Early last year, Louisiana prosecutors accused and a grand jury indicted local resident Darrian Franklin of second-degree murder after 35-year-old Trenton Gary was shot five times and left to die on the side of Behrman Highway.
In the coming months, Franklin may be released from Orleans Parish Prison. But it’s not because a jury has found him to be innocent of the crime.
Rather, it’s the symptom of what Orleans Public Defender Derwyn Bunton has called a “constitutional crisis” for lawyers representing those too poor to afford private attorneys.
Citing funding shortfalls, the local public defender’s office in January stopped taking complex cases. As a result, Franklin and six other inmates accused of rape, armed robbery and other serious crimes sat for up to four months in jail without seeing a lawyer. In April, Criminal District Court Judge Arthur Hunter demanded their prosecution halt, and a higher court is considering their release.
Franklin’s is one of more than 340 cases that have been refused so far this year in New Orleans. The problem extends statewide, as 33 out of 42 public defenders offices in Louisiana are refusing cases or placing clients on waitlists. Thousands are now sitting in jail, with no foreseeable legal assistance.
As the legal drama comes to a head, the indigent clients, defense lawyers, local judges and legislators all have been in the spotlight, many opining on how best to handle defenders’ dwindling fiscal resources amid the state’s $600 million budget gap.
But there’s another group — one that local defense attorneys and a member of the national Sixth Amendment Center says is adversarial — that has been outspoken about exactly what public defenders should do with their money: the Louisiana District Attorney's Association
33 out of 42 public defenders offices in Louisiana are refusing cases or placing clients on waitlists.
E. Pete Adams, the association’s executive director, has joined other prosecutors in lobbying members of the Louisiana Legislature to pass House Bill 1137
, a measure sponsored by state Rep. Sherman Mack, R-Albany, that would reduce the size of the Louisiana Public Defender Board
and force it to allocate more money to local offices.
That’s because the defender budget crisis, he said, is a ploy by the state board to get money that isn’t actually needed — therefore, better controlling the board would alleviate the backlog of unrepresented clients.
“We have been suspect for some time about the size and validity of alleged crisis in public defender fund,” Adams told Gambit
. “Our interest in this is clearly that the board appears to be manipulating funding to cause a restriction of services at a local level.”
Some, including defense attorneys, have challenged this statement, and the motive behind it. Among questions being asked by defense attorneys and legal experts: Why are Louisiana’s district attorneys allowed to be so involved in public defense funding in the first place?
John Burkhart, campaign manager for the Louisiana Campaign for Equal Justice, is among those raising eyebrows. His organization’s stated goal is creating a stable, reliable and adequate system of funding for public defense in Louisiana.
Burkhart joins public defense attorneys in pointing to a Louisiana statute amended in 2008
, which requires that the state’s public defense system remain “free from undue political and judicial interference and free of conflicts of interests.” According to him, prosecutorial involvement in legislative discussion over defense funding creates a situation that’s ripe for that very kind of clash.
“You don’t see very many agencies testifying as to the fiscal needs of different agencies, so it’s certainly unique in that respect,” Burkhart said. “The public defense and district attorneys have adversarial roles in the courtroom. Taking that at large, there’s certainly potential of appearance of conflict of interest.”
“Prosecutors will forever try to make sure public defenders bring knives to gunfights,” says Orleans Public Defender Derwyn Bunton. “It is in their interest to do so.”
Today’s funding controversy, and the potential conflict between Louisiana’s district attorneys and the public defenders, has been going on for more than a decade.
When the levees broke in New Orleans in 2005, following Hurricane Katrina, there were nearly 5,000 local indigent detainees who needed evacuation. The Southern Center for Human Rights conducted an investigation about their status afterward, and discovered the vast majority of the defendants not only hadn’t seen a lawyer since the storm, but hadn’t had contact with one six months prior to Katrina’s landfall.
Back then there was no state-established system for monitoring or funding public defense attorneys. Rather, a network of private attorneys had created a system called the Orleans Indigent Defender Program, in which they represented poor defendants part-time.
