Louisiana Atty. Gen. Charles C. Foti Jr. launched an investigation of the state's troubled indigent defense system Thursday, citing in particular New Orleans' plight since Hurricane Katrina.
Foti said he was opening the probe because of recent New Orleans court filings asserting the system was dysfunctional and because of "potential court rulings regarding the funding of indigent defense."
At a hearing Feb. 10 in New Orleans, Judge Arthur L. Hunter Jr. halted all publicly defended prosecutions in his section of the Orleans Parish Criminal District Court. He has asked several state legislators to come to his court in early March to answer questions about funding for the city's office for indigent defense.
At the Feb. 10 hearing, the director of the Orleans Parish indigent defense program, Tilden H. Greenbaum III, testified that his staff had been cut from 42 lawyers to six because of hurricane-related funding constraints. Traffic fines provide 75% of the office's $2.2-million annual budget, but those have evaporated since the storm, he said.
Louisiana is the only state that uses traffic fines as the main source of funding for indigent defense. The system has been criticized in a host of studies.
Hunter told lawyers Thursday that if the state did not provide more funding soon, he would have to release indigents who had gone months without representation, according to lawyers in his court at the time.
In an unusual formal policy statement Thursday, Hunter said it was "of utmost importance" that adequate funding be provided to New Orleans' indigent defense office "with deliberate speed ... because the United States Constitution and the Louisiana Constitution guarantee the right to effective assistance of counsel to indigent persons."
In the statement, Hunter also said that if the Legislature did not act, the court might have to take drastic measures to protect the rights of indigent defendants. "This is a Hurricane Katrina issue, and it behooves the legislative branch, executive branch [and] judicial branch ... for the sake of the people of Louisiana, to resolve this constitutional crisis within the criminal justice system in New Orleans," he said.
Hunter has appointed veteran New Orleans defense lawyer Richard C. Teissier as a special master to investigate the situation and make recommendations to the court. Teissier estimated that as many as 4,500 people had been "sitting in jail for up to six months and haven't seen a lawyer during that time."
This week, lawyers from the Atlanta-based Southern Center for Human Rights, who played a key role in changing Georgia's indigent system, have been in Louisiana interviewing inmates about their representation. The lawyers' findings are expected to be presented to Hunter and other New Orleans judges soon.
The Louisiana Legislature unanimously passed a resolution this month asking Congress for money to bail out the indigent defense system, even though such money is supposed to be used only for extraordinary costs, not normal operating expenses.
Two years ago, a detailed report from the National Legal Aid & Defender Assn. said Louisiana's system needed at least $55 million a year to function at a minimally acceptable level. At the time, the state was spending $31 million.
In his inquiry, Atty. Gen. Foti has issued subpoenas for information on 20 subjects, including the history and future of funds for indigent defense, and whether the state indigent defender board should be abolished.
The executive counsel of the Louisiana Public Defenders Assn., G. Paul Marx, said Foti had been "very helpful in addressing the Katrina disaster," but Marx questioned whether the attorney general's office had the statutory authority to investigate the state's indigent defense system.
Phyllis E. Mann, a leader of the Louisiana Assn. of Criminal Defense Lawyers, had similar reservations. "I do not think they have the authority to revamp the indigent defense system designed by the state Legislature," she said.
State Sen. Lydia P. Jackson of Shreveport, who co-wrote the resolution requesting federal funding, said she was "hoping the attorney general can discover a pot of money somewhere."
"We are at a point of crisis in the system," she said. "If there are funds not being used properly, I would like to be the first to know."
"The real problem" is that the system simply does not have enough money, she emphasized.