Cynthia knows the danger of having a record.

Keith Hurtt, a veteran public defender, says that over the years, many of his clients who couldn't afford bail have pled guilty and were sentenced to time served, even if he told them they had a good chance of winning the case, because they just wanted out.

HOD has never had air-conditioning or heat. A man waiting for a ride outside the jail describes the conditions inside. "It's just shit," he says. "All type of shit growing in there. You might get a rash from sitting on the ground."

Juan O'Bear, who works two jobs as a nurse at East Jefferson General Hospital and Ochsner Health System, was arrested in the French Quarter last month on a warrant for a traffic ticket he never paid. The crowded holding cells housed 45 to 48 people each. There was spilled water from a cooler all over the floor, but people sat anywhere they could find, whether on benches or the floor. He says he was in the holding cell with lots of "everyday people," including a taxi driver. He also was in the same cell as the suspects from the recent Algiers shooting.

"How we treat the poorest among us speaks about how truly we hold the values enshrined in the Constitution," says Ronald Sullivan, the newly appointed chief counsel for OIDB.

ON A FRIDAY AFTERNOON IN AUGUST, Garvey finds that several of her clients have not been brought down from jail for their first appearances.

"They messed up all the computers," a young deputy says to Garvey. "These people aren't going to make it because the paperwork is wrong and they're not getting brought down."

Just last week, Garvey filed a petition to have eight prisoners released. They had been in jail almost two weeks without ever appearing in court -- a violation of the constitutionally mandated 72-hour rule.

If a person doesn't appear in court when he's scheduled to appear, Garvey has the option to waive his presence, the most common route, because it assures that her client's bail will be set. For someone arrested on a narcotics charge, such as possession of marijuana, it will cost 13 percent of the $500 bail bond, or $65, to get out of jail, a negligible amount.

ALTHOUGH IT SEEMS TO HAVE BEEN A common practice before the storm, waiving her client's constitutional right to counsel is impossible because Garvey must be instructed by clients to do so. Waiving a client's presence without meeting him may also mean that she is missing important facts in the case. Earlier this summer, a defendant who was not brought to court was charged with assaulting a police officer. Then she met him in jail and discovered that he had one leg and was in a wheel chair.

Garvey also knows that if she doesn't waive his presence she will delay her client's release from jail.

Her dilemma is slowing down the court proceedings, which aggravates Magistrate Commissioner Marie Bookman. As each absent client's name is called, Garvey makes a pained expression. The commissioner asks if she wants to waive his presence.

"Out of an abundance of caution, Your Honor ... ," Garvey begins.

"Yes or no," asks the judge. "I don't need a speech right now."

"I'm waiving his presence because I don't have a choice," says Garvey, deciding it is in her client's best interest to get out of jail as soon as possible.

By the fourth absent defendant, the commissioner no longer offers Garvey an option, refusing to set a bond for any of the defendants not present, saying she will have them brought down for their first appearance the following day. "We're going to be here until 4:30 today," says Bookman.

Bookman asks Sullivan, the new OIDB chief counsel who has been in court observing, what he thinks about the situation.

"It strikes me that the lawyer is in an almost impossible ethical situation," he responds.

Bookman says she is trying to clear her docket to make room for other cases and thinks it's "foolish" to worry about a defendant being present "for the limited purpose of having a bond set."

Sullivan responds that it's for a Sixth Amendment constitutional purpose of right to counsel. "I'm not inclined to have my lawyers stand here and be window dressing," he says to Bookman.

Sullivan, who always wears a bowtie and glasses, is taking time away from his position as Yale professor of law to advise the indigent defender board. He also is a former director of the model Washington, D.C., indigent defense office. He is aghast at what he sees during first appearances in HOD. "I've never seen anything like this," he says later. "No privacy, no meaningful attorney-client relationship."

According to Garvey, who attended Tulane University because of her love for New Orleans, working in the criminal justice system sometimes makes her disgusted with the city. Inside the criminal justice system, she says, a legacy of double standards reigns. Constitutional protections are guaranteed only to those who can afford a lawyer. "It's the culmination of what happens when rules are only for other people," says Garvey.

In the early days of summer, some prisoners were brought to court without shoes and left standing for hours while they waited in 120-degree heat to see a judge. "It makes our city look like a joke," says Garvey.