According to a report released in 2006, the defense lawyers were allowed to take on as many private cases as they wanted. As a result, their indigent defense work suffered. The center found they didn’t advocate for lower bonds, visit crime scenes, interview witnesses, do research or even prepare for trial.
In 2007, the legislature created the Louisiana Public Defender Board, a 15-member commission housed in the executive branch selected to promulgate indigent defense standards. Though trial-level services were still delivered with local autonomy, indigent defense as a whole became organized at the state level. As a result, districts started getting state money for public defense, in addition to their local revenue. The central office also started contracting with non-profit public defender agencies for some appellate services and capital conflict representation.
In the years following Hurricane Katrina, the creation of the Louisiana Public Defender Board was called “one the most substantial reforms” to be implemented statewide.
Fast-forward to 2016, however, and prosecutors are now challenging the merits of that board, and the efficiency with which its members dole out state funds to keep local defense up and running.
“The public defense and district attorneys have adversarial roles in the courtroom. Taking that at large, there’s certainly potential of appearance of conflict of interest.” — John Burkhart, campaign manager for the Louisiana Campaign for Equal Justice
In May, Adams wrote an opinion piece
for The New Orleans Advocate
likening the public defender's budgetary complaints to the story of "Chicken Little” — the fairy tale about the chicken who claimed the sky was falling. The board, Adams said, was spending too much money on staff and nonprofit legal organizations, and not enough on local defense.
“We believe the problem lies not with local public defender offices, many of which do an outstanding job of representing their clients, but in the Louisiana Public Defender Board, which has become a kind of middleman receiving and parceling out the state’s $33 million annual allocation,” Adams wrote. “Before the board came into existence in 2007, public defender offices may have been underfunded, but they were not in crisis.”
Adams and other prosecutors haven’t just targeted the board in media campaigns. They’ve also shown up before the legislature to argue the merits of HB 1137.
The bill would reduce the Louisiana Public Defender’s Board from 15 members to 11, removing some law professors that serve and allowing the makeup to include local public defenders. Four members of the board would be appointed from the governor, five from the state Supreme Court, one member from the House and one from the Senate.
The bill also calls for 65 percent of the state public defender board's $33 million in direct state funding to go to local districts. Last year, the board doled out roughly 50 percent of funds to those attorneys.
On May 24, the bill passed the Senate by a vote of 33 yeas and 2 nays with minor amendments, and was ordered returned to the House.
During a hearing in the Senate Judiciary B committee, not a single defense attorney spoke in favor of HB 1137. In contrast, all five who spoke in favor of the bill were employed by a district attorney’s office. Among them was Ricky Babin, District Attorney overseeing Ascension, Assumption and St. James parishes.
Like other testifying district attorneys, Babin recalled a time when the defense attorney of his district had reserves, before the creation of the Louisiana Public Defender Board.
“When the money came to the local boards, we had no problems. We had no issues. We worked together,” Babin testified. “I believe it would be way better served to have those funds brought back to the local area where we can decide, they can decide, the courts can decide how that money is raised and how we can supplement that money.”
Several prosecutors took issue with capital defense funding, opining that the board inappropriately funds nonprofit legal organizations that represent the indigent on death row, who make up less than 1 percent of criminal defendants.
“A lot of people are getting a lot of money who don’t try cases,” says Joseph Raspanti, a former prosecutor and criminal defense attorney. “They’re stealing my money.”
Of the $33 million budget, about $10 is now allocated for death penalty representation, juvenile services and other funds.
Local prosecutors aren’t the only legal experts who have complained about the structure of the board, and about how it’s funds are dispersed.
Like Adams, former prosecutor and criminal defense attorney Joseph Raspanti criticizes the merits of the described public defense budgeting crisis. He says both the board and local defense offices, including Orleans Public Defenders, are “top heavy,” and waste precious public dollars on attorneys who rarely enter the courtroom.
“A lot of people are getting a lot of money who don’t try cases,” Raspanti said. “They’re stealing my money.”
Other private defenders, as well as public defenders, have adamantly disagreed with the prosecutors’ claims.
