Thursday, April 19, 2007

Keeping One's Word

As promised, Judge Hunter has ordered the release and halted the prosecution of 42 indigent defendants because they have, effectively, no legal representation. (The Court of Appeal has stayed, or postponed, that ruling until it can review the case.) Given enormous, and unconscionable, caseloads, the Public Defender simply does not have the resources to represent every new indigent defendant. At root, Judge Hunter blames the State for its failure to adequately fund the the public defense system. The Office of the Public Defender states that it requires $2.1 million to hire enough lawyers.

A State legislator intends to introduce legislation to shore up the State's funding for public defense. The fact that we have a shortfall, however, is truly remarkable, particularly given that the amount needed is so modest (by comparison, the City recently awarded garbage hauling contracts worth more than $33 million), and the State has an enormous budget surplus (close to $1 billion). Of course, public defense is not everyone's top priority. As a State Representative observed, the public tends to view public defense as a "perk" for criminals, rather than a constitutional obligation. I guess everyone has forgotten Gideon's promise.

Friday, April 13, 2007

Misdemeanor Murder

New Orleans is a convenient place to commit murder these days. Here's the City's new tourism ad copy, Soprano style: Whack your biggest foe, get busted, cool off in jail, and be back on the street in just 60 days!

On the local battlefields, it's called a 60-day murder. The term is derived from the criminal code provision, article 701, that requires the State to release a defendant from jail if no felony charges have been filed within 60 days. Criminal defendants, including murder suspects, are being released at alarming rates under this provision. This, no doubt, contributes to the revolving-door image of the local criminal justice system. It also fuels the public fear that hardened criminals are exploiting State-sanctioned get-out-of-jail-free cards to take a slap on the wrist and strike again. Hence, the misdemeanor murder.

Blame the silly 60-day rule, right? Think again.

Let's be clear about what Article 701 (ie, the 60-day rule) is and is not. The 60-day rule is not designed, nor should it be used (as avowed by the current D.A.), as a default 60-day jail sentence. (Remember the presumption of innocence?) It simply provides that someone accused of a felony cannot be held in jail without charges for more than 60 days. It does not mean that the case is lost forever; the D.A. is always free to file charges, subject to the applicable statute of limitations. (There is no limitations on murder.) Thus, build a good case and you can still prosecute. Better yet, don't arrest someone until you have probable cause.

Of course we want to keep violent criminals off the street. Thus, sixty days is allotted to detain someone after arrest while the State prepares the prosecution and conducts follow-up investigation to ensure it has probable cause to bring charges. But most accused criminals do not need to be detained. I'll save for another day my objections to the bail system here. Suffice it to say, there are way too many people awaiting trial who are locked up simply because they are too poor to pay for even a modest bail bond, not because they pose any threat to the community. If those people are being released under Article 701, consider that a net positive.

Even for those persons who should be detained, in most cases 60 days is an extraordinary amount of time to bring formal charges. An informal survey shows that many jurisdictions do just fine with much less -- typically 20 days. (If someone knows of a formal nationwide survey, I'd be curious to see it.) The vast majority of arrests -- I've heard upwards of 90% in New Orleans, though I have no data -- are simple drug cases. It should take almost no time at all to screen a simple drug possession case. After all, there is very little, if any, investigation that needs to be done. Such cases usually involve a single witness: the arresting officer. What further investigation needs to be done? Either the defendant has what the officer says or he doesn't. Of course, the purported drugs must in fact be an illicit substance. That brings up a unique problem in New Orleans.

Now almost 20 months removed from Hurricane Katrina, the City's crime lab remains shuttered. Thus, local authorities have to rely on crime labs in other jurisdictions to get their work done. That explanation is wholly unacceptable. If the City wants to fight crime, it absolutely must invest in a suitable crime lab. There are plans to do so, but enough talk! The steady tortoise beat the dozing hare, but New Orleans seems to be both slow and sleeping.

Apart from the crime lab issue, why can't local prosecutors file charges more quickly? The D.A. says police don't write their reports fast enough, and the police say the D.A.s are either inept or don't communicate their needs. Cut through the recriminations, and they're probably both right to some extent. Police should be writing reports quickly as a matter of routine, if for no other reason than to be sure that the reports contain details that otherwise may be lost as the officer's memory fades. The D.A., however, must communicate with the police.

