by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
On July 29, 1976, Greg and Earl were tried for second-degree murder in Section B of the Criminal District Court for the Parish of Orleans. The assistant district attorneys, Henry Julien and Patrick Quinlan, laid the groundwork for their case in opening arguments. “The meat of this case,” Julien told the jury, “will get down to the testimony of one individual.” The prosecution identified this witness as Sheila Robertson and said she would tell the jury how “on the night of October 31, the early morning hours at least on October 31, she was sitting at her window.” There, she saw three young men walk by. “She will identify those young men to you today, two of them being the defendants here, and the third being Elliot Porter. And as they walked in front of her house, something seemed amiss, something seemed wrong. . . . A struggle ensued. She could see the struggle. And it appeared that the two people were attacking Elliot Porter, a fifteen-year-old.” Julien went on to explain that she would further testify that those two men—Greg and Earl, whom she didn’t know—broke into her house two nights after the murder and threatened to kill her and her eighteen-month-old baby if she told the police what she’d seen. “And that, ladies and gentlemen, is basically the case the state will present to you,” Julien said.
“You won’t see any weapons introduced here today,” he admitted. “But, I believe, from the facts that you will see, and from the testimony you will hear, and the circumstances surrounding those facts—now, I’m not saying circumstantial evidence. I’m saying the circumstances surrounding those facts, which is the only way you can really determine those questions . . . you will determine, or will be able to determine, that the two defendants before the bar murdered fifteen-year-old Elliot Porter. Which one actually pulled the trigger, I don’t know. But they are principals, acting in consort. . . . Thank you.”
Greg Bright’s attorney, Zibilich stood up. “If Your Honor please, Mr. Bright relies on his presumption of innocence,” he said. He sat down, his opening argument complete in this single sentence.
Very little about the way justice was delivered to the poor in New Orleans changed between 1975 when Greg Bright’s case went to trial and 2005 when disaster struck—and shook things up.
Hurricane Katrina swept through New Orleans on August 29, 2005, and within days, the ensuing storm surge and levee breaks flooded the streets, leaving 80 percent of the city underwater. This included the courthouse and adjacent jail. As the water levels rose, 6,700 Orleans Parish Prison inmates, as well as several thousand others who had been evacuated to this jail from surrounding parishes as the storm approached, were trapped. Some were trapped in cells as the water levels rose in the building, according to Human Rights Watch, which interviewed 1,000 prisoners in the weeks after the storm, and, as deputies fled to safety with their families or in the course of evacuating inmates to other jails in the state, hundreds of prisoners were left without food, medicine, or even air (as the windows were sealed and all electricity, including air-conditioning, failed) for four days.14 Meanwhile, most of the prisoners were evacuated, scattered to the wind in dozens of jails across Louisiana and bordering states, while several hundred others were contained for days in the open, in a pasture where food and water were simply tossed by deputies to the masses who fought for supplies, the strong prevailing over the weak. The sheriff, ostensibly, had a list of who was where, but it was unreliable; prisoners had traded around their ID bracelets, switching up identities and thus, crimes committed and times served.
Adjacent to the jail itself, the courthouse had also flooded, water gushing into basement evidence rooms and scattering and destroying years of evidence. Photographs stuck together, guns rusted, mold ate through fabrics, confiscated marijuana rotted, new DNA evidence went unrefrigerated for weeks, and, according to the New York Times, a non-English-speaking cleanup crew hired to try and salvage evidence relied on guesswork to figure out which collections of evidence belonged to which cardboard box of crime investigations.15 Meanwhile, with the city emptied of residents, witnesses to crimes had fled the storm—some never to return. Juries, of course, were nonexistent. Even the public defenders were AWOL, only seven of them remaining to try and sort through the chaos.
Criminal justice in New Orleans ground to a complete stop.
