Behind the Times, Above the Fold

Here’s a suggestion for Orleans Parish Prison: Take inventory. Nearly a year-and-a-half after Katrina, they still don’t know who’s in custody or to which prisons around the State all their wards were scattered after the big storm. A case in point is the story of Pedro Parra-Sanchez, who spent thirteen months in jail without speaking to a lawyer or seeing the inside of a courtroom. As reported today on the front page of the New Orleans Times Picayune, Mr. Parra-Sanchez finally had a day in court, thanks to the lawyers and student attorneys at the Tulane Law Clinic who secured his release. Unfortunately, Mr. Parra-Sanchez is not the first, and doubtfully the last, to suffer through this prisoner accounting snafu.

For what it’s worth, the Assistant District Attorney offered the State’s formal apology to Mr. Parra-Sanchez, and the presiding judge expressed his outrage. The Sheriff and Department of Corrections – which are responsible for housing prisoners – couldn’t muster an apology, preferring the blame game and finger pointing. Had they previously exhausted the reservoir of hari-kari outrage? I’d guess there’s more head rolling at Wal-Mart when too many DVDs and pampers disappear from the shelves than when Orleans Parish Prison loses track of its inmates. Is it really too much to ask to have the State keep tabs on its pre-trial detainees so it knows who’s in custody, where, and for how long? One would think modern computers are up to the task, and a decent tracking system would save the State a lot of front-page news embarrassment. (Well, except shame may be unknown in some bureaucratic quarters.)

A positive footnote: Kudos to Touro Synagogue, which paid for the travel expenses home to California for Mr. Parra-Sanchez, a devout Catholic man, after learning of his plight from a Tulane student attorney of Iranian descent. Score one for interfaith cooperation!

Bake Sales for Justice

Public defenders are responsible for representing indigent criminal defendants facing imprisonment. While it may seem that public defenders work for free – their meager salaries hardly suggest otherwise – the State is responsible for paying for indigent defense. But for the Sixth Amendment back-stop, it’s probably fair to say that the State of Louisiana would not provide its poor with defense counsel out of the goodness of its bureaucratic heart. (Having the nation’s highest rate of incarceration apparently is a badge of honor.) Even with the Constitutional mandate, however, funding for the Public Defender here is woefully – and arguably unconstitutionally – inadequate. Historically, the local Public Defender has been financed by revenue from parking tickets and court fines. The former essentially dried up after Hurricane Katrina; the latter presents an unsavory (and likely unconstitutional) conflict of interest when the Public Defender earns its keep when its clients are convicted and have to pay fines.


The judges of the Orleans Parish Criminal District Court recently concluded that the floundering system has imperiled the Public Defender’s ability to provide an adequate defense for all its indigent clients as the Constitution requires. True enough. Curiously, however, the judges blame the Public Defender’s recently implemented “policies and practices” for the breach, and the judges have threatened to hold the board that oversees the Public Defender in contempt if more public defenders are not hired. The offending policies and practices are things like hiring full-time public defenders, establishing a central office, and setting up a networked computer system to track cases – all changes recommended by every independent study (including one by the U.S. Department of Justice) of the problems with public defense in Orleans Parish. Nor do the judges even hint where the money will come from to hire more public defenders, to say nothing of the fact that attracting competent lawyers at $29,000 per year is no small task. Thus, the judges’ criticism sounds a lot like blaming teachers for a poor education system when the State fails to allocate sufficient funds to buy textbooks and hire enough qualified teachers to maintain a proper student-teacher ratio. I guess the Public Defender should take a page out of the PTA playbook and hold a bake sale to close the gap in funding.

Perhaps the judges’ threatened contempt proceedings are better directed at the Governor. It is the State, after all, that is responsible for ensuring that competent lawyers are provided to those who cannot afford them. (The Public Defender board is at the State’s mercy for funding.) If the State were serious about discharging this obligation, it would follow the federal model and consider funding the Public Defender in the same manner and to the same extent as the State’s Prosecutors. And if the State’s not willing to do that, the least it can do is dispatch more meter maids – or eat more cupcakes.

Prosecution under water?