Having Assistant D.A.s in the police station available to screen cases as they're brought in would make a big difference. That is common in other jurisdictions, and goes a long way to speeding up the charging process. This serves at least two functions. First, the police can be trained on the spot to know what needs to go into a police report for prosecution and can be dispatched promptly to conduct necessary follow-up investigation. Second, the prosecutors can help weed out weak or faulty cases right at the jailhouse door. This is an important function because it saves a lot of innocent people the heartache of being locked up for no good reason, and it also lessens the burdens on the system that is overloaded with pretrial detainees in cases that should not be proceeding to prosecution.

Unfortunately, New Orleans just wouldn't be the same without some good old fashioned inefficiency. If there is a system in place for prioritizing cases, it is not evident. There is absolutely no excuse for the D.A.'s office to be surprised when the 60-day clock is about to expire. A simple calendar system should be alerting prosecutors at various intervals (eg, 30 days and 10 days before expiration) so cases don't get "lost" in the system. The D.A. also needs to set some realistic prosecutorial priorities. Stop wasting so much time prosecuting petty, victimless crimes, and concentrate on the bad stuff. It amazes me how many resources go into prosecuting petty drug users, and how the D.A.'s attention and resource allocation isn't ratcheted up for the serious violent offenses. We all agree that no one wants streets full of petty thieves, prostitutes, and drug addicts, and reducing such crime may help diminish more serious crime (the broken window theory of enforcement). But headlines are made when innocent people have to dodge bullets, not step over drunks on the sidewalk.

This is serious business, and I certainly don't pretend to have all the answers. Two things are clear, however: the old way of doing things doesn't work, and throwing up your hands accomplishes nothing. The criminals know that, which is why they seem to literally get away with murder.

Tuesday, April 10, 2007

Sunblock for Lawyers

It's no secret that law can be a lucrative profession, save of course for public defenders and prosecutors. It has been well documented (in presidential politics, of all places) that plaintiffs' lawyers often earn a king's ransom in the lottery of personal injury and class action awards. Apparently, there must be some shame in that. Or do lawyers have something to hide?

Take this unusual case. Lawyers filed a class action on behalf of motorists who complained that Shell gasoline overloaded with sulphur caused gas gauges to break. Shell paid to repair tens of thousands of cars. Lawyers then extracted (extorted?) a settlement requiring Shell to expand the repair program and to set aside $3.7 million for damages claims for things like lost wages (up to $300 for each plaintiff). Plaintiffs' lawyers also managed to squeeze another $6.8 million out of Shell for their fees. The real drama in this case concerned the distribution of legal fees -- sadly, fairly typical. The strange part is the court-ordered secrecy surrounding the resolution.

The lawyers evidently weren't content to simply divide the bounty evenly (at roughly $86,000 per head), so the federal judge overseeing the case assigned five lawyers from the group to assess the relative contribution of each lawyer to determine the proper division. So far, so good, as long as you're not bothered by a conspicuous conflict of interest. Then the judge "sealed" the judgment, ruling that the final distribution would remain secret. He went so far as to forbid the lawyers from comparing notes on what they were paid. Apparently the lawyers can't be trusted not to sue each other if they find out someone got a bigger slice of pie than they did. After objections to the secret distribution, the judge refused to unseal the judgment and then sealed that ruling (effectively saying, "I won't disclose the distribution, and I won't tell you why I won't tell you."). Huh?

Seems to me that the public, including the tens of thousands of class members, should know how much the lawyers got paid. After all, the class members can't recover more than $300 a piece, so why can't they know how much their lawyers each were paid? And why can't the lawyers disclose what they got... must they check their First Amendment rights at the courtroom door?

If the lawyers can't be trusted not to fight over the fee distribution, then something tells me the distribution itself may not be equitable. If the judge is concerned that lawyers would fight each other if they knew what one another received, then by the same logic shouldn't we seal all judgments so all potential litigants would be denied the ability to compare notes? (Would the public be more or less litigious if there were no publicity for runaway jury awards?)

I don't know much about this particular case, but I generally favor public disclosure. If the distribution was proper, then exposure shouldn't concern anyone involved. If not, "sunlight is said to be the best of disinfectants." That observation comes from Louis Brandeis, who later jointed the U.S. Supreme Court, in his book "Other People’s Money, and How the Bankers Use It." I won't venture to predict the result on appeal, but I'd suggest a Brandeis sequel: Other People's Money, and How Lawyers Keep It."

Friday, April 06, 2007

Sober Justice

How's this for a judicial cold shower and pot of coffee:

"Indigent defense in New Orleans is unbelievable, unconstitutional, totally lacking the basic professional standards of legal representation, and a mockery of what a criminal justice system should be in a Western civilized nation." In short, it's a "legal hell."

