Crime Solution: A Group Hug

A glass of red wine a day supposedly keeps your heart in order. Who knew a little wine and cheese, coupled with a group hug, could ward off crime. This story is unbelievable, but true.

Vitter's Vittles

We're all tired of sanctimonious lawmakers being outed for their own indiscretions, and probably equally tired of hearing that we should care about what politicians do in the privacy of their own bedrooms (or offices). But Ann Althouse makes a compelling point about the imbalance between Senator Vitter's self-pardon and the continuing prosecution of the madam who allegedly served him.

Trading Places

The President has commuted the sentence of I. Lewis "Scooter" Libby, who stands convicted of perjury and obstruction of justice. This means Libby remains, nominally, a convicted felon, but he has been spared the inconvenience of a two-and-a-half year jail sentence. He still has to pay a $250,000 fine, but surely the defense fund his well-heeled cronies have managed to scrape together will cover that. And even if he has trouble finding work in the public sphere -- the public he supposedly so lovingly served, save Valerie Plame and the rule of law -- I trust he'll be able to cash in on his connections and land some million-dollar-a-year job working for the likes of Halliburton. If only every felon had it so tough.

The case can be made that Mr. Libby is a decent man and dedicated public servant who was unfairly scapegoated for a failed war policy. It also could be argued that his mild manner and low public profile merely shielded from scrutiny most of his behind-the-scenes evil industry. Your partisan compass likely will dictate which pole has the greater gravitational force of truth. But the rule of law is not so much about truth as it is about judgment and order.

Mr. Libby was adjudged a criminal unanimously by a jury of twelve men and women. The jury, we must presume, had no political bone to pick and no score to settle. They had only facts to judge as challenged and filtered by the best legal defense team available. Mr. Libby was free to compel any witness he desired to testify on his behalf. All men are equals before the law, and even then Mr. Libby likely enjoyed vastly superior resources than just about any other defendant who passes through the system to face even more serious charges. Only Mr. Libby knows exactly what he did and what he intended, but it is left to the legal system -- not political pundits, professional or not -- to sit in judgment and delineate right from wrong.

The President's decision to commute a sentence (be it Mr. Libby's or anyone else's) disrupts the ordered scheme of justice. It is a power that presidents are expected to use sparingly to correct injustices inflicted by the system. And that, of course, is precisely the rub. Mr. Libby's case is not one truly about justice; it is a case about the political compass. (And I do not mean to suggest Mr. Libby's case is any different in that regard than other controversial pardons and commutations.) Sure, Mr. Libby's fate may seem harsh and unfair, but explain that to all the other persons who are convicted of more minor offenses on more slender facts but without all the political fanfare. If only every petty criminal who is unfairly convicted and faces prolonged incarceration had the benefit of political allies (or really any allies) who could wipe away their unfair sentences with the wave of a hand. Surely they all would gladly trade places with Mr. Libby.

Prescription for a Healthcare Crisis

The first law of medicine is to do no harm to one's patient. The second should be not to let politicians make medical decisions lest you harm the profession, thereby harming patients. A doctor and some nurses in New Orleans stand accused of violating the first. Their accusers -- Louisiana's elected Attorney General Charles Foti and Orleans Parish D.A. Eddie Jordan -- have violated the second.

This story, like so many others, begins with Hurricane Katrina. Dr. Anna Pou, an ear, nose and throat specialist who specialized in head and neck cancers, and nurses Lori L. Budo and Cheri Landry were working at Memorial Hospital in New Orleans in the wake of Hurricane Katrina. They each have been charged with murder for the supposed mercy killings (euthanasia) of four cancer patients who died in their care shortly after the Hurricane. What is remarkable is not that the patients died, but that they lasted so long.

