Public Interest

From Defenders To Defendants: An Update On The Orleans Public Defenders

This underfunded public defenders' office faces a fresh lawsuit.

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gavel scales of justiceWe return, once again, to the plight of Louisiana public defenders — and their indigent clients.

Way back last March, I noted that Louisiana’s state PD system was facing a $5.4 million shortfall, leading to layoffs, salary and benefit cuts, and ballooning caseloads.

Then in September, I wrote about Tina Peng, an attorney for the Orleans Public Defenders — the branch of the Louisiana PDs that operates in New Orleans — who highlighted the practical effects of PD underfunding in a Washington Post op-ed. In Peng’s opinion, the worst such effects were felt not by overworked public defenders but by the criminal defendants who failed to receive adequate representation. And my post commented on a natural consequence of that inadequate representation: lawsuits claiming Sixth Amendment violations (which can be very expensive).

Later in September, I covered another development in the New Orleans PD saga. Judge Arthur Hunter read Peng’s op-ed and ordered the head of the Orleans Public Defenders, Derwyn Bunton, to come to court and testify regarding his office’s ability to provide constitutionally adequate representation. Bunton showed up, but he asked for more time to raise money before giving a concrete answer to Judge Hunter’s question. The hearing was rescheduled for November.

And that’s where we left off. But a lot has happened in the interim.

First: that hearing did take place in November. At the hearing, deputy district defender Jee Park dropped what the local news described as a bombshell on the court: the Orleans Public Defenders requested that the court stop referring them indigent criminal defendants — at least until the organization obtained funding sufficient to offer adequate representation to their existing clients.

The news reports suggest that Judge Hunter wasn’t sure what to do about this. Would it be prudent to issue an order suspending all referrals to the PDs? Maybe the referral issue should be dealt with on a case-by-case basis? (And it’s worth noting, by the way, that Judge Hunter is not exactly one to shrink from controversy — his apparent hesitation says something.)

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But the Orleans Public Defenders offered an expert — Cardozo Law Professor Ellen Yaroshefsky — who testified that, based on the organization’s staffing levels and caseloads, newly referred clients would certainly be deprived of their Sixth Amendment right to counsel. In fact, Professor Yaroshefsky said, the Orleans Public Defenders’ current situation already crossed an ethical line. “This entire office is operating as a conflict of interest,” she said. “The lawyers here are compromising some clients in other to represent others.”

Despite this and additional testimony, the situation was left unresolved. At the end of the hearing, despite characterizing the PDs’ evidence as “compelling,” Judge Hunter declared that he was unable “to offer remedy at this time” — but he also said his response to the PDs’ request was without prejudice. Having come up empty in court, the organization announced on December 11th that, beginning in the new year, it would refuse new referrals.

Then, not shockingly, the new year arrived and the Orleans Public Defenders did in fact begin refusing new referrals.

And, also not shockingly, the Louisiana branch of the American Civil Liberties Union quickly followed with a lawsuit. The complaint, though styled as a Sixth Amendment (as well as Due Process and Equal Protection) action against Derwyn Bunton in his capacity as head of the Orleans Public Defenders, is really just another call for help. CityLab says “the real target is the Louisiana state legislature.” And even the Orleans Public Defenders have said, via press release, that “while this lawsuit is not necessarily welcomed, OPD welcomes reform.”

So, Louisiana state legislature: it’s time to pony up. Louisiana’s PD system is going to be dragged into compliance one way or another, and it’ll cost you either way. But if you appropriate enough money for the Orleans Public Defenders — and other public defenders across the state — to do their job now, rather than waiting for a court order, it might just save you millions in attorney fees.  

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And, of course, it never hurts to remember that you’ll be doing justice as well.

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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