Before coming to New Orleans, Beets was studying overseas. She says that China, where people have no right to counsel or to a hearing, reminded her of New Orleans. The difference here is that "people have a right to it; they're just not getting it," says Beets.

Garvey says many people employed in the criminal justice system seem unfazed by the lack of constitutional rights. They are accustomed to the laissez-faire legacy, which includes a lack of legal representation on many occasions.

"I don't consider myself to be a major rabble-rouser kind of person, but all anyone ever does is tell you to "calm down" and "take it easy," says Garvey.

"Meg is trying to change decades of a system overnight, to change a system that was not in constitutional compliance to one that is," says Mattes, who is one of Garvey's former professors.

Meanwhile, the OIDB is making big internal changes. Previously, the program operated on a system of flat-fee contracts with part-time employees, a system that often ran counter to the best interests of clients. Having private cases that generate hourly fees as well as working for indigent clients for a flat fee can become a disincentive for public defense work.

To remedy that situation, the OIDB's new board recently voted to create a full-time indigent defender office, guaranteeing that its clients are the first priority of every public defender. The board also voted to raise the pay scale, which now begins at $40,000 instead of $30,000 and can go up to $80,000 a year.

"What I will not let happen is that you guys become over-budgeted by cases so much that you can't protect anybody," Sullivan told public defenders attending a recent board meeting. "I'm going to protect lawyers working in this system."

Public defenders, who represent most people arrested in Orleans Parish, have an obligation to represent everyone assigned to them to the best of their abilities -- but larger caseloads decrease a lawyer's effectiveness in any given case.

BACK IN BOOKMAN'S COURT, A YOUNG deputy takes it upon himself to go search out Garvey's missing clients and bring them to court. Garvey is grateful for the help. Since mid-August, when Magistrate Judge Hansen met with Sheriff Marlin Gusman to discuss the problem, fewer defendants have been absent for their first appearances, though it remains a problem -- "especially for hearings," says Garvey.

Renee Lapeyrolerie, a spokesperson for the sheriff's office, says, "In the last 30 days, over 1,200 inmates were brought to Magistrate Court for first appearances. Considering the volume, any missed appearances were certainly the exception and not the rule."

While Metzger and others applaud the cooperation from the sheriff's office and the judges in helping to clear up the backlog since the storm, lawyers in the trenches are still frustrated.

Garvey believes judges and law enforcement officials who took an oath to uphold the law are no less subject to its strictures than her clients. "The law applies to looters and the criminal justice system alike," she says.

A defendant with thin blond hair who was wearing a gold crucifix waited eight days in jail before he saw a judge. They just "blame it on down the line," he says, asking that his name not be used. "The judge blames it on the sheriff. If it's not his fault whose is it?"

On most days, Garvey works in Hansen's courtroom under the old system of assigning public defenders to particular sections of court. While Hansen and Garvey seem to have a rapport, being assigned to one courtroom can make a public defender hesitant to raise objections. That's not a problem for Garvey.

Hansen is enthusiastic about the First Appearance Project, calling it "a big step ahead." Even so, he predicts that Garvey ultimately will be disappointed. "She's going to be very frustrated because she's very idealistic," he says.

Garvey has a different take on her idealism. "It's a matter of pride in my city," she says. "I don't want to live in a place where the Constitution doesn't apply."

Magistrate Judge Gerard Hansen is enthusiastic about the - First Appearance Project, but predicts Garvey ultimately - will be disappointed as the realities of the system - overwhelm her idealism about how the justice system - should work for indigent defendants. - TRACIE MORRIS SCHAEFER
  • Tracie Morris Schaefer
  • Magistrate Judge Gerard Hansen is enthusiastic about the First Appearance Project, but predicts Garvey ultimately will be disappointed as the realities of the system overwhelm her idealism about how the justice system should work for indigent defendants.
Attorney Meghan Garvey, coordinator of the First - Appearance Project, splits her time between Criminal - District Court at Tulane Avenue and Broad Street to the - House of Detention, where she meets her indigent - defendants in need of legal counsel. - TRACIE MORRIS SCHAEFER
  • Tracie Morris Schaefer
  • Attorney Meghan Garvey, coordinator of the First Appearance Project, splits her time between Criminal District Court at Tulane Avenue and Broad Street to the House of Detention, where she meets her indigent defendants in need of legal counsel.

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