Conditions at the hospital were deplorable by even third-world standards. The hospital's first floor was flooded with ten feet of water. There was no electricity, and temperatures inside reached 110 degrees. Public officials told the doctors inside that evacuating the hospital was not a high priority while other citizens were stranded on rooftops. There were many reports of gunshots in the vicinity. The four patients in question were patients of a company called Lifecare, which ran an acute care facility for the critically ill. Dr. Pou and her staff tended to these patients after there own assigned doctor failed to show up. If illness alone didn't kill the patients -- and at least 34 died that week -- then dehydration, lack of medicine, and despair certainly could have been contributing factors.

The doctor and nurses say they did no more than comfort patients in pain -- traditional palliative care. The Orleans Parish Coroner has already ruled that the deaths were "undetermined," meaning that the available evidence does not support a finding of homicide. That should end of the inquiry. But where science has left off, politics evidently takes charge.

The State evidently has a weak case. Apparently unable to secure an indictment, DA Eddie Jordan has offered the nurses immunity from prosecution in exchange for their grand jury testimony. (Otherwise, facing prosecution, they have no obligation to testify for fear of self incrimination.) In my experience, prosecutors offer immunity deals when they have no other evidence on which to rely. There still is no guarantee the nurses will implicate Dr. Pou. They are obligated only to testify truthfully, which means they may well bolster her defense.

Even if there's an indictment, I think this case will be a hard sell to the jury. The facts are murky at best, and there will be a tremendous amount of sympathy for the doctor and nurses who stayed behind to help. The jury (and anyone else) surely will ask, "Where was the assigned doctor? Where were the rescuers? Where were the family members that were so concerned for their loved ones? Where were Eddie Jordan and Charles Foti when the hospital was under siege. What more could these doctors and nurses possibly have done? Would you want your loved ones to continue to suffer under these circumstances?"

It is unclear why these charges are being pursued. Is is political pandering? Are elected prosecutors trying to impose new heroic medicine standards? And why so aggressively prosecute this kind of case when prosecutors seem either uninterested in or bungle prosecutions for violent street crimes? Whatever the reason, it surely will forever damage the medical profession in Louisiana. What doctors are ever going to want to stay behind in time of need if they will face second-guessing and, worse, criminal prosecution? Apparently the assigned doctors who left their posts get a free pass. I suppose it's no wonder that healthcare professionals are not exactly flocking to work in Louisiana. I hope voters feel assured in the future when they sit patiently in the emergency room and hear "Dr. Foti will see you now."

Out in the Cold

The only surprise about Congressman Bill Jefferson's indictment on bribery charges is how long it took the government to file charges. Mr. Jefferson stands accused of using his office to solicit bribes in connection with business deals in Africa, and the $90,000 in marked bills found in his freezer should put the deep freeze on his defense. Unless he can pull off an Edwin Edwards defense a la Houdini, you can score this one for the prosecution.

If the charges are true -- hardly a stretch -- then Mr. Jefferson deserves a stiff sentence. Even if he beats the rap, it still seems to me that Mr. Jefferson needs a lesson in ethics. Whether there's a conviction or not, however, the public still seems to pay the price. For the skeptics and critics, Mr. Jefferson is just the latest example of a corrupt Louisiana politician. For the naive, willfully blind, and plain ignorant people who re-elected him, their faith seems to have been rewarded with nothing more than disgrace and distrust visited upon a City that already struggles to earn the nation's good graces. And for everyone else, an "I told you so" and out in the cold as usual.

The Case for New Orleans

“It's not our fault!” In fits of finger pointing and a rhetorical flourish in his first State of the City address since before Hurricane Katrina, Mayor C. Ray Nagin laid bare the guiding principle of his recovery plan for the City.

If only the State and Federal governments would open the spigot and let the money flow, we could rebuild our hopes and dreams. If only there were a boundless ocean of resources, New Orleans’ problems would be solved. Better yet, if only we had a leader with a clue, we could dig ourselves out of this hole.

I don’t pretend that solving the City’s problems is easy, and I give the Mayor credit for his boundless optimism, but there’s a real difference between unbridled wishful thinking and reality-based planning. To be sure, New Orleans needs more money. But recovery must begin with coherent vision and realistic, definable goals before the money will start flowing from Washington (or Baton Rouge).