Judge Calvin Johnson, who was trying to run a court out of a spare classroom at a college in Baton Rouge, knew those inmates’ constitutional rights were likely being violated. Folks picked up for misdemeanors like DUIs or shoplifting were lost in the system, still in jail somewhere in the state where they were languishing for longer than any sentence that would have been meted out. Those charged with felonies, 90 percent of whom relied on public defenders, had no lawyers to press their cases. Some, picked up by cops in the hectic days before Katrina hit, had no official paperwork affirming their existence in custody.
Judge Johnson, then chief judge of the Orleans Parish Criminal District Court, appointed Steve Singer’s Loyola University School of Law clinic and Pamela Metzger’s Tulane Law School’s clinic to represent the interests of all of the city’s indigent defendants, which amounted to just about everyone in jail at the time (some 6,500 to 8,000 people), excluding the small fraction of folks who had private lawyers. The two of them, on the ground immediately in the days after Katrina hit, helped spearhead the myriad reforms to indigent defense that were subsequently put in place over the years since the storm. Today, Metzger serves on the Louisiana Public Defender Board, and remains immersed in the struggles indigent defendants face in the city. Metzger says New Orleans has made “extraordinary strides” since Katrina. But understanding what happened during the storm is essential to understanding why the city is having such a difficult time maintaining its progress.
As she sits in her office one bright, sunny day in April 2012, in a vintage-style dress, cherry-red pumps, and a cardigan, Metzger explains she is dressed up because she is heading over to the courthouse later; she was tapped to be an expert witness in a lawsuit against the jail in which public defenders were demanding proper, timely access to their imprisoned clients. It is hard to imagine the legal and administrative chaos she describes in the aftermath of Katrina, but her office hints at it. The room is piled high with boxes and papers and books in stacks that have swelled beyond the confines of the floor-to-ceiling, wall-to-wall bookshelves to spew out into columns on the floor—many of the file boxes containing inmate files from the days after Katrina. She is still holding on to these files, hoping they can be archived someday, testament to a level of disorder, disarray, and tumult that the criminal justice system was plunged into on the heels of the storm.
“Katrina laid bare just how bad the public defender system was in New Orleans,” she says. After the hurricane hit and the levees broke and everyone who could fled, the city was deserted. No people, no functioning traffic lights, no functioning parking meters, no meter maids, no courthouse, no traffic court, nothing. “It wiped out all the money,” says Singer, explaining that for three, four, five months, this income stream that had been used to pay for public defenders was completely decimated. The forty-two part-time public defenders couldn’t be paid and stopped working.16 The office was reduced to five part-time attorneys, a chief public defender, and one administrator.
At the same time, Singer’s and Metzger’s own lives were chaotic. Metzger had evacuated to Atlanta, where her parents lived, with her two kids and her dog, was in the midst of separating from her husband, and had a set of clients from Tulane’s law clinic whose cases she was supervising. She began commuting, leaving Atlanta on a 6 A.M. flight Monday mornings, catching a flight back on Thursday nights. As she and Singer began to assess the situation, they realized that the troubles with indigent defense were even deeper than they had anticipated. Metzger got on the phone with Singer. “Do we have a list of clients?” she wanted to know. There was no list. They couldn’t find a list of these 6,500 to 8,000 prisoners they were supposed to represent. No one seemed to know who the public defenders’ clients were. This was shocking. Could it be that no o
ne in the public defender’s office kept such a list? Singer and Metzger discovered that not only had individual public defenders routinely failed to keep a list of who they represented, but that no office-wide list existed either. There wasn’t even a record of which clients were in jail or to which jails inmates spread out across the state had been moved.
Eventually, the sheriff provided a list of who was in each of the jails scattered around the South. “We began to try and systematize who was in jail that shouldn’t be. Who was in jail and needed a lawyer right away,” Metzger says. They divided the court sections, Metzger’s law clinic taking two sections, Singer’s law clinic taking another two, and another attorney, Meghan Garvey, taking one. They quickly discovered, however, that not all of the clients on the sheriff’s list were showing up with any kind of case record in the courts. “There were eight thousand clients, three lawyers, and twenty students,” Metzger says. “It couldn’t be done. It was very surreal.”
