The conundrum is one that no public defender wants to admit exists. Not that they don’t know it exists, but they just don’t want to admit it, because it’s contrary to every sense of duty that pulses through their being. They are there to help the indigent, to be their protectors, and the very idea of turning a poor defendant away is anathema.
But, as is clear from a cold, detached perspective, there is no other choice when society doesn’t carry its responsibility, and shifts it onto the public defenders. When there is no good option, their duty is to select the bad option.
Claiming that its staff is too undermanned and overworked to provide constitutionally adequate legal defense to indigent clients, the Orleans Parish Public Defenders office on Friday (Nov. 20) asked a judge to stop appointing new criminal cases to its lawyers “as soon as possible.”
Deputy District Defender Jee Park made the bombshell request before Judge Arthur Hunter, who convened a hearing to examine the public defenders’ plight.
The numbers were overwhelming. Cardozo Law School ethics prof Ellen Yaroshefsky explained:
Yaroshefsky said Orleans public defenders are buckling under caseloads two to three times heavier than the nationally recognized standard to provide constitutional and ethically adequate legal defense. Bunton said unchecked attrition has withered his staff to eight investigators and 53 licensed lawyers, including 34 “line attorneys.” The office handled nearly 10,000 misdemeanor and 8,000 felony cases in the last fiscal year, he said, using lawyers working an average of 60-65 hours per week.
As a result, it had become a “plea mill.”
I believe this entire office is operating as a conflict of interest. The lawyers here are compromising some clients in other to represent others. They make a decision to triage, and triage is a conflict of interest. This is a problem now that is a judicial problem, and I believe needs to be dealt with on that level.”
While it’s the PD’s job to represent the indigent defendants assigned to its care, it’s the judge’s job to assure that every defendant receives effective assistance of counsel. If the PD is precluded from doing its job, then it constitutes a constitutional deprivation. When that happens, the responsibility falls to the court to fix it.
The initial reaction is that the public defender’s budget and burden ought to be contrasted with the prosecution, and the numbers are offered:
Bunton and Louisiana State Public Defender James “Jay” Dixon repeated testimony they gave Nov. 12 at a New Orleans City Council budget hearing, saying the office’s $6 million operating budget was about half that of DA Cannizzaro’s office, which has more than 80 attorneys and around 30 investigators helping prepare cases.
“I’m not saying the district attorney doesn’t need what he has,” Bunton told Hunter. “I’m just saying I need more for my office.”
But it’s not just intramural squabbling over the budget, and doing so misses the point. The point is that the Orleans Parish Public Defender, despite all efforts to provide competent representation to its clients, cannot do so anymore. And so, the problem demands judicial intervention to protect the constitutional rights of the poor.
Yaroshefsky told Hunter that is exactly what the public defenders must do. Otherwise, she said, the courthouse at Tulane and Broad risks becoming nothing more than “a plea mill,” where defendants find no recourse but to enter guilty pleas at arraignments “without even the most basic level of investigation and counsel” by their public attorneys.
“My recommendation is precisely what they’re requesting here, which is not to take further cases,” she told Hunter. “You’re not operating a justice system here. You’re operating a processing system.”
Whenever the issue of underfunding, under-provisioning, public defense comes up, the quest for answers invariably goes off the rails. But the poor must have lawyers, advocates for the poor say. But aren’t they better off with an overworked lawyer than none? How can you just abandon them?
There are answers. They’re just not palatable because it means that people will suffer. But Ellen is exactly right, and enabling an unconstitutional deprivation of rights not only isn’t the best solution, but it’s not a constitutional solution.
As was the response to Orleans Parish public defender Tina Peng, who admitted she provided ineffective assistance of counsel, the first level of answer is for the office to say “no,” to stop taking defendants who could not be competently represented. The second level was that individual attorneys say “no,” as they get no free ethical pass on their duty of competent representation. It’s a painful solution, as it puts a PD out of a job and leaves an indigent defendant unrepresented, but it is the solution the law demands of them.
Now as to Judge Hunter, that’s a different matter.
While both the judge and public attorneys seemed in agreement about the need for a reduced caseload, neither side seemed eager to be assigned responsibility for the potential chaos that could ensue.
“I’ve done my part,” Hunter said in apparent reference to staging the hearing. “Now it’s up to you to do your part. I don’t want to do your part, because I like to stay in my lane.”
The pushback is whether the PD should refuse cases on an individualized basis or be granted a blanket ruling. The approach shifts the burden between the court and the PD; if refusal is on a case by case basis, there will be no systemic reaction, and then Hunter won’t be constrained to deal with the overarching constitutional deprivation. In other words, he gets a free pass on making the awful decision he’s facing.
And what are Judge Hunter’s options? It’s likely ultra vires under the separation of powers doctrine that he can order funding to be increased to levels adequate to hire sufficient line lawyers to provide constitutionally mandated representation. He can’t order the legislature to fund, or allocate sufficient funds, to satisfy the needs of the defense.
But what he can do, and this is where the ugliness lies, is dismiss all prosecutions against indigent defendants for whom the right to effective representation is denied. If we, meaning society, can’t provide them with their constitutional rights, then the prosecution doesn’t get to prosecute them. And so bad dudes, as well as not so bad dudes and innocent dudes, walk.
And everybody blames the judge who made the hard decision, which is the last thing a judge wants. He didn’t ask for this problem, but he knows he’ll be blamed for the harsh solution. And who could have seen this coming on that happy day when he was handed the robe of omnipotence that allows a judge only to make happy decisions?
When a nation functions based upon a Constitution, hard choices are sometimes required or functioning will cease. This should have happened a long time ago in Orleans Parish (and plenty of other places), but it didn’t happen until now. The Public Defender made the only choice available, painful as it may be.
Now it’s time for Judge Hunter to make the only choice available to him. Either enforce the Constitution, and take the public hit that comes with the job, or give back the robe. And as for the public, who doesn’t want to pay more in taxes to fund a constitutional mandate, or lose some perk by reallocating funds from a statue of Bobby Jindal to public defense, too fucking bad. That’s the price of the Constitution, the same one you rely on when it’s good for you.
Update: Ellen Yaroshefsky pointed me to a law review article by Martin Guggenheim, explaining the separation of powers issue arising from allowing the prosecution to do its job while depriving the necessary funding for indigent defense. Without the latter, the courts are deprived of the ability to do its job by the legislature’s failure to adequately fund. Interesting stuff.