New Orleans Legal System Increasingly on Defensive

NEW ORLEANS —  The controversy over this city’s beleaguered public defender system escalated on three fronts Thursday.

A Tulane University Law School professor filed a suit asserting that the state’s method of funding indigent defense was unconstitutional.

Louisiana is the only state to finance its public defender system primarily through traffic tickets and other court fines -- a financing method criticized as unreliable and inadequate at the best of times, and only exacerbated since Hurricane Katrina.

Professor Pamela R. Metzger said Thursday that the system created “an irreconcilable conflict of interest” for the defender’s office, violating defendants’ state and federal constitutional rights to effective counsel.

She said indigents’ defense either “could aggressively pursue the imposition and collection of fines and fees in each individual case, thereby providing its office with additional and desperately needed funding,” or the office could decline to pursue such fees, which “would provide zealous representation to the individual client but forsake funds vitally necessary” to the office’s other and future clients.

Burton P. Guidry, executive director of the criminal division of the Louisiana attorney general’s office, said he would defend the statute’s legitimacy but acknowledged that the system needed reform. “Universally, we all know that. Everyone’s duking it out over how to do it and where do we start.”

On the second front, a citizens group held a news conference Thursday saying that poor defendants were “paying the price because of the system’s failure.” Lawyer Xochitl Bervera, co-chairwoman of Safe Streets/Strong Communities, said New Orleans public defenders had not been the vigorous advocates that poor defendants needed.

Her organization issued a report based on interviews with 100 individuals arrested before the hurricane and now imprisoned around the state. The inmates said that after being appointed to represent them, Orleans Parish public defenders “by and large did not visit the crime scene, did not interview witnesses, did not check out alibis, did not procure expert assistance, did not review evidence” and otherwise failed to adequately represent their clients, Bervera said.

The Orleans Parish public defender’s office laid off three-fourths of its attorneys after the hurricane because its funding from traffic tickets and court fines had dried up. But Bervera said the problems pre-dated the hurricane.

A month ago, Judge Arthur L. Hunter Jr. halted all publicly defended prosecutions in his section of the Orleans Parish Criminal District Court, ruling that defenders’ excessive caseloads and funding deficiencies precluded effective representation of indigent defendants.

Since then, another criminal court judge has ruled that defendants in his courtroom were not receiving effective representation, but two judges have denied similar defendant motions. The decisions have been appealed.

Orleans Parish’s chief public defender, Tilden H. Greenbaum III, said in an interview Thursday that the Legislature had “never provided adequate funds” to public defenders in the state. Studies have shown that prosecutors have about six to seven times more resources than defense lawyers.

On the third front, Orleans Parish Criminal District Court Judge Charles Elloie appointed veteran criminal defense lawyer Richard C. Teissier to investigate the operations of the seven-member Orleans Parish indigent defense board.

Teissier said the board had a conflict of interest because one of its longtime members, Frank DeSalvo, is the principal attorney for the city’s police officers.

“The lawyer for all the police officers simply cannot divorce himself from all of the instances in which the conduct of police officers is called into question” in criminal cases, Teissier stated in a motion filed Thursday.

DeSalvo said he represented people from “all walks of life” and maintained that he had done nothing in his private practice that conflicted with his role on the board. “There is nothing in our policies that says a lawyer can’t call a police officer a liar,” DeSalvo said.

This week, in a sign that the indigent issue was gaining currency, Gov. Kathleen Babineaux Blanco, a Democrat, pledged to dedicate $10 million more to Louisiana public defense in her budget for the coming year.