Save your hate mail for someone else. Those aren't my words; those are the words of none other than Arthur Hunter, a sitting criminal district court judge. Judge Hunter has vowed to release indigent pretrial detainees rather than require them to wait in jail while the cash-strapped, under-staffed public defenders try to represent them. Sounds like Judge Hunter has thrown down the gauntlet. I confess, I think his comments are overstated. But now that he's got everyone's attention, what to make of it?

The D.A.'s office has suggested that the shortage of public defenders should be remedied by judges appointing private lawyers to take on overflow cases. I like that idea in principle, though I'm not sure it's a viable solution for at least two reasons. First, the license to practice law is not designed for indentured servitude. While I firmly believe all lawyers absolutely should take on pro bono cases, forcing lawyers to take on cases for which they're either inexperienced or uninterested will result in poor representation. Defense lawyers must be zealous advocates, not courtroom ornaments. And if we are going to pay private lawyers to take on criminal cases (like federal cases under the Criminal Justice Act), then we need to find a pot of money. Back to square one.

Second, having a bunch of lawyers taking on occasional cases probably is not administratively feasible. The criminal system is unique and not always easy (or obvious) to navigate. Thus, the already over-burdened public defenders likely will end up spending so much time on the telephone and holding private lawyers' hands that the public defenders might as well handle the cases themselves. Hello again, square one.

So what's the solution? I wish I knew, and so do all the smart, dedicated people who have been working on this problem for a while. One obvious answer is more money. Steve Singer, the trial chief for the Public Defender, has suggested that he needs a budget of $2.1 million to operate effectively. That's about 35% more than the office has now, but still a relatively modest amount. If we are serious about having an effective justice system, the City should search harder to find a few extra dollars. Perhaps instead of wasting money locking up ever petty offender before trial in the first place, we could spend a little more on defending people and getting them integrated back into the community. If not, the City might as well invest in some handbaskets to get through the legal hell.

Thursday, April 05, 2007

Repeat Champion?

Kudos to the Florida Gators, but I'm not talking about basketball. I wish it was just a game on my mind. It's no longer possible to ignore the crime epidemic in New Orleans. If you're keeping score, the recent spate of murders over the weekend brings the tally to at least 53 in 2007. We're on pace for more than 200 murders this year in a City of somewhere in the neighborhood of 225,000. The City just might surpass last year's blistering rate of 96 murders per 100,000 population -- nearly 20 times the national average -- and be crowned repeat champion as the Nation's murder capital. It's no wonder so many seem to have hitched on to Lot's caravan out of town before the modern-day fire and brimstone vanquish the City that Care Forgot. I can almost picture the airport billboards: "Welcome to New Orleans, the sister city of Sodom and Gomorrah."

Crime is part of urban living, but New Orleans seems to be redefining the industry. I liken crime to having cockroaches. We'll never extinguish the ubiquitous roaches -- Katrina apparently was no match after the critters somehow managed to endure the Cretaceous extinction and Ice Age -- but we're able to keep them under control. Most people look the other way when they see the occasional roach invade their home or scurry across a restaurant floor. It's all part of life in the Big Easy. But when you have an infestation, you call in the Orkin man. New Orleans clearly has a crime infestation, and looking the other way is not an option. If only Orkin had a crime unit!

Tuesday, April 03, 2007

Trial by Derby

Sorry for the hiatus. I've been busy at trial, investigating cases, and attending the roller derby. You heard right. Against the surreal backdrop of Mardi Gras floats -- with Bacchasaurus, Marilyn Monroe and King Kong sculptures and props looking on -- the Big Easy Roller Girls trounced the East Texas Bombers in a bout two Saturdays ago. There was plenty of booze, burritos, bands, and babes on skates to keep the crowd jazzed in that only-in-New Orleans spirit. As someone described it, picture burlesque meets the X-Games. So what does this have to do with public defense?

Among the heavy-hitting skaters are a couple of public defenders. Not only do these ladies tear it up in the courtroom, but they are defending the City's honor in the cauldron of skating competition with, of course, a big dose of kitsch and irreverence. I saw several more public defenders mingling in the crowd, but not a D.A. in sight. I imagine a stable of Assistant D.A.s lashed to poles to avoid the Siren songs of Saturday Night Fever.

I have a modest proposal. Forget juries (the democratic version of a crap shoot?), and let's tee up the backlog of criminal cases and resolve them by roller derby bout. The public defenders can field their team of lady jammers, and the district attorneys will have their own stable of wheeled warriors. Forget jury charges and motions to quash. Justice can be meted out by hard-hitting blockers on the flat track. Well, it's a thought, anyway, for reforming the justice system. At the very least, everyone could benefit from letting their judicial hair down.