Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
With no plan in sight to pay for legal defense for the indigent, state district attorneys are now labeling lawyers "greedy anarchists" for pushing back.
Louisiana state prosecutors have not replied kindly to the private lawyers who asked New Orleans courts last month to fund their representation of poor criminal defendants, or else free those defendants from custody.
New Orleans Assistant District Attorney David S. Pipes wrote on behalf of Louisiana in response to the lawyers’ request:
What is actually before this court is whether a private attorney’s right to a check should trump the defendant and the public’s right to the quick, equal, and impartial administration of justice. And quite frankly, that decision should not be one before this court at all. Whether or not a private attorney defends indigent men and women should not depend on whether that attorney gets paid. The rules of professional conduct and for that matter basic humanity would frown on anyone walking away from someone who needed help simply because they would not profit from doing the work of their chosen profession.
Pipes essentially called the lawyers gold-diggers, which is ludicrous given that these lawyers have been assigned to clients who don’t have enough money to afford attorneys on their own. The state’s inaction on this issue has been a mess: A New Orleans court started handing cases to several private lawyers after the city’s public defenders office began withdrawing from them in January due to the state’s lack of funding for these services. But Pipes minimized the funding crisis, writing in his letter:
It is not for the District Attorney to say whether this “crisis” is a manufactured stunt intended for political effect, a symptom of gross mismanagement on all levels of state government, or an unfortunate side effect of our current economic climate. Nevertheless, the District Attorney is compelled to seek justice for all people, and must ask this Court to side with the defendants and victims who are hoping to have their cases heard, and not the private attorneys who are hoping for a paycheck.
The private attorneys in question replied to the state on April 6 that the reason they need funding is because they’re trying to prevent innocent people from going to jail. The lawyers reminded the state, in a filing with the court, of the story of Glenn Ford as an example of what happens when poor defendants don’t get adequate defense. Ford, who was profiled by Andrew Cohen for The Atlantic in 2014, spent 30 years in prison after being falsely convicted for murder. For his 1984 trial, Ford’s novice lawyers didn’t have enough money to hire experts and investigators to help prove his innocence, and he was sentenced to death.
“This should serve as a lesson for the present,” wrote New Orleans attorney John Adcock on behalf of the private lawyers in response to state prosecutors:
Rather than attacking lawyers who move to obtain funds for their destitute clients, the prosecution should applaud them for doing what they can to make sure history does not repeat itself; that New Orleans’ criminal justice system does not endure the shame of sending more unjustly convicted persons to prison, ruining more families with nary a comfort to the victims who must wonder why this process does not work for them either.
It’s made clear in the Sixth Amendment of the U.S. Constitution and by the Louisiana Supreme Court that poor criminal defendants are legally entitled to a full-throttle defense, and that their assigned lawyers deserve compensation for their work. The U.S. Supreme Court ruled in 1985 that, “[A] criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.”
Louisiana’s Supreme Court agreed in its 1993 State v. Wigley ruling that lawyers are legally entitled to compensation, even for court-appointed work:
To require that attorneys represent indigents with no recompense while bearing the expenses of the representation, when the attorneys must maintain their own practices and continue to meet their other professional and financial obligations in today's changed legal marketplace, “is so onerous that it constitutes an abusive extension of their professional obligations.” [A citation from State v. Clifton]. This institutionalized “abusive extension” cannot be perpetuated.
For the district attorneys, lawyers asking for proper funding for proper defense isn’t just being money-hungry, it’s also “nothing less than anarchy,” as Pipes’ wrote in his court motion. Pipes wrote that these lawyers are “seeking to bring down a system they disagree with rather than protecting the rights of those individuals this court has appointed them to represent.”
However, Pipes will again find no friend in the Louisiana Supreme Court, which provides explicit directions for how lawyers need to provide effective and timely representation in its 2004 State v. Citizen ruling:
[a] district judge should appoint counsel to represent an indigent defendant from the time of the indigent defendant's first appearance in court, even if the judge cannot then determine that funds sufficient to cover the anticipated expenses and overhead are likely to be available to reimburse counsel. The appointed attorney may then file a motion to determine funding, ... and if the trial judge determines that adequate funding is not available, the defendant may then file, at his option, a motion to halt the prosecution of the case until adequate funding becomes available. The judge may thereafter prohibit the State from going forward with the prosecution until he or she determines that appropriate funding is likely to be available.
These are the steps the private attorneys have been following—if for no other reason there’s nothing cheap about legal defense in a place like Louisiana, where incarceration is simply a way of life. Following these steps is “the opposite of disorder,” as the lawyers wrote in their reply to the state.
The problem of underfunded legal defense is serious and un-anarchist enough that a few U.S. Supreme Court justices addressed it in their Luis v. United States ruling last week. In that case, Silas Luis sued the federal government over its seizure of her bank holdings, which prevented her from being able to retain a lawyer. Justice Stephen Breyer, who voted with the majority in Silas’ favor, reasoned that seizing her money would subject her to “overworked and underpaid public defenders,” which might compromise her Sixth Amendment rights to adequate counsel.
As Matt Ford wrote of the case for The Atlantic, this is the kind of reasoning that SCOTUS should be doing more of, in recognition of the public defenders crisis that much of the nation is currently facing. Wrote Ford:
Underfunding and understaffing in state public-defender systems weakens the quality of legal representation they can provide to clients. Virtually all of Kentucky’s public defenders exceeded the American Bar Association’s recommended caseload in 2015. Minnesota’s public defenders took on almost double the ABA standard in 2010—170,000 cases for fewer than 400 lawyers—and spent only an average of 12 minutes on each case outside the courtroom.
Some states face even greater crises. In cash-strapped Louisiana, where 8 out of 10 defendants cannot afford a lawyer, the system is on the verge of collapse. The state’s 2017 budget includes a 62 percent cut in state funding for the public-defender system, with 11 of the Louisiana’s 42 offices in danger of shutting down by October. In one office, a waiting list for legal representation had more than 2,300 names on it in March. Defendants often languish behind bars, separated from employment and family, while they wait.
Louisiana district attorneys have come to the bizarre conclusion that this math only adds up to a plot for anarchy, and that court-appointed, fill-in lawyers are only out for the money. Meanwhile, the New Orleans Public Defenders office operates with half the budget of the city’s district attorney’s office.
Here’s an interesting experiment: Perhaps the district attorneys should swap funding levels with the public defenders offices for a few years and see how they make out with their prosecutions.