Mayor Nagin’s “plan” for the City seems nothing more than fixing potholes, sweeping up the trash, and hoping that the City stays afloat long enough for “market forces” to dictate the future. (His self-proclaimed crowning achievement seems to be a grossly over-priced sanitation contract. Yes, the streets are remarkably clean, but the contract seems to have done no more than prove the old adage that you get what you pay for.) In March, the Mayor unveiled a plan to invest more than a billion public dollars into recovery projects in 17 target zones across the City, but nary a word about it in his address leaves one to wonder if this plan is destined for the growing heap of aspirations that never take shape into full-blown plans.

And what is his vision for the City? Naturally, the displaced want to return to the “way things used to be,” but simply rebuilding the same old structures with the same inefficient and inept systems cannot be the answer. That is particularly true when you are trying to attract people old and new who are tired of the old ways. If you want to build a ship, don't gather the people to collect wood and assign them tasks; you have to teach them to long for the endless immensity of the sea. (Antoine de Saint-Exupery.) We need a vision that is inspired, not tired, and a plan that is workable, not mere pipe dream.

At bottom, Mayor Nagin’s plan is no plan at all, his vision has no imagination. Indeed, other than wistfully aiming to reconstitute the pre-storm City, the Mayor seems utterly incapable of sketching out a realistic vision of a leaner, smaller City in the post-storm world. A real plan undoubtedly requires making difficult decisions – which parts of the City should be rebuilt? – but leadership requires making decisions that cannot please everyone. Unfortunately Mayor Nagin is paralyzed by indecision, perhaps for fear of offending any of his constituents.

It is disappointing that Mayor Nagin would use the State of the City address as a platform for finger-pointing rants – “It’s not our fault” – rather than articulating a coherent vision and viable plan for the City’s recovery, nearly two years after the City was hobbled. Blameless or not, the City still has to make its case that it deserves assistance. Even more it needs to convince the outside world that they should want to help and play a part in the revival of a great American city.

Farewell to Arms

My tour of duty in New Orleans has come to an end. I have mixed emotions about leaving. I thoroughly enjoyed the work, as frustrating as it proved to be much of the time. It was a sincere pleasure to help those who needed help navigating a system that it not always friendly, much less fair. Above all, I mostly enjoyed working with a number of people who are dedicated, passionate, and smart professionals. I do not always agree with some of them (mostly my opponents, but sometimes my colleagues), but I am convinced that we all share common goals even if we can't agree on the best approaches. I just wish I could stay to continue the mission.

In some sense, of course, it is a relief to leave behind the chaos and daily exercise in senseless brutality on the streets of my beloved city. After six months in the trenches, it is time to return to my regular life and take time to reflect from a safe distance. But I know, as Hemingway's protagonist observed, there is no finish to war.

I wonder whether it's a love affair with the local culture -- the food, music, art, people -- that allows locals seemingly to ignore the aura of despair -- violence, poverty, decay. Is there such inevitability, whether the nemesis be a hurricane or a stray bullet, that everyone just prefers to immerse themselves deeply in their affections. Is there no escape, only indifference and diversion?

No, I think there is more. There is meaning in the daily struggle, and there is work to be done. Take inspiration in the perseverance of the people who strive to make New Orleans, or anywhere, a better place. And do not take the place for granted. Its unique culture is precisely what makes it worth fighting for.

Kick in the Pants

I will be returning to DC soon -- none too soon, for some critics -- so I thought I would shift gears and pick on my hometown judiciary. Well, not so much the judiciary as one particular administrative law judge in our Nation's capital who rains shame on the legal profession and leaves us to ponder, "Why isn't that illegal?"