They include Baton Rouge-based criminal defense lawyer John DeGiulio, who in another opinion piece
in The New Orleans Advocate
defended the Louisiana Public Defender Board .
“Since the reform, public defenders have been asked to comply with caseload limitations that allow proper representation,” DeGiulio said. “Most of them do not have retirement or health insurance, nor direct salary payments from the state, unlike assistant district attorneys. But the quality of representation has improved.”
The real culprit, defense attorneys argue, is that the funding system as a whole is inadequate, as Louisiana is the only state in the nation that relies mostly on traffic tickets and forfeited bail bonds to cover public defense.
Latest statistics show that 33 percent of the board’s revenue currently comes from the state. The rest is from fines and fees. As Bunton explains, public defender offices have no control over these revenue streams, their collection or disbursement.
“It’s inadequate, unstable and unreliable,” Bunton repeatedly has said.
Louisiana is the only state in the nation that relies mostly on traffic tickets and forfeited bail bonds to cover public defense.
In the past, Bunton has pointed to a 2006 American University report. It found that with more than 20,000 indigent clients a year, the Orleans Public Defenders office needs 70 lawyers and an $8.2 million budget to “protects its clients’ constitutional rights.”
A more recent tally
showed the office had about 50 lawyers and a $6.2 million budget.
In late May, Bunton told Gambit
that his office’s fiscal challenges won’t likely be resolved this legislative session.
He hopes that by the end of 2017, legislature will agree to substantial reform of Louisiana’s “user pay” system. The alternative, he said, is a “coercive judicial intervention” on a federal level, possibly through a consent decree.
Dixon agrees, saying that supporters of HB 1137 have failed to articulate how it will help solve the overall budget problem.
“You will be removing years of experience, years of institutional knowledge, and replacing them with folks who know nothing about what we do,” Dixon told the Senate in May.
In the meantime, legal groups from all sides are left debating the merits of the district attorneys’ involvement in public defense funding the first place, with many wondering whether the issue would be more quickly resolved if the LDAA were not involved.
According to Bunton, district attorneys have long “meddled” in the politics of defense funding. He points to 2009, when the district attorney’s association lobbied against an effort to get public defense attorneys a $20 court-cost supplement.
“Prosecutors will forever try to make sure public defenders bring knives to gunfights,” Bunton said. “It is in their interest to do so.”
This legislative session, Dixon acknowledges a concern over local restriction of indigent defense services, because it slows the docket and affects their ability to prosecute.
Dixon also argues, however, that district attorneys want to set policy on the board’s finance of capital cases, because lawyers working them have been “far too effective” for the opposition’s comfort. He points to recent data showing that since 1976, more than 80 percent of death sentences have been overturned in Louisiana.
“When you don’t taken consensus approach, and you try to dictate how money is spent on an adversarial side, that’s where you cross over into the unethical,” says David Carroll, executive director of the Sixth Amendment Center. “And I think that’s what’s happening in Louisiana.”
David Carroll, executive director of the Sixth Amendment Center
, says there’s nothing wrong with two oppositional groups working together for comprehensive reform — but that’s not what he sees happening here. “When you don’t taken consensus approach, and you try to dictate how money is spent on an adversarial side, that’s where you cross over into the unethical,” Carroll said. “And I think that’s what’s happening in Louisiana.”
Legal ethics lawyer and Loyola University New Orleans College of Law professor Dane Ciolino, on the other hand, has a different outlook. While he agrees that the defense attorneys and the district attorneys are adversarial forces in the courtroom and beyond, he thinks it’s appropriate for an oppositional voice to lobby against certain aspects of public defense funding.
“In my opinion, there’s nothing illegal or unethical about those lobbying efforts,” Ciolino said of the district attorney’s association. “One of the ways democracy works is that people with competing interests take facts and opinions to the legislature in attempt to get what they want.”
Ultimately, Ciolino concluded, the onus lay on lawmakers to consider the source of the information when making decisions about public defense funding, or any other issue to come before legislature.
“It’s called politics,” he said with a laugh.