Facts may be stubborn things, but criminal trials depend on evidence to prove up the facts, and waterlogged evidence may be the hobgoblin of prosecution in New Orleans. You see, the State's evidence rooms were flooded following Hurricane Katrina. The State depends on two evidence rooms, one under the court house and one under the adjacent police station. The former had chest-deep water in it, meaning items on the upper shelves were relatively unscathed, save the ubiquitous mold growing on everything in the damp, musty environment. The latter did not fare as well. That evidence room was completely submerged with evidence floating around in a giant fish bowl. By the time the waters receded, the doors were completely rusted shut and had to be opened like Geraldo cutting into Capone's vault, only this time the State interceded to block our cameras from filming the opening. We were permitted, however, to have an independent cameraman film the interior, which was a heaping, stinking mess of moldy, waterlogged, rusted "evidence." The State hired a remediation company to freeze dry papers to extract the water and clean up the mess. But they could not save water-worn evidence labels, nor could they know for sure to which case things belong that had been strewn about in the flood waters.

We now hear that 90% or more of the State's evidence has been "remediated," a term that necessarily makes defense lawyers, and perhaps juries, circumspect. In any case, that still leaves a good deal of evidence missing or destroyed. (See this excellent NY Times article by Chris Drew.) That's not to say that prosecutions can't go forward -- we've all heard of people being convicted for murder without a weapon or even a body being found. But what are we to make of the fact that the destruction of evidence was, at least in some sense, caused by the State's own folly? Like Jonah who slept as his ship split apart in tempestuous waters, the State seems to have completely ignored the obvious fact that flood waters could wreak havoc on the State's evidence room. Everyone knows basements are virtually non-existent in New Orleans -- even the dead are buried in above-ground crypts -- so you've got to wonder why the State was storing its precious evidence below the water table. Perhaps the State awaits Jonah's whale to spit us all out on the dry shores of Assyria?

Coming to a theater near you...

Sit back, close your eyes and listen. One of New Orleans’ bright stars, a pianist named Ronald, is sure to impress. He oozes talent the way any virtuoso would who’s spent his life at the keyboard. Now open your eyes and you’ll be truly amazed. Ronald is a high school junior. And he’s just one among the stable of young artists studying at the New Orleans Center for Creative Arts (NOCCA), the local arts conservatory for high school students. It’s the same place where Harry Connick, Jr., Wynton Marsalis, and Irvin Mayfield honed their skills.

I spent yesterday afternoon at NOCCA to witness firsthand a shining example of a New Orleans institution that truly works. I was inspired as much as entertained. NOCCA is remarkable not only for nurturing amazing talents, but for having students that reflect the resiliency and resolve that pours forth from the City’s soul. Ronald, like many other NOCCA students, lost just about everything (including his piano) in the floods following Katrina. His talent and desire, however, were unrepressed. He studied at Julliard while the City got back on its feet, but he couldn’t wait to settle in again at NOCCA. A number of students were so anxious to return that they are living with friends despite their own families being unable to move back to the City. They need New Orleans and NOCCA the way we all need air to breathe. New Orleans – a place where music and the arts are literally the heartbeat of the City – no doubt needs them equally as much. Come out to support NOCCA and its aspiring young artists and you'll play a part in New Orleans’ revival and just might catch a glimpse of tomorrow’s biggest stars.

Time’s up. Pencils down.

Following arrest, the accused's initial appearance before a magistrate will largely dictate the course of events to come. If you're arrested without a warrant, the State has 48 hours to bring you before a magistrate to determine if there is a sufficient basis, or probable cause, to charge you with the crime alleged. (If arrested with a warrant, a magistrate already has found probable cause to issue the warrant.) No probable cause, no jail awaiting trial. If there's cause to hold you in jail, the magistrate will set bail, which allows you to be released from jail pending trial upon furnishing the security the magistrate believes is necessary to assure your appearance in court. Pretty important stuff, right? The speed and perfunctory process might give pause to the man behind your local deli counter.

My first exposure to bond hearings was on a Sunday at the House of Detention -- first stop on the jail express. (Bond hearings are held seven days a week to account for daily arrests and the 48-hour rule.) Around 50 people arrested over the last 24 hours were herded into the old line-up room at central lock-up, adorned in retro-bureaucratic Spartan furnishings: a few weathered tables and rows of metal and plastic chairs. In other words, it's a dump. The prisoners all wear bright orange jumpsuits with OPP (Orleans Parish Prison) emblazoned on the front and back, legs shackled (sometimes to another prisoner) and sheriff's deputies stationed all around. Our team -- one experienced public defender, me (not so experienced), and three law students -- has about 30 minutes to fan out and interview all the prisoners to find out each person's criminal history, physical and mental health, current employment, parole and probation status, and family and community ties -- all factors that bear on the bail determination. Needless to say, there's hardly time to interview one or two persons in that time, let alone the whole lot of them. And there's definitely not time to hear about the facts of everyone's alleged misdeeds (though they surely want to talk about that).