The federal government gave a grant of $2.8 million, which helped, but it was a drop in the bucket compared to the $10 million estimated by a federal Justice Department study to be necessary for getting the public defender system up and running properly. The Louisiana State Bar Association commissioned a study and kicked in for the salaries of three lawyers for a year, but clearly many more were needed.
Metzger says lawyers around the country offered to volunteer and help represent clients, but they had so many strings. They were available only during a certain two-week stretch one month from now and they did this particular kind of case. Metzger says no one realized the level they were working on. “When all these law firms said, ‘What can we do?’ I said, ‘I need file folders. If you could have someone type up labels and put them on folders, etc.’ Or, if you could go into the computers and have someone print the criminal history and put it in the folders for us, that would be miraculous—because we had eight thousand of them and could not do the physical labor. But they don’t want to do that, they want to be heroes in court.”
Metzger and Singer and their law school students were reduced to traveling personally to jails around the state to interview inmates, asking for basic information: Did they have an attorney? How long had they been incarcerated? What was bail set at? What had they been charged with (although some had not even been formally charged)? Did their family know where they were? Did they know where their family was? “Steve and I used to have these conversations during those first months,” Metzger recalls, bemoaning the fact that they were so completely overwhelmed with the scope of the problem, so desperately in need of more hands and yet “nobody is coming.” Then, in the winter of 2006–2007, help came from an unexpected place: young people.
The Student Hurricane Network, an outreach effort run by college students to facilitate bringing volunteers to New Orleans, put out word about the dire state of indigent defense. Calling their effort Project Gideon, Metzger and Singer sought students to help them with all the unglamorous but essential grunt work. They were still trying to collect information on five hundred of the most difficult cases, cases that were confusing in terms of where these inmates actually were, what their record was, what had been done on their behalf thus far. They needed someone to physically travel to each of the prisons, talk to the prisoners, get statements from them, get police reports, create a file. When their plea went up on the Student Hurricane Network, they asked other law clinics to send a supervisor for every eight students and the plan was for student volunteers to spend their winter break helping. “We have seventeen students and fifteen supervisors,” a professor from the University of the Pacific McGeorge School of Law in California told Metzger over the phone one day. “I said, ‘That’s great, maybe we should find something for those other supervisors to do,’” Metzger said. But she had misunderstood. “‘No,’ they said, ‘We have seventy students and fifteen supervisors.’ And I sat down on the floor of my office and I cried.” Her eyes fill with tears as she recounts this moment, some six years ago. On the scheduled date of December 14, three hundred student volunteers showed up to help for three weeks. “We never anticipated the response we received,” she says. Some arrived having driven for a day and a night to get here and then happily jumped in their cars for another seven-hour drive to a remote jail to interview one person. They were spread out, crashing and working in every available space at the school, with paperwork and files everywhere as they handwrote all their notes and collected information in files (there were not enough working computers, and those that existed were used to search the criminal justice databases). “We cleared the backlog and it was incredible. Here we had been all this time, with these major organizations saying they would send someone as a fellow or for a trial the second week in November and we kept waiting for all these lawyers to come, but we were asking the wrong people. We should have been asking the students. We got more work done with student volunteers and supervisors than we did from any single law firm or public interest firm. Period.”
“We started filing habeas cases,” Metzger says, explaining that this was a collective strategy where she petitioned the court saying the prisoners had been wrongly held. She went into Judge Arthur Hunter’s courtroom, listed a group of people by name, pointed out they had not seen a lawyer, there were no lawyers in sight, there were no juries, and they ought to be released. “Suddenly, all these fabulous plea bargains were made available [by the DA],” Metzger says. That was troubling, Metzger says, because she often had no idea whether that was a good deal for them or not, having no idea of the history, their criminal history, the facts of the case. “This was triage,” she says. “There was no individual representation, this was mass representation. So we had hearings. And the testimony was heartbreaking.”
