This is the first in a series of articles investigating the failed promise of Gideon v. Wainwright. It was reported in partnership with the Investigative Fund of the Nation Institute, with support from The Puffin Foundation.
On April 18, 2011, New Orleans police arrested Clarence Jones, a 41-year-old black man. Clarence contends that he was walking with his cousin Keitha Hyde, running some errands around 11:30 am, when he ducked into an alley to relieve himself. “It was just an empty house, so I went in the backyard out of sight,” he says, talking to me via phone from jail—and when cops turned the corner, he looked guilty. But police contend that Clarence was climbing out a window with pliers in his left hand, apparently scrapping for metal or copper wiring in the gutted building. The cops arrested him and his cousin and took them to the Orleans Parish Prison. On May 13, nearly a month later, Clarence finally appeared before a magistrate in Orleans Parish Criminal Court, who arraigned him on the charge—simple burglary—and set his bail at $10,000 (before raising it four days later to $20,000).
More than sixteen months later, Clarence Jones is still in jail waiting for an attorney to be assigned to represent him. “It’s been hell back here,” he says, explaining that he is living, along with approximately 400 other prisoners, in oversized tents that fill the prison grounds. In the aftermath of Katrina, which flooded huge swaths of the massive Orleans Parish Prison seven years ago, circus-style tents were erected to “temporarily” house the inmates. Today, the tents are still housing prisoners on a patch of barren ground in the middle of the city.
Even worse, the Orleans Parish Prison—already notoriously violent—veered out of control as Jones languished there. Things got so bad that the US Marshals Service pulled its prisoners from the facility in March 2012. Then the Justice Department sent a letter to the New Orleans sheriff in April citing “alarming conditions” in the “violent and dangerous” prison. The detailed list of constitutional violations runs twenty-one pages. Clarence Jones puts it simply: “It’s like we animals. They’re just packing more and more people in. They got us packed to capacity. Lots of us have no attorney. Can’t do nothing but sit back here. We’re just stuck.”
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As an impoverished, incarcerated defendant in a criminal case, Clarence has a guaranteed right to free legal counsel. But in Louisiana, such rights are routinely flouted. Indeed, Clarence is one of 230 people sitting in limbo in the Orleans Parish Prison this summer after a $2 million budget shortfall forced the Orleans Parish public defender’s office to lay off twenty-seven employees, twenty-one of them lawyers. Hundreds more defendants are out on bond, trying to make sense of the court documents being sent to them and wondering whether they’ll ever be assigned a lawyer to help. As the post-Katrina federal dollars dry up and the fiscal crisis forces drastic budget cuts at the state and local levels, one of the areas hardest hit in New Orleans—and in the nation at large—has been public defender offices. When money gets tight, the lawyers charged with protecting the rights of the poor in criminal cases are considered expendable.
Whether public defenders are funded by the state, county, city or some combination thereof, governments across the country are sacrificing lawyers for the poor and putting the constitutionally guaranteed right to counsel at risk. US Attorney General Eric Holder decried the indigent defense “crisis” facing the nation when he spoke to the American Bar Association in February, asserting that programs across the country were “underfunded and understaffed.” Citing “insufficient resources, overwhelming caseloads, and inadequate oversight,” he worried about a breakdown: “Far too many public defender systems lack the basic tools they need to function properly.”
Strapped public defender offices are throwing their hands up in despair. This past July, the Missouri Supreme Court backed public defenders in the state who refused to accept new clients because their office was woefully underfunded. The lawyers complained that their caseloads had swelled to such an extent that they could no longer do a good job for their existing clients. Public defenders in Missouri represent 80 percent of the state’s criminal defendants, which in 2011 numbered 82,896, yet they’re being forced to walk away from people who desperately need a lawyer.
Something very similar happened in New Orleans. Squeezed by budget shortfalls, Chief District Defender Derwyn Bunton announced that he was laying off nearly a third of his lawyers. Bunton cut the entire staff of his conflicts division, the department responsible for representing additional defendants in cases with more than one person charged. (An example of a conflicts division case: a liquor store is robbed by two people and the cashier is shot, then each of the men points to the other as the shooter; they’ll need two separate lawyers.) As a result, a slew of people suddenly lost their lawyers.