Most insist they are innocent. Most are not. But some undoubtedly do not belong in jail. Repeatedly you hear how the police planted evidence or someone was picked up based on an “anonymous” tip, i.e., “You look sketchy in a bad neighborhood, so we’re gonna search you.” No doubt, most of this, in the words of one law school professor, slices the bologna too thin. But it's difficult to discount their stories completely. Case in point: Upon meeting Carl at the bond hearing, you wouldn’t miss the fact that he had a brand new black eye, bruises, and generally looked beat up. As he tells it, he was pulled over for a traffic violation and the police beat the crap out of him for no good reason. It’s hard to dispute the beating part. His crime? Criminal trespass. Right. Sounds more like the cops had to charge him with something if they were going to justify the rough treatment.

Some are just angry and defiant. Perhaps that’s how they should feel. In others you sense the fright and apprehension. Trust me; you don’t want to be locked up in OPP. Still others are simply resigned to their fate, while a few are confident that their buddy will bail them out. They’ve been through multiple arrests and know the drill.

Before you know it, the Magistrate strolls in, takes his position at the desk on an elevated stage overlooking the rows of prisoners, separated by a table with a couple Assistant District Attorneys and computer. Time's up. Pencils Down. It’s my chance to make a case based on the reams (or not!) of pertinent information I was able to learn in a short interview. Unfortunately, it all makes little difference. The hearing for each person usually lasts 30 seconds or so -- just long enough for the Assistant DA to read the charges and criminal history and for the judge to set bond. If I've got some particularly compelling facts for either probable cause or to set bond, the judge will indulge another minute or two of argument. Defense lawyers in this process primarily serve as ornaments to give some semblance of fairness. If you’re a prisoner, you'd better hope your lawyer is lucky, rather than good.

Rationing Justice

Any pretense of criminal justice in New Orleans has been scrubbed away by the flood waters. Especially if you are poor, justice is hard to come by. In its recent report, the U.S. Department of Justice concluded that justice is “simply unavailable" for the poor in New Orleans. No doubt that’s true for the public defender system, which has been chronically, and unconscionably, underfunded. (The public defender represents the vast majority of those arrested.) Discount justice translates into a pared down Bill of Rights. The familiar right to counsel and due process are reserved, for the most part, for those who can afford private counsel. In Louisiana, prosecutors have 60 days from the date of arrest to pursue (or decline) formal charges against those in custody. Except for having, at best, a few moments with a public defender at a bond hearing, indigent defendants arrested in Orleans Parish won’t see a lawyer or daylight until charges are filed. And rest assured that Eddie Jordan, the Orleans Parish District Attorney, will use every bit of allotted time to make up his mind. “Innocent ‘til proven guilty” is a virtually unknown concept in Eddie Jordan’s world. There is no urgency to weed out the innocent for a D.A. who admittedly prefers to keep everyone locked up as long as possible. Probable cause be damned. (Welcome to bizarre-o world where the D.A. remains free to, and often does, pursue charges even if a neutral magistrate has previously found no probable cause to support the arrest.)

Katrina has compounded the problems for the poor. There now are fewer public defenders by roughly half, but the case backlog has grown exponentially. There were as many as 6,000 cases backlogged after the hurricane, and approximately 3,000 remain. (To say nothing of the 50 or so new cases coming in every day.) Those are people – many innocent – that remain jailed since Katrina awaiting trial, many of whom have not had any meaningful representation. The system simply does not have currently the resources to provide much more than ornamental legal representation to everyone who depends on the public defender system. That is not justice. As Supreme Court Justice Hugo Black observed four decades ago, we must not ration justice if we are to preserve our democracy. Let’s not test the theory.

In case it wasn’t obvious, I intend to use this space to ramble (and maybe rant) a bit about, among other things, the evolving state of affairs in the so-called criminal justice system in New Orleans. Let me set the stage. It is no secret that the justice system here has always been, shall we say, imperfect. Hurricane Katrina in 2005 served to expose some serious flaws, amplify the problems, and create new challenges for a chronically struggling system. Katrina decimated New Orleans and strained every sense of normal life for the City’s population. (The photos a footage you’ve seen may have earned their thousand words, but they are not currency enough for a disaster that defies description?) Those of means faced unimaginable obstacles whether they stayed or tried to go. Others were stranded until scattered like seeds blown by the shifting winds of incompetent evacuation planning and response by the supposed authorities.