This is the story of Roy Pearson's $65 million pair of pants. Judge Pearson allegedly suffered some pretty serious harm when the pants he dropped off at the dry cleaner weren't ready on time. You can judge for yourself, but I wholeheartedly agree with these letters to the editor at the Washington Post. Needless to say, I don't think Judge Pearson is going to collect $65 million. I don't even think he'll win his case. If his abuse of judicial process doesn't subject him to serious sanctions, then he'll surely garner sufficient negative publicity to tarnish his reputation and perhaps ruin his career (for which this particular pair of pants supposedly was so important). I'd settle for an old-fashioned kick-in-the-pants for Judge Pearson.

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.

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.

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."

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.

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!

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.

The Worst Thing I've Ever Done

Sorry, I'm not going to tell you. Honestly, I don't even know what the worst thing is that I've ever done. (I'm sure my parents or my wife could name a few candidates, but I wish they wouldn't.) In any event, I don't want anyone to think any less of me or judge me by the negatives. There is more to me than any one bad thing. I trust that's a sentiment shared by many.

I represent people accused of bad things. Many of them have, shall we say, checkered pasts. But most all of them have positive qualities, too. They can be charming, friendly, compassionate, and even sympathetic. I confess, I actually like most of my clients, notwithstanding the bad things they may have done.

As Sister Helen Prejean reminds us, there is more to a man than the worst thing he's ever done. Unfortunately, that doesn't seem to be our society's creed. But we should no more expect others not to judge us by our worst acts than we should insist on uncompromising condemnation of people who have committed singular misdeeds. There is good in everyone, and everyone should be able to overcome their past. Save, of course, living down their good reputation (so says Oscar Wilde).

It's the Constitution, Stupid

New Orleans hasn't cornered the market on under-funded public defense. Apparently the Georgia system is struggling to get by on its budget funded by court fines and fees, and one particularly expensive case is threatening to break the bank. I feel their pain.

I'm all for keeping a tight watch on expenses. After all, the public tax payers should be entitled to have their money well spent. But it seems that at least one state legislator is missing the point. The Georgia State House Speaker protests that a judge is telling the legislature what it should be funding. The audacity! I suspect the offending judge was merely pointing to a little thing called the Constitution. And we know from our good friend Gideon that the State is responsible for paying for counsel when the defendant is too poor to pay for a lawyer himself. Justice isn't free.

The House Speaker apparently still complains that the system lacks sufficient "checks and balances to prevent an unelected judge from seizing control of the purse strings which elected lawmakers are charged with overseeing." No, again I think the blame goes to the Constitution. Sometimes democracy is an expensive proposition. (Where are the complaining legislators when it comes to the extraordinary resources spent prosecuting victimless crimes and silly political witch hunts?) Thankfully we don't have to leave everything to the prevailing winds of elected lawmakers.

The End of Trials

Trial by jury is one of the most sacrosanct and venerable concepts in our justice system. Indeed, jury trials have played a central role in civilized society at least since the time of Aristotle. Important trial safeguards are enshrined in our Bill of Rights. Most school children seem to appreciate the concept of having guilt or innocence decided by a jury of one's peers. While constant press coverage of high-profile trials and slick tv shows give the impression that jury trials remain the final arbiter of most defendants' guilt, the reality is that most defendants elect to forgo a trial altogether. And it's not because every guilty person suddenly has a come-to-Jesus awakening.

Perhaps the most significant factor is the scheme for doling out sentences. In this get-tough-on-crime era, even petty criminals face huge amounts of jail time. In Louisiana, a first time offender guilty of drug possession could get five years to think about his misdeeds. Of course, judges recognize the immense power they wield, and it is unlikely a first-time offender would be sent to jail for so long. Prosecutors and defense lawyers know that, too, and thus they usually negotiate a plea bargain. Thus, rather than go to trial, many defendants charged with a first offense will opt to plead guilty in exchange for probation and a suspended sentence: stay out of trouble during the probationary period, and you won't serve any time. The risks of going to trial and facing uncertainty in sentencing are simply too high.

