August 3, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Orleans Chief Public Defender, Derwyn Bunton, who has taken a stand by refusing to take on defendants his office cannot adequately represent due to inadequate funding.
Q. You did your undergrad at San Diego State, where you majored in political science and wrote for the school paper, the Daily Aztec. What was the plan going in? Was poli sci a placeholder or a goal? Was law in the plans? Did you have political aspirations? And then there was the journalism, where you wrote a column about politics at a school Playboy magazine called “one of the top 10 party institutions” in America. Where were you going to be ten years later? And was SDSU really that big a party school?
A. I was fascinated by politics and the political process, so I chose political science as my major. The plan was to earn my degree and go to law school or graduate school (or both), so law was always in the plans. I wanted to be a lawyer. SDSU did (does) its fair share of partying, but SDSU is also the flagship institution for the California State University system – a leader in research with a strong teaching mission.
Q. From the left coast, you headed to NYU Law, where you worked in legal positions throughout law school. Did you go in planning to be a criminal defense lawyer? Did any of your job experiences, such as working for Dershowitz & Eiger, influence your choices? In the summer of ’97, you headed back west to clerk at the San Diego Federal Defenders office. Had you already decided that indigent defense was where you wanted to be? Your last job before graduating was with NYU’s renowned Brennan Center. By this time, you had a great deal of experience, far more than the typical law student. Was your future cast? Were there any areas of practice you also considered? Was there ever a prosecutor lurking inside you?
A. Each of my experiences before, during and after law school, shaped my future. I went to law school with three interests: community economic development, labor and employment and social/criminal justice.
NYU is an amazing place to study law. NYU’s resources allowed me to gain experience in every area for which I had an interest. Criminal justice and civil rights, however, sparked my passion and allowed me to perform authentic and meaningful work.
My goal, as law school was coming to an end, was to find a way to work so that the distance between who I am and what I do is as small as possible. Public defense and social justice work accomplished that goal for me. Prosecution did not.
Q. Coming out of NYU Law, you headed to New Orleans to work in the Juvenile Justice Project of Louisiana. Did you specifically seek juvenile defense? How did you end up in New Orleans, of all places? Were you thrown right into the trenches? Many defense lawyers find representing juveniles exceptionally painful. What was your experience in the trenches next to a child? Was it what you expected coming out of law school? Did you ever wonder what the point of it all was? Did you consider finding an easier way to spend your days?
A. I chose to work for the Juvenile Justice Project of Louisiana (JJPL) because I was excited about their organizational vision and mission for change. JJPL wanted to not just represent children in one of America’s most brutal juvenile justice systems, but wanted to change the system altogether – from representation to incarceration to rehabilitation.
They recruited at NYU Law; I interviewed; and JJPL hired me. I immediately became part of a team suing Louisiana due to their unconstitutional conditions of confinement for children – a suit the Department of Justice also joined.
Then for the next decade I represented children throughout the state. The work was difficult and emotional, but only strengthened my resolve and desire to do justice reform work while also representing the poor from at-risk and targeted communities.
Q. At the Juvenile Justice Project of Louisiana, you led the Post Disposition Project, designed to protect the constitutional rights of children. What gave rise to this project? What was happening within juvenile facilities that raised constitutional rights issues? Since the basic justification for incarcerating kids is to rehabilitate them so they can go on to lead productive lives, was that being accomplished? Is there any similarity between what you experienced in Louisiana juvenile facilities and what people are told, believe is happening?
A. The Post-Disposition Project (PDP) was negotiated as part of JJPL’s legal settlement with the state in our conditions case. What we found while monitoring the juvenile prisons and investigations was a real need for stronger individual representation of children in the juvenile justice system. We reviewed many files with adjudication errors and files where children were eligible for early release but had no lawyers working for them.
In addition, appellate representation was almost non-existent – a casualty of an under-funded public defender system. I (and JJPL) found this situation unconscionable, and of course, with access to justice a fantasy, the outcomes for children in Louisiana’s juvenile justice system were predictable terrible. Children were returning to the juvenile or adult criminal justice system at a rate of 65% to 70% before we sued.
I don’t know what the perception is today, but when we sued Louisiana in 1998, more than 2,000 children were in juvenile prisons around the state. When Louisiana was released from the suit, fewer than 400 children remained.