If these conflicts division defendants aren’t provided with an attorney and a “speedy trial” can’t proceed, by law they ought to be released from prison. But most of them aren’t released, despite this clear violation of their constitutional rights. Why? For several reasons. First, it’s a Catch-22 for the jailed defendants: most of them need a lawyer to fully grasp how their rights are being violated and help them make that argument in court. Second, there is some linguistic fudging going on: it’s not that they’re being denied representation; these defendants are simply “on a wait list” for pro bono representation. (Since February 2012, the number of defendants on the pro bono wait list has been as high as 543.) Third, due to quirks in Louisiana law, folks can be held up to four months (depending on the alleged crime) before the district attorney decides whether or not to pursue the case. It’s possible that some particularly proactive judge could step in and start setting these jailed defendants free—but it had better be someone who doesn’t mind losing the next election for being “soft” on crime.
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On June 11, 2012, I spoke by phone to Willie Cheneau Jr., a 32-year-old unemployed handyman who’d been sitting in Orleans Parish Prison for nearly two months, ever since his arrest for possession of a nickel bag of marijuana on April 24. The fact that this was his second arrest for possession bumped the charge up from a misdemeanor to a felony. Although he is very poor and qualifies for a public defender, Willie had no attorney assigned to represent him. His friend had been picked up in the same bust and merited a public defender, so Willie’s case was relegated to the now-defunct conflicts division. The judge set Willie’s bond at $1,000; to bail him out, someone would have to pay 13 percent plus fees, or $180.
Willie is single and had been living with his mother. When she was contacted by a bail bondsman to show up in court with the $180, his mom refused. She was mad at her son for smoking pot, the latest in a list of screw-ups. She figured he needed to get his life together. “She tired,” Willie explains. “She tired of me. She’s turning 50, all her children are grown. She’s been raising kids since she was 16, and she says, ‘Y’all grown—now I’m going to live my life.’” So he isn’t angry with her for not coming up with the $180 bail, but he desperately wants out of the Orleans Parish Prison, where he’s housed in a tent with eighty-eight other inmates. “It ain’t no place to be,” he says. “There’s a guy in here trying to see the nurse. He hasn’t eaten in eight days, coming down off of heroin. They won’t medicate him. Just stick him in here and make him go cold turkey.”
Willie doesn’t deny that he had the weed or pretend that he hasn’t been in trouble before. (As a teen, he was convicted of stealing a car and then, a few years later, on a burglary charge.) But he doesn’t understand why he should sit in jail for two months without being able to talk to a lawyer. He’d like to plead guilty to the marijuana charge—but he can’t even do that without a lawyer to represent him and get him into court.
Willie’s pretty typical of the people who flood the public defender’s office, and of the folks waiting for attorneys to represent them. But his plight doesn’t generate a lot of sympathy.
Chief public defender Bunton has tried, but it’s hard to rally support for the program. The state is funding 53 percent of New Orleans’s budget for public defense, while the city pays 1 percent. “And the rest we pray for,” Bunton says, explaining that the remainder of the budget for the forty-seven-person office depends on traffic tickets and court fees or fines from the mostly poor folks processed by the courts here—a practice not unique to New Orleans, but one that breeds instability. For example, until Hurricane Katrina, the system relied almost exclusively on traffic fines; but when the city emptied on the heels of the storm—and the cops, with bigger problems, ceased ticketing altogether—funding for indigent defense completely dried up, public defenders quit because they couldn’t get paid, and the whole criminal justice system ground to a halt. In the aftermath of the disaster, the federal government stepped in to help. But that money has since run out.
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Today, public defenders in the city represent more than 28,990 criminal defendants each year. But even as the 2012 Orleans Parish public defender’s budget shrank from $9.5 million to $7 million, there was an uptick in the number of cases prosecuted by the local district attorney: 30 percent more felonies alone than the preceding year (arrests during the same period held steady). The district attorney’s budget—$14 million—is far larger than the public defender’s $7 million, giving prosecutors a serious manpower advantage in pursuing their cases. Here in New Orleans, the national economic crisis, the local public defender budget cuts and a new super-aggressive Orleans Parish district attorney have produced a perfect storm of trouble.