For repeat offenders, the stakes are even higher. Under Louisiana's habitual offender statute, a person convicted as a two-time offender must be sentenced to a minimum of 50% of the statutory maximum, and the maximum allowable sentence is doubled. Thus, two-time drug user would face two and a half to ten years in jail. A third offense weighs heavier still, and a fourth offense results in a range of twenty years to life. (Louisiana has a traditional three-strikes law as well. Thus, for some crimes, even a third offense results in mandatory life in prison.)

No doubt, repeat offenders have a strong incentive to negotiate a favorable plea to avoid sentencing as a habitual offender. Needless to say, those who go to trial and lose don't get any favors. For someone with a record, even if truly innocent, the risks are simply too high for rolling the dice in the jury crap shoot at trial.

And that's just the problem. When only guilty people are forced to take pleas, saving the system the burden of trials, the system arguably is functioning as it should. But many defendants are innocent, or at least their guilt is in serious question, and juries are deprived of the opportunity to mediate the facts. That's a great disservice to our justice system. Juries not only determine facts in particular cases, but they act as checks on law enforcement. They keep the system honest by letting police know when they're overreaching (or by discrediting their testimony). They tell us when prosecutors have become persecutors (by over-charging cases). They tell us how much evidence is required before we send people off to jail. In short, they tell us what the limits of law enforcement should be.

Unfortunately, many innocent people have no choice but to take a plea to avoid the risk of sentencing after conviction. This is especially true for people who have criminal histories. It's natural to think, "once a criminal, always a criminal." Police, innocently or not, often work under this assumption and target felons for more arrests. Many of those defendants, however, are in fact innocent of the latest charges. But we'll never know because no one wants to roll the dice at trial when the stakes are so high.

Volunteers Be Gone?

Following Hurricane Katrina, the Louisiana Supreme Court put out a welcome mat for volunteer lawyers: The Court issued a special rule to allow out-of-state attorneys to represent, on a pro bono basis, indigent defendants facing criminal charges in Orleans Parish as long as a Louisiana attorney co-signs all pleadings and provides "oversight and supervision" of the volunteer. The evident purpose of this rule was to allow the underfunded Public Defenders' Office to draw on volunteers to help resuscitate the public defense system that was floundering post-Katrina. I and other volunteers have been operating under this rule for several months, essentially serving as adjunct public defenders. That may be about to change after the the Chief Judge of the Criminal Court ruled yesterday that out-of-state attorneys may not represent indigent defendants unless a Louisiana-licensed attorney is present for all court proceedings. Volunteers still may be welcome in spirit, but their value may be seriously diminished.

Having volunteer lawyers lightens the load for the full-time public defenders and enables the full-time staff to shift their efforts to other clients and matters. Requiring the regular public defenders to be present in the courtroom every time a volunteer appears for a hearing would diminish that value. Indeed, if the regular public defender has to be present anyway, one might say we should do away with the volunteers altogether.

I'm not bothered by having another lawyer present. Indeed, given my limited experience, I welcome the back-stop -- someone to grab the wheel if I'm veering off course and heading for a tree. But I don't think there is any need for a local lawyer to be present at every hearing. Nor do I think there is much need for local lawyers to hold the hands of more experienced out-of-state attorneys. After all, there is not a great deal of variation in criminal defense from one jurisdiction to the next. And as long as the local lawyers are providing "oversight and supervision," there should not be any concern that an experienced out-of-state lawyer will skip over important variations in the local practice. Most jurisdictions have "pro hac vice" rules that enable out-of-state lawyers to practice locally for limited number of cases under similar circumstances without requiring the local lawyer to be present at every hearing. While the Louisiana Supreme Court's rule in these circumstances does not limit the number of cases a volunteer can handle, it it not clear why the rule should be more onerous than the customary pro hac vice rules.

One could read the Chief Judge's ruling cynically to reflect a disdain for outsiders coming in and gumming up the "old way" of doing things. I very much doubt, however, that is fair and accurate. I think the judges generally appreciate the value of the volunteers, and I am confident that the judges are not interested in merely having local lawyers serve as ornaments or potted plants in the courtroom. But neither do the judges want to oversee moot courts for inexperienced out-of-staters, setting up instant grounds for appeal for dissatisfied defendants. (Of course, volunteers typically offer vigorous and thorough representation that over-extended public defenders may not be able to provide to every client.) In any case, the Chief Judge's ruling is being appealed, and I suspect this matter will be resolved to the satisfaction of everyone to ensure the adequate and effective representation of indigent defendants.