Metzger wrote about one man, Pedro Parra-Sanchez, one of the eight thousand detainees hurled into the post-Katrina chaos, in her Tulane Law Review article:
A man went to the Gulf Coast in October of 2005, just days after the storm. He went with his construction buddies and their boss; they have come to rebuild New Orleans.
The man is named Pedro Parra-Sanchez. He is a Mexican citizen and a lawful resident alien residing in the United States with a valid green card. He lives in Bakersfield, California, with his wife and four children. He has lived in the United States for twenty years.
On October 13, 2005, New Orleans police arrested Mr. Parra-Sanchez and charged him with battery. He is forty-four years old and has never before been charged with a crime. None of the courts are open and the local jail is flooded.
The police handcuffed Mr. Parra-Sanchez and took him to an old Greyhound Bus Station that has been converted to a makeshift jail. A piece of plywood hangs crookedly over the door; across it someone has scrawled: WELCOME TO ANGOLA SOUTH.
Mr. Parra-Sanchez waited. Court proceeded in a blur of activity he cannot understand. No Spanish interpreter is available, so everyone in the courtroom manages as best they can: Spanish is made to suffice. The public defender in the courtroom that day neither met Mr. Parra-Sanchez nor interviewed him about his bail prospects.
Louisiana’s Code of Criminal Procedure entitled Mr. Parra-Sanchez to have counsel appointed to represent him from the day of his initial appearance through the resolution of his case.
The judge tells Mr. Parra-Sanchez that the public defender is his lawyer for that day only. He will get his own lawyer if and when the prosecution decides to accept the charges against him. Thus, the public defender who meets Mr. Parra-Sanchez is not his lawyer at all. The lawyer is just constitutional and statutory window dressing, allowing the system to place a check mark in the counsel column. The lawyer is not a true check on the power of the prosecution or the court.
Because Mr. Parra-Sanchez is unrepresented, no one gathers information about Mr. Parra-Sanchez and his family. No one contacts his wife and children to tell them where he is. No one argues for his release. The judge knows only that Mr. Parra-Sanchez is a Mexican citizen who is charged with aggravated battery.
> The judge sets the bond at $20,000. To secure his release, Mr. Parra-Sanchez will have to get the unthinkable sum of $2400, in cash, to a local bail bond company. He has no way to reach his family, and no attorney has offered to contact them.
The Code of Criminal Procedure gives the state an unprecedented period of sixty days in which to charge or release Mr. Parra-Sanchez. Accordingly, the court sets the case for a status hearing sixty days later; if the district attorney has not filed a bill of information, the court will order Mr. Parra-Sanchez released without any bond obligation.
The clerk is indifferent to Mr. Parra-Sanchez’s plight. He does not enter Mr. Parra-Sanchez’s case into the court’s docketing system: neither Mr. Parra-Sanchez’s case, nor his potential release date appear on any judicial calendar. Because the public defender is appointed for initial appearance only, that lawyer makes no record of Mr. Parra-Sanchez’s existence. The public defender has no case file for Mr. Parra-Sanchez, no notes about his circumstances, not even a calendar notation of Mr. Parra-Sanchez’s [legally required charge or] release date.
Sixty days come and go, then ninety, then one hundred and twenty. No charges are filed. No release is ordered. No lawyer petitions the court for Mr. Parra-Sanchez’s release. Mr. Parra-Sanchez is lost.
More days go by. More weeks. Months. Guards move Mr. Parra-Sanchez to a small jail in rural St. Charles Parish. No lawyer comes to visit. Days drag on. Other prisoners leave for court appearances. Others return and then leave again for court—for hearings and conferences, and even for trials. Others never return; they have been released and sent home or sentenced and remanded to a state penitentiary in the north. Mr. Parra-Sanchez never leaves the jail. Not once.