Q. You rose to the position of legal director, then associate director, of the Juvenile Justice Project. Was this a conscious decision to leave the trenches and go into management? Did you have goals you wanted to achieve as a director? As this was a non-profit, were you also involved in fund-raising? What were the demands of trying to fund juvenile defense? Was there money available? Were there donors interested in supporting the work? Was the Project surviving hand to mouth? Was this good enough to provide effective representation to children?
A. What I learned at JJPL was a model for reform. I learned how to be a reform lawyer, and moving through varying positions of leadership allowed me to strengthen those skills – designing, implementing and assessing reform strategies. Of course, accepting more and more responsibility ultimately meant responsibility for fundraising as well as managing projects and grants.
Funders were very generous, interested and excited to support innovative programs for children in the juvenile justice system, but as an organizational leader you still have to cultivate relationships, generate ideas and develop a successful reputation in order to receive funding. JJPL maintained funding at levels allowing for excellent and innovative representation and reform.
I think today, things are tougher. The Great Recession made funding scarce for many doing social justice work. Additionally, shifts in priorities for some funders made support scarcer for juvenile justice work recently.
Q. In August, 2005, Hurricane Katrina struck New Orleans. Beyond the physical destruction and personal suffering, what was the impact on the legal system? Between widely circulated images of looting and what appeared to be lawlessness, how did the police respond? Was there a viable legal system? Did anyone care about the rights of juvenile defendants? Did anyone care about much of anything beyond surviving? In the aftermath, when stories like the Danziger Bridge killings became known, it’s hard to imagine a more dangerous place than New Orleans post-Katrina. Was it that horrible?
A. I’m biased. New Orleans is home, and I never fell out of love with my city. At the same time, we New Orleanians were all a little afraid our city (as we knew it) may be gone forever.
The status of our legal system immediately post-Katrina provided no comfort or reassurance otherwise. The New Orleans criminal justice system was in full collapse. The storm literally and figurative laid bare the entire system. Command and control structures for the New Orleans Police Department broke down, resulting in multiple high-profile federal prosecutions police officers.
Probably worst hit was the public defender system. Depending largely on court fines and fees, the public defender system immediately shut down. Fueling the criminal justice system on fines, fees and costs from poor people caught in the system yields inadequate, unpredictable and unreliable revenues. When the city is evacuated with only a few able to enter, the user-pay system yields no revenue.
Q. In January, 2009, you took command of the Orleans Public Defenders Office, already regarded as one of the hardest working, worst funded, indigent defenders in the country, facing off against a prosecutor’s office with perpetual integrity issues. Did you seek this job or was it thrust upon you? Did you go in realizing the financial problems facing OPD? Was it worse than you expected? What was it like leading public defenders carrying untenable caseloads? Did you ask yourself, “what have I gotten myself into?”
A. I applied for the job of Chief Defender in Orleans, hoping I could be part of an access-to-justice revolution in our criminal justice system. Perhaps more ambitious, I believed I could help add more fairness and justice into an unjust system aimed at largely poor people of color.
Secondarily, the Orleans Public Defenders Office (OPD) was a challenge where I felt I could apply the lessons I learned as a reform lawyer. The reform work and team that turned a 2,000-bed juvenile system into a 400-bed juvenile system gave me hope I could put together a team and achieve similar success at OPD.
I knew all the struggles facing OPD, indeed, my previous work required study and participation in many criminal justice reform discussions. OPD is today an award-winning public defender office, but when I started work in 2009, such an outcome was far from certain.
It was and remains incredibly difficult work. OPD has to navigate and survive resource shortages and political battles – all while representing clients and ensuring their rights are vindicated. At times, I feel I am constantly moving from crisis to crisis with little time in between to actually manage and grow the organization.
The OPD staff is my salvation. It is easy to lead gifted, courageous mission-driven staff. Without our staff, I don’t think I could conjure up the nerve to act with integrity when it comes to many organizational decisions.
Q. The conundrum facing your office, as you explained in a New York Times op-ed in February, 2016, was that your lawyers could no longer handle the caseload, could no longer provide adequate representation, and so you made the decision to just say no, what might be called the “nuclear option.” Since no public defender wants to leave a poor person standing alone before a court, what drove you to this extreme? Had you not made this call, would your lawyers have been reduced to warm bodies besides defendants whose names, whose cases, they didn’t know? Where is the line where you reach the point that you can’t take on another case? How does a person whose life has been dedicated to indigent defense let a poor defendant stand before court alone?