My Funny Valentine

The Feds announced that they are providing funds to establish a community domestic violence center in New Orleans. The center will provide shelter and centralized resources, such as counseling, medical care, and social services to victims of domestic abuse. The U.S. Department of Justice, along with the New Orleans Police and Justice Foundation, also has committed funding and resources to help re-open the Crime Lab in New Orleans. Keep it coming!

New Orleans' Iraq

New Orleans is under siege, or so it seems. The t.v. sound bites are as familiar as they are tired: Crime is brimming over, thugs control the streets, people don’t feel safe in their own homes. What was once verboten (and racist) – that law enforcement should focus on young black men – now seems the received wisdom. Indeed, the Sheriff in neighboring Jefferson Parish unabashedly and unapologetically suggests that targeting law enforcement at black people in white neighborhoods has helped dampen crime there. Perhaps there is proof to be found in the statistical pudding. It’s hard to overlook the fact that most murders here involve young black men (children?) killing other young black men, in what appear primarily to be turf disputes involving drugs. And the mushrooming murder rate seems only the trailing edge to a massive crime storm. Avoiding crime these days is a lot like dodging rain drops – you just hope you don’t get soaked in a downpour.

Of course, Sheriff Lee’s approach likely won’t so much control crime as merely displace it. More precisely, even if this approach can dampen the latest crime wave, it does nothing to address the root causes of crime, which means we’re likely to see another flare up in the future when we let our guard down. (Nor do I mean to suggest that the Sheriff could address that issue or should be held accountable in that regard.) And I’m not so sure that the community as a whole is in a privileged position to criticize the Sheriff on this point. At least if you’re judging by the latest march on City Hall – where throngs of mostly white citizens berated the Mayor and Police Superintendent with chants of “enough is enough” – you’d get the feeling that the public’s hysteria reflects not necessarily that there are too many murders (of course there are), but that those murders are now seeping into white neighborhoods. (The offending straw that broke the camel’s back seems to have been the apparently random murder of a white woman at 5am in her home in the Marigny, while her surviving husband was shot while clutching their young child.) One can’t help but think that the public’s reaction would have remained somewhat muted if all murders were business-as-usual, black-on-black, turf war disputes. The black community’s conspicuous low turnout for the march on City Hall arguably fuels that perception.

Our present crime control approach seems nothing more than a scheme to corral crime into certain areas. The question is where to corral it. In the past, most murders seemed localized to housing projects and other poor, and mostly black, parts of town. A client observed that the closing of most public housing in New Orleans may be animating the apparent crime diaspora. As that theory goes, because most public housing and many poorer neighborhoods remain largely uninhabited, the criminal element may be migrating to more affluent neighborhoods. No doubt, that view feeds off of a deep-seated cynicism (and racism), but perhaps there is something to it. After all, the public didn’t rise up and march on City Hall in years past (early 1990s?) when the murder rate here spiked, but most murders were of the black-on-black-in-the-projects variety. And thus Sheriff Lee’s approach may simply return us to the halcyon times when murders happened, but not in my literal back yard.

As one friend recently observed, this City’s (and probably most Cities') take on crime control – and really social problems in general – has been a lot like the war on terrorism: Let’s fight them over there (Iraq), rather than have to fight them here and everywhere. Much like the war in Iraq, however, that is an easy starting point, but it won’t be mistaken for a plan to address the problem. And we’ve never really had a plan, and certainly no urgency, for addressing the root cause of problems in poor areas and projects. If we are serious about getting crime under control, rather than merely displacing it, we have to put our might into disrupting the cycle of poverty that undeniably fuels crime. Otherwise, we may end up ceding our City to warring factions and spiraling violence.