Whatever measure of bureaucratic care there was, it doubtfully was saved for the Orleans Parish prisoners – castoffs who even before the storm had been relegated to caged shanty towns that, save the bars, might not be preferable to Rio’s slums. With Katrina approaching, no one was released from jail, not even if charged with the most minor offense, bonded out, or previously ordered released. Thus, the public drunk picked up the night before had to endure the same forced evacuation as violent criminals rightfully detained. Prisoners were quickly herded onto buses, though they were allowed no personal possessions. Indeed, prisoners made their passage without any identifying paperwork, and thus they were anonymously scattered about to prisons statewide without regard to their crimes charged. Alleged murderers and drunks shared cozy confines. Some were packed into prison yards and were tossed peanut butter sandwiches over the fence like meat pitched to starving dogs, so only the strongest ate and violence prevailed. Others waded through toxic waters only to be corralled on highway overpasses where, without any shade, prisoners’ skin was cooked in the blistering August sun for days on end.

Without a tracking system, authorities could not know for certain who was in custody, where they were being held, or what charges they faced. Army’s of volunteers eventually fanned out across the State to unscramble the mess. Months elapsed before even public drunks, who had been detained well past the maximum time faced for the alleged offense, could see a lawyer. In the interim, families had almost no way to track their loved ones in jail, and legal representation for the poor was essentially non-existent.

Widespread flooding did not spare the criminal justice system. The State courthouse in New Orleans was severely flooded and remained shuttered for months. Thus, state judges had to rely on limited courtrooms at the federal courthouse (which was not flooded) on rotating basis. The place where virtually all the State’s documentary and physical evidence was stored just so happened to be located in the basement of the courthouse and police station, which literally turned into a fishbowl of detritus, which was a moldy heap of trash when finally drained. (I’ll save the details for future posting.) Many witnesses (including police officers) evacuated the City and have not returned. The same can be said of residents who would fill the jury pool. With a reduced population and jury summonses going undelivered given so many relocations and unknown addresses, the state courts have been relegated to drawing only 150 jurors per day. Most public defenders either quit or were laid off following Katrina. An office of 50 or so lawyers was reduced to 4. The D.A.’s office similarly took its blows. Needless to say, the criminal justice system practically ground to a halt. Where to begin?

Have you thanked a solider today? On this Veterans' Day, I will take a brief detour to reflect on where we are. (Well, given that I’ve just started this blog, you wouldn’t know, yet, where this is all headed. The path will become clearer in days to come.) I’ll spare you the full-blown trite observations about how our military is full of heroes who put their lives on the line every day for our freedom. That’s all true. But what we all overlook is the utter ordinariness of our soldiers, and how we could learn a thing or two from them.

Last week, my good friend invited me to attend the Marine Corps Birthday Ball to celebrate the 231st anniversary of the Marines. I was one of a handful of civilians among the 2000 or so uniformed servicemen and spouses who attended the festivities in New Orleans. This year the Commandant (highest ranking officer of the Marines) headlined the event in New Orleans, an evident nod to the special meaning of celebration in New Orleans, which had to cancel the event last year in the wake of Hurricane Katrina. No doubt, the party was full of spectacular pomp and circumstance. Set that part aside, however, and you are left with a bunch of co-workers who were happy to let loose and celebrate tradition and a job well done (and, unfortunately, to honor their lost comrades – a job hazard with which most of us are unfamiliar). There were no parades and waves of congratulation; it was more like a giant office party. I suspect most all the Marines there would tell you that they are not heroes, but they’re simply doing a job. The really amazing part is that they seem to see nothing extraordinary about giving so much of themselves to people they don’t know. We are not all cut out to go to war, but we could all take a lesson in this great legacy of sacrifice. There are plenty of people in our own communities who could use a helping hand. If only it was part of everyone’s sense of basic honor and duty to extend that hand without expecting a pat on the back and being called a hero. It is that, which should be so ordinary, which deserves our celebration. I think our soldiers get that, and for that we should be thankful.

I am now officially back, and not back, in New Orleans. Back because I spent a short time living here several years ago (as well as also attending college at Tulane before that). Not back because in some sense I never left or, more accurately, New Orleans never left me. And not back because in some sense this is not the same New Orleans that I left behind years ago. I now will be living here for the next six months, and I hope to use this blog to chronicle my experiences here over that time. Thanks for reading, and I look forward to sharing future thoughts and hearing your comments. bp