OPP consent decree fairness hearing day 4: Closing arguments



A fairness hearing to determine the need and appropriateness of the proposed consent decree for Orleans Parish Prison concluded this afternoon. U.S. District Court Judge Lance Africk did not issue a ruling but did indicate that he is concerned for the welfare of prisoners.

"It's clear from the testimony I've heard that people are at risk in the jail," Africk said. “You can say they committed a crime, they’re in jail, but it's different when you get the constitution involved ... And it’s different when it’s your family member, when it’s your mother, your father.”

He said that if he finds that something needs to be done, it will be done sooner rather than later.

"I'm not going to wait for the new jail to open to do it," he said, responding to arguments from city government that many of the problems at OPP will likely be ameliorated by a new housing facility currently under construction and set to open in early 2014.

While he considers the case, Africk encouraged the city and Sheriff Marlin Gusman to work together to better the jail, "although I understand it’s become very bitter between the city and the sheriff," he added.

(Summaries of closing arguments after the jump)

In her closing arguments on behalf of the plaintiffs, Southern Poverty Law Center attorney Katie Schwartzmann said while funding may still be a question, the need for a consent decree can't be argued in testimony this week.

“We can’t lose sight of what this jail means for real people," she said, mentioning inmate Terry Smith, an elderly inmate who was attacked in 2012. His assailant, an OPP inmate who had five previous violent incidents, left Smith unable to speak or walk, Schwartzmann said.

"And that’s a result of the sheriff’s office failing to protect him," she aid.

Schwartzmann said the city's arguments against the consent decree were contradictory.

“On the one hand it argues that the consent decree doesn’t go far enough and that receivership would be appropriate," she said. “On the other hand the city argues that the consent decree goes too far and is not narrowly tailored to OPP’s needs.”

The city “has not advanced one piece of evidence” suggesting that the jail is constitutionally compliant.

"Neither the plaintiff class nor the Southern Poverty Law Center has provided the court with the evidence that is needed. And the sheriff, he is mute. He’s said nothing. He signed his name," said Harry Rosenberg, arguing on the city's behalf. “The proof is simply wanting. I know we’ve heard a lot of rough stories and anecdotes from inmates and experts who’ve interviewed some inmates, but the proof is wanting for such an expansive consent decree.”

Rosenberg pointed to the fact that Gusman denied every allegation the plaintiffs presented.

“Sheriff Gusman categorically denies and disputes the allegations made by the Department of Justice and the allegations made by Southern Poverty," he said. “The fact is judge, is that his testimony is diametrically opposed to what is in the consent decree.”

Meanwhile, he said, the city plans to file a formal motion to appoint a federal receiver to take over the jail. He acknowledged the "slight inconsistency" in its arguments but said that the real issue is Gusman's ability to manage.

“We respectfully submit, and he’s a friend of mine so it pains me to say, that Sheriff Gusman has not demonstrated proper leadership in running Orleans Parish Prison. Period," he said. “If the city has to contribute more money to Orleans Parish Prison, then skills and savvy, not incompetence and ineptitude, should be the order of the day.”

Africk says video evidence — showing inmates taking drugs and brandishing a gun in OPP — prove that lack of leadership.

“So between the testimony of the sheriff and the testimony of the experts, the city’s position is it’s siding with the experts," Africk said.

“I think that is regrettably true your honor,” Rosenberg said.

The city is objecting to the consent decree because of its estimated costs. But, Africk said, costs have not been determined, and will not be for months. Two more hearings — on the sheriff's budget and funding for improvements — have been set for May and July.

“Let me tell you, if the sheriff isn’t spending his money properly or funding can be better allocated, the city may not have to pay another penny," Africk said, to which Rosenberg responded, “From you lips to the lord’s ears, your honor."

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