It was in this desperate context that, in February 2012, Orleans Parish Criminal District Judge Arthur Hunter took the radical step of appointing a collection of high-profile lawyers to represent thirty-two criminal defendants pro bono in his courtroom. These defendants were among the 543 people who were left without attorneys to represent them on the heels of the public defender layoffs. The judge, insisting that he was merely acting to appoint lawyers in this “constitutional emergency,” named state legislators, the head of the local crime board and other high-powered attorneys—whether or not they had ever practiced criminal law.
Democratic State Senator Karen Peterson learned that she had a client named Kayla Brignac, 22, who’d been charged with possession of marijuana and alprazolam and possession with intent to distribute hydrocodone. She quickly filed a motion to withdraw from the case. “I’ve never, ever appeared or represented anyone in criminal court,” she told the Times-Picayune in February. “I practice commercial transactions.”
Many of those asked to take on these cases pro bono are attorneys at big law firms with expertise in civil suits, not criminal cases. Some of these private attorneys admit to being out of their depth—and several have contacted Katherine Mattes at Tulane University’s law clinic for advice and assistance. “Having tax attorneys and property lawyers tackle criminal cases is far from ideal,” Mattes says. “You don’t ask the cardiologist to do your brain surgery.”
Other judges in the city have asked laid-off public defenders to remain on their cases. But these are folks who are scraping by, having been laid off with only two weeks’ notice from a job where the annual salary was in the $40,000 to $60,000 range. It’s fair to wonder how much work someone in that situation will do when they’re ordered to defend a client without pay. (The laid-off lawyers I spoke with were ethical professionals deeply committed to their work; one, who consented to be interviewed on the condition that I not use his name, says he’s remained on several cases at the judge’s request. “I can’t afford to work for free,” he says. “But whether I’m rehired or working as a private attorney, I’m likely to be arguing a case in that judge’s courtroom in the future. I don’t want to burn any bridges with him.”)
Norris Henderson, founder and director of the New Orleans–based advocacy group Voice of the Ex-Offender (VOTE) and a board member of the re-entry program Resurrection After Exoneration, insists that this breakdown in public defender services threatens the criminal justice system as a whole. “If you’re sent to battle with 500 soldiers and find out you need 5,000, you’re going to take on a lot of casualties,” Henderson says. “You simply don’t have the same resources the other side has.”
Then, too, the strength or weakness of a public defender system has broad ramifications beyond the impact on people who might be wrongly convicted and spend years of their life behind bars. Tulane’s Mattes calls it the “trickle-down theory of community safety.” It’s hard to measure such things, but the logic makes sense, especially when considering the social consequences of radical breakdowns in the courts. (Think Mexico, where the failure of the justice system has led to widespread corruption and broader social disorder.) As Mattes explains, “The public defender system is one of the most important public safety systems we have. A strong public defender who challenges the prosecutor, ensuring that [he] can make his case, forces the prosecutor to make sure that the police are investigating and making solid arrests based on evidence, not bias, attitude or laziness.” Mattes concludes: “I think it is essential for the public to understand this relationship between effective, well-funded public defense systems and their own safety.”
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The case of Clarence Jones, the New Orleans man accused of burglary, is complicated but instructive. At his May 17 arraignment—almost a month after he’d been arrested—the judge agreed with Clarence’s assertion that he was indigent and qualified for a public defender. (Clarence works as a day laborer in construction, mostly with hazardous materials—including, in the aftermath of Katrina, such things as mold remediation and lead paint and asbestos removal. At the time of his arrest, he was out of work and qualified for food stamps.) Because his co-defendant in the case had already secured a lawyer from the public defender’s office, Clarence was appointed someone from the conflicts division, LaShanda Webb.
Then, on June 27, 2011, Clarence was sent from the jail to the courthouse for a preliminary hearing. But his attorney, likely busy in another courtroom, never showed up. The hearing was rescheduled for July 11. Clarence’s lawyer and a police officer showed up for that one, and probable cause was found for the burglary charge. The judge found no probable cause for Clarence’s cousin, Keitha Hyde, and reduced her charge to trespassing. A trial was scheduled for July 25.