A. For the past 9 years, OPD has worked to strengthen its practice. We are committed to operating within the “triangle of defense:” on one side of the triangle are constitutional mandates, on another side are ethical requirements and on the other side are professional standards. Our cases have to fit in that triangle, and to the extent our cases don’t fit in the triangle, our representation is compromised, ineffective or non-existent.
For the past 7 years of my tenure, OPD has worked with stakeholders to strengthen structure and funding, yet we remain under-resourced. At the same time, workloads continued to climb. I came to two conclusions. One, the evolution and improvement of the office was not just stagnant but trending downward with no real end in sight. Two, the access-to-justice revolution I referred to earlier was not going to happen (and I was going to lose the confidence of my staff, clients and client community) without taking some meaningful action.
I chose to begin refusing cases after reading about Joseph Allen. Mr. Allen is a 32 year-old African-American new father who was arrested and held on a $1.7 million bond after shootings last November at Bunny Friend Park, here in New Orleans, left 17 people wounded. He immediately asserted his innocence, but police said an eyewitness identified him as a shooter. Mr. Allen’s family hired a private lawyer who went to Houston and located the video footage of Mr. Allen shopping with his girlfriend at the very time of the shooting. The charges were dropped.
Reading about the Allen case, I realized my office could not guarantee the timely retrieval of this important evidence before it was erased or otherwise destroyed. This would have left an innocent man to face trial for his life for what was labeled an act of “domestic terror” by the mayor of New Orleans. I did not want my lawyers or my office complicit in that kind of injustice.
Q. While some see the “nuclear option” as an easy fix, what about the role private lawyers play in filling the gap for a pittance by enabling the failure to fund indigent defense? If they’re just serving as poorly paid warm bodies, are they undermining the effort to obtain meaningful indigent defense funding? What do you say to those lawyers who put a few bucks ahead of the good of their clients? Will there always be lawyers to make this fight harder? Is there any way to prevent unethical lawyers from undermining the efforts to force the system to take Gideon seriously?
A. The private bar needs to get more involved, not just to take cases but to help reshape our system. Many private lawyers and law firms have resources to apply to this problem. Specifically, private lawyers ought to be questioning a user-pay criminal justice system that relies on the private bar to handle cases because decision makers do not want to respect or acknowledge the 6th Amendment to the U.S. Constitution.
At the same time, when private lawyers “put a few bucks ahead of the good of their clients,” those lawyers undermine the reform effort. More obscene, however, lawyers who practice in this fashion are harming poor people – irreparably at times. The best way to insure against lawyers operating as “paid warm bodies” is to first, maintain a fully-resourced public defender office that takes seriously the obligation of public defenders to protect innocence, defend the Constitution and demand fairness and justice throughout the criminal justice system. Second, judges and practitioners of good faith need to take leadership roles calling out unscrupulous practices and providing input for solutions.
Q. Following your decision to refuse cases beyond the capacity of your office to handle, you were sued by the ACLU. Was this a “friendly” suit, another laboring oar in trying to compel Louisiana to change its funding methods, or do whatever had to be done to fund indigent defense in Orleans Parish? While the suit produced some beneficial individual outcomes, did it have any success at forcing the state to comply with its constitutional obligations? Was the nuclear option the right decision? Will it change the way your office is funded? Is there any method, short of politicians actually wanting to, to obtain adequate funding to meet the constitutional mandate of Gideon? We’re now 50 years post-Gideon, and you’re still fighting the battle. What will it take to win the war?
A. I believe the best and longest-lasting change comes at the legislative level. So ultimately the best solution is the one where OPD and other system stakeholders and decision makers reform our user-pay criminal justice system in Louisiana. At the same time, activists often assert power concedes nothing without a demand. This is also true, and many times litigation serves as the demand upon the system.
The ACLU lawsuit is not so much friendly as it is unsurprising, and refusing cases was never viewed as the nuclear option at OPD so much as it was viewed as the only option faithful to the Constitution, ethics and professional standards. Since OPD began refusing cases, we’ve received increased support and resources at the state and local level.
OPD remains underfunded, however. In the end, I believe victory will come with a court order and the slam of a federal judge’s gavel or with the stroke of the Louisiana Governor’s pen after the gavel slams to mark the close of the legislative session. Only time will tell.