Last month I wrote that some of the most effective public interest lawyers wear robes. And last week I wrote about New Orleans public defender Tina Peng’s Washington Post op-ed explaining how Louisiana’s PD funding crisis is possibly creating a systemic constitutional violation. This week the two topics converge, as a New Orleans judge with a history of trying to tackle tough problems is now wading into the Louisiana PD funding morass.
Regular readers will be familiar with the background: Louisiana PDs are facing a statewide $5.4 million shortfall. New Orleans is shouldering $1 million of that shortfall. For PDs statewide, there are layoffs, benefit cuts, hiring freezes, and, naturally, increased workloads for those attorneys who remain employed as PDs. In order to avoid layoffs, New Orleans’s PDs are being subjected to the double whammy of 4 weeks of unpaid furlough time and increased caseloads — meaning the time each attorney can spend on a given case will necessarily drop dramatically.
But these unfortunate realities don’t just affect the PDs who get laid off, or those who have to earn less while taking on more clients. Most of all, they hurt the criminal defendants who get sub-par representation simply as a function of low resources — not incompetent lawyers. In fact, as I’ve now discussed several times, situations like the one in New Orleans can amount to a deprivation of PD-represented defendants’ Sixth Amendment right to counsel.
So what’s to be done? Individual lawyers can write op-eds (or blog posts) to shine a light on the problem. Bar Associations can lobby for better PD funding mechanisms. Public interest organizations can bring lawsuits founded on Sixth Amendment violations to force improvements in PD funding.
And then there are judges.
In New Orleans, Judge Arthur Hunter read Peng’s op-ed and decided a response of some sort was in order. So he issued a subpoena requiring New Orleans’s chief PD, Derwyn Bunton, to show up at a hearing last Friday. The New Orleans Times-Picayune quoted Judge Hunter on the reason for the hearing: “I asked Derwyn to provide an answer to a simple question: Whether his office can provide constitutionally effective assistance of counsel to indigent defendants.”
Bunton did show up on Friday, but he deferred answering Judge Hunter’s question. According to the New Orleans Advocate, “Bunton said he wanted to let his pleas for more money play out with both the city and the Louisiana Public Defender Board before venting publicly. So Hunter reset the hearing for Nov. 18.” The Advocate article goes on to quote Bunton on his reasons for the deferral: “I don’t want to be premature. It’s like with Powerball. There’s always a chance.”
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How sad that PD Bunton’s reference to Powerball is actually apt — odds are that funding will remain scarce and that November 18 hearing will go forward.
And if it does, the results could be interesting. During a previous PD funding crisis in 2012, Judge Hunter “ordered some big names in New Orleans politics, media and legal circles to represent dozens of poor people left without free lawyers,” according to the Times-Picayune. It’s easy enough to see the downside of this — politicians and reporters who passed the bar but have no experience might not do a great job representing felony defendants. But, on the other hand, such a move would certainly grab the attention of the folks who hold the purse strings. Who knows what other creative moves Judge Hunter might consider?
Meanwhile, chief PD Bunton is distributing his proverbial eggs among several baskets — in addition to lobbying for more funding from the usual suspects, and keeping in his back pocket the offer from Judge Hunter to make his case in court, Bunton has also initiated a crowdfunding campaign seeking to raise $50,000. So if you want to kick the New Orleans PDs a little money pending the unlikely resolution of their financial woes, head on over here and do so.
Earlier: Life As A Public Defender In Louisiana
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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 [email protected].