On July 25, the state asked for a postponement. The court granted the request and set a new trial date, September 22. On September 22, the court docket says simply: “Defendant, Clarence Jones Jr did not appear for trial. Defendant in custody and not brought into court.” This would become something of a refrain in the records; Clarence has lost track of the number of times the jail neglected to bring him to court or, having transported him to the building, left him sitting in the “docks,” a holding pen for inmates waiting to be brought by sheriff’s deputies into their respective courtrooms. One public defender insider observed mildly that such snafus were “not completely uncommon.” In Clarence’s case, this happened at least eight times in sixteen months—and since a trial cannot go forward without the defendant in the courtroom, the delays piled up.
Meanwhile, Clarence’s attorney also failed to show up on September 22. The judge postponed the trial, and a hearing was set for September 29—at which point the judge set a new trial date of December 7. On December 7, she set a new date for a pretrial conference on December 12. On that day, Clarence had a newly appointed attorney, Leigh Ann Rood, show up in court on his behalf: unbeknownst to him, his original lawyer, Webb, had left her job at the public defender’s office. Clarence says Rood never met with him. Clarence’s trial was rescheduled for March 1—but by then, Rood had become a casualty of the mass layoffs at the public defender’s office. She lost her job, and Clarence became one of the 543 indigent defendants in the city of New Orleans who were suddenly without a lawyer, people charged with everything from marijuana possession to murder.
A year passed, slowly.
Clarence spent it in the Orleans Parish Prison tents. “I never been appointed another lawyer,” he told me in June. “They call me to court, I sit back in the docks, and they never let me in.” He tried to educate himself on the law: reading some books from the prison library, talking to other inmates and doing some seat-of-the-pants legal work on his own behalf. “I’m not the only one back here don’t have a lawyer,” he says. “We get law books, so I read a few pages to see what fits my case.” He tells me that he filed a motion for “discovery and inspection” to see what kind of evidence might be introduced during the trial, as well as a motion to “squash” (meaning quash) based on a violation of the Louisiana Code of Criminal Procedure, which says he has the right to a speedy trial. And while Clarence may be a bit off on the lingo, he’s correct on the essence: “The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody….” Clarence is doing the best he can, but after spending so many months in jail, he is growing discouraged and starting to wonder if he’ll ever get out. “I think it sucks,” he says. “I think if I had an attorney, I would have been home.”
Not that Clarence Jones is an angel. Indeed, he’s been arrested five times in his life and convicted twice: once in March 2004 for a misdemeanor (possession of marijuana) and a second time in May 2004 for a felony (distribution of marijuana). It’s not inconceivable that he did attempt a burglary and is lying about what he was doing in that alley. The point is, who knows? (I personally had to consult three local attorneys to “translate” the docket master and comprehend the loopy history of his case.)
Almost fifty years ago, an indigent man who shared the same first name—Clarence—and the same charge (he was accused of burglarizing a pool hall in Panama City, Florida) helped establish the right to counsel in the precedent-setting Supreme Court decision Gideon v. Wainwright. Like Clarence Jones, Clarence Earl Gideon didn’t have a lawyer and wrote to the court himself. “Petitioner can not make any pretense at being able to answer the learned Attorney General of the State of Florida because the petitioner is not a attorney or versed in law nor does not have the law books to copy down the decisions of this Court. But the petitioner knows there is many of them,” Gideon wrote to the US Supreme Court in April 1962 from his jail cell. He continued: “It makes no difference how old I am or what color I am or what church I belong too if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused. All countrys try to give there Citizens a fair trial and see to it that they have counsel.”
In March 1963, the US Supreme Court agreed. Writing for the majority, Justice Hugo Black stated the obvious: “Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Echoing Clarence Earl Gideon, Black further insisted: “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”
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Postscript: As this article went to press, Willie Cheneau was finally appointed a lawyer, who promptly got his charge reduced from a felony to a misdemeanor; Willie pleaded guilty to possession of marijuana and was released within two days—after spending two months in jail. Clarence Jones finally was appointed a pro bono attorney who specializes in tort, product liability, construction and insurance law. The attorney, Kirk Gasperecz, said that he was already “up to his armpits in alligators” at work, but nonetheless agreed to take Clarence’s case when a local judge told him Clarence had been sitting in jail for over a year. Gasperecz says he will work closely with colleagues who have criminal experience to get Clarence out of prison.
Also, the Orleans Parish public defender’s conflicts division was revived in August, but is struggling along with only three attorneys. As of press time, the number of defendants on the wait list for pro bono representation was down to seventeen.