by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
In early January 2006, someone in the district attorney’s office accepts the charges and files a bill of information against him. Perhaps the district attorney’s office believes Mr. Parra-Sanchez is not in jail; under those circumstances the Code of Criminal Procedure gives the district attorney ninety days to file charges against him. No one seems quite sure.
The bond in the case is suddenly reduced to $15,000, although nothing in the record suggests that anyone has taken any action on the case. No one tells Mr. Parra-Sanchez that his bond has been reduced. Of course, the bond reduction is of little use to him now. His family has sold his tools to pay for food and clothing. After several months without his income, the family is behind in the rent and will soon be evicted from their home. . . .
So, as January turns into February, February into March, and March into April, Mr. Parra-Sanchez continues to sit in the St. Charles Parish jail. He sees the jail psychiatrist, implores her for help; she cannot help him unless his case goes to court. He begs the guards. “Will I have a court date? When? When can I go home?” They are kind, but they cannot help him. Thousands of Orleans Parish prisoners are scattered across the state asking the same questions to similar guards in similar prisons. The answer is always the same. A shrug and a brief explanation that they cannot do anything until the court sends for him. Mr. Parra-Sanchez makes a few friends in jail. They share with him the little they know about Louisiana criminal procedure. Those who speak English help him file two pro se motions for a speedy trial.
In May 2006, the Parra-Sanchez case appeared on the docket in a criminal district court. The case is set for arraignment: the appointment of counsel and the entry of a preliminary plea of “guilty” or “not guilty.” No one calls St. Charles Parish jail and tells Mr. Parra-Sanchez to get ready for a trip to court. No one tells the public defender’s office about a new case on the calendar. The arraignment date arrives. Mr. Parra-Sanchez is in the St. Charles Parish jail. The judge orders his deputy to call Mr. Parra-Sanchez’s name three times in the hall. No response. The judge issues an arrest warrant based on Mr. Parra-Sanchez’s willful failure to appear in court. This warrant for failure to appear will appear on any future court records or criminal history records. Mr. Parra-Sanchez knows none of this. He is still in jail. No new court date is set.
May, June, July, August, September, and October pass in the same way for Mr. Parra-Sanchez. He is in a small jail, in a small town in southern Louisiana. He misses his children and his wife. He has already missed Thanksgiving, Christmas, New Years, and Easter. His family has moved into an RV park. His eldest daughter has run away from home to live with her boyfriend; her struggling mother could not support all four children. Mr. Parra-Sanchez can do nothing. He has no lawyer. He has never been to court. Independence Day comes and goes. Columbus Day, Halloween, and Veterans Day. More than one year has passed.
In November 2006, someone calls the Tulane Law Clinic asking about Pedro Parra-Sanchez. My students and I file a habeas petition for his release and move to dismiss the charges filed against him for violation of his constitutional right to a speedy trial. He is released in mid-November, 2006.17
It became increasingly apparent that the slew of problems around record keeping and timeliness of trials and sharing of necessary information across court constituents and effective representation for the indigent had long existed in New Orleans. Katrina had simply exposed the terrible, preexisting fault lines in the system, the short shrift that poor clients had been getting for decades.
Greg Bright and Earl Truvia’s joint murder trial lasted one day. In fact, the transcripts run ninety-three pages, which means, given approximately one minute per typed page, the trial was likely completed in under two hours. (For comparison, consider that the transcripts of Rodney Young’s murder trial discussed in the following chapter ran more than four thousand pages.) The state called four witnesses. The defense called none.
First, the state called James McCraney, the fourteen-year-old newspaper boy who found Elliot Porter’s dead body around 7:30 A.M. on the morning of October 31. He explained how he found the body, how he knocked on a few doors to rouse an adult, how someone called the police. Greg Bright’s attorney asked McCraney seven questions, all pertaining to clarifying the address where the body was found—a fact not in dispute.
Next, the state called Myrtle Porter, the mother of the victim. She testified that her son went out the night of the murder at “something to eleven” and confirmed, after viewing some photos tendered into evidence, that these were indeed photographs of her deceased son. She said she didn’t know Greg Bright but she knew Earl Truvia, who was friends with her son. “Now as far as you know, was he one of your son’s close friends?”18 asked assistant DA Henry Julien.
“No, he wasn’t. He was an associate. You know, he used to be around where they stay. But I don’t think he was a close friend of his.”
When Greg’s public defender stood up, he had four questions for Porter. “Was your son going to school at the time?”
“Yes, he was.”
“And was Friday due to be a school day?”
“Yes, it was.”
“You had indicated that you didn’t see him again after he went out that night. Did you know whether he was at home, or not, during the night?”
“Yes, I know he wasn’t at home.”
“You know he was not?”
“Because my daughters came in. They had went to a social around 12 or 1 o’clock.”
“Thank you. I have no further questions,” Zibilich said and sat down.
Earl Truvia’s lawyer, who had asked some questions of residents in the Calliope Project about Elliot Porter’s activities, heard he had been peddling drugs. When it was his turn to question Mrs. Porter, he asked about some new outfits the boy had been wearing, questions the boy’s mother had also admitted raising with him. “Now, you were about to explain to me about an extra job or something, or work that your son did when he was in the eighth grade,” Edward Haggerty said. “What type of work did he do?”
“I said, he worked over at the Superdome. He used to sell cokes. That’s all. He didn’t work there that long. He was laid off.”
“To your knowledge, did he ever make enough money to buy himself a new outfit?”
“No, I don’t think so.”
“Well, if he got the money to buy him a new outfit, where would he get the money from, Mrs. Porter?”
“Well, that’s what I would like to know. He was out there doing something. You know, somebody had him out there because I know he didn’t bum with nothing but the big boys, you know.”
Several minutes later, the prosecutor, Julien, followed up on this line of questioning: “Now, Mrs. Porter, you said, in answer to a question from Mr. Haggerty, that you thought your son was involved in some kind of drugs. Is that correct?”
“Yes.”
“What was it that made you believe that?”
“Well, when I used to go to school, his teacher used to tell me, you know, keep a close watch on him because he have plenty—she asked me, did I give him plenty of money. I told her no, I couldn’t afford to. So, I said, maybe a dollar or sometime two dollars. She said, no, I mean five or ten. I said, well, no, I say, I don’t know no ways he would be getting it from. So, she told me, well, you better keep a close watch on him because he’s following big boys. She say, they might have him out here selling, you know, like marijuana or something like that.”
“I have no further questions.”
“I would like to ask another question,” Haggerty said.
“Very well,” the judge agreed.
“In other words, prior to this October 31st, you had had a previous conversation with some of the teachers where they saw your son having [an] excess amount of money such as five or ten dollar bills, and they know if he didn’t get it from you, there was a suspicion he was getting it from selling marijuana or other dope?”
“Yes, that’s what it was.”
“Is that
the reason why you told someone that you thought your son was killed because this was related to some drug?”
“Yes.”19
Bright’s lawyer, Zibilich, said nothing.
On redirect, the prosecutor tried to undercut the possibility that Elliot Porter may have been shot because of a drug-related incident, pointing out that Mrs. Porter lives in a New Orleans neighborhood called Central City—and, of course, her kid was mixed up in drugs, but that doesn’t mean dealers from Thibodaux killed him. He asked her: “To your knowledge, do you know a lot