By Peter Whoriskey
Washington Post Staff Writer
Saturday, April 15, 2006
NEW ORLEANS -- Every week or so here, the chief criminal court judge and his staff discover someone in jail who shouldn't be.
For the most part, Chief District Judge Calvin Johnson said, they are indigent defendants who were arrested on misdemeanor charges just before or after Hurricane Katrina hit Aug. 29. They often lack attorneys and their cases get "lost" in the system, he said, leaving the accused to serve weeks or months of extra incarceration.
Around the courthouse, it's known as "doing Katrina time."
"We're still finding people -- they bubble up weekly," Johnson said, noting that he releases them. "We can't have people in jail indeterminately."
The flooding after Katrina robbed thousands of people of their homes, drinking water and other essentials. But it has also deprived many others of another fundamental: the right to legal representation.
The criminal justice system here is besieged on all sides. The evidence room was flooded with several feet of water. Witnesses, like half the population, are scattered all over the country. The district court's 13 judges are restricted to holding court in two federal courtrooms available only four days a week. No criminal jury trials have been held since the storm.
But what may be raising the most troubling constitutional issues, according to judges, prosecutors and defense lawyers, is the underfunded public defender system, which is required by law to provide indigent defendants with legal representation.
It is now at the center of a high-stakes constitutional standoff.
District Judge Arthur Hunter, a former street cop, has announced that he is suspending the prosecution of cases in which the defendants are represented by the public defender's office -- that is, he says, until Louisiana appropriates enough money to allow public defenders to put on a competent defense.
Without action from the state legislature, he indicated, he may soon have to consider releasing those defendants. (Last week, lawyers began seeking the release of more than 15 of them.) "It's beyond the question of whether these defendants have effective counsel -- it's a question of whether they have attorneys at all," Hunter said.
Even before the hurricane, Louisiana's system for indigent defendants had been considered woefully inadequate, according to a report from the National Legal Aid & Defender Association and the National Association of Criminal Defense Lawyers. There isn't enough money for the program, according to the report, leaving public defenders in one parish to handle six times the normal full-time caseload -- while working part time.
About 80 percent of defendants in New Orleans are supposed to be represented by the public defender's office. Supported largely by traffic court fines and fees -- which evaporated after Katrina -- the office shrank from 42 lawyers to 10 afterward.
With more than a thousand clients still spread out across the state in parish prisons because of damage to the Orleans Parish jail, the chief public defender said the office has not been able to meet with all it is expected to represent.
"We don't have the time or the manpower to go out to each of those facilities to speak to each of our clients," the city's chief public defender, Tilden Greenbaum, testified in Hunter's court in February, when the judge was trying to determine whether the public defender's office could offer effective assistance to the city's indigent.
The public defender program received a short-term spurt of money, but Hunter has deemed that an insufficient fix.
Meanwhile, no one knows exactly how many defendants are serving or have served "Katrina time."
District Attorney Eddie Jordan minimized the issue, saying that prosecutors have done everything possible to ensure that "there's no one in jail who should not be in jail."
But he conceded that because of complications caused by the storm, some "could very well have slipped through the cracks."
According to Johnson -- as well as defense lawyers and law students who have volunteered to represent the indigent -- some defendants have been kept in jail even after charges were dropped. Others have been kept in jail awaiting trial longer than the maximum possible sentence, and still others were being held in jail after being sentenced to a boot camp that is no longer in operation.
Last month, Johnson's assistant, Shannon Sims, discovered that a woman charged on Aug. 25 with prostitution was still in jail -- having served seven months awaiting trial on a charge for which the maximum sentence is six months. She was released.
"That case certainly was unfortunate," said Donna Andrieu, chief of appeals for the district attorney's office. She noted that "we have been actively reviewing our files so that we can avoid having anyone's constitutional rights violated."
Another defendant, Greg Davis, 50, was held in prison from before Katrina until last month for failing to pay $448 in court fines, which stemmed from a misdemeanor drug paraphernalia charge, according to court records. He was released last month. He had been picked up on a burglary charges, but although those were soon dropped, he stayed in jail because of the fines.
"He was basically like, 'Things can't get any worse.' He had no idea why he was still in there," said Sarah Turberville, one of a group of Tulane University law students who visited Davis and presented his case, in the absence of a public defender, to a judge. "He needed someone to plead his case."
Pamela Metzger, director of the Tulane Law Clinic, has in recent months sent students out to parish prisons around the state where New Orleans defendants are held.
They have interviewed about 60, she said, and of those only one or two had seen a lawyer or a judge since the storm.
"I understand that Hurricane Katrina upset everyone's lives," Metzger said. "But as far as I know, there are no disaster exemptions to a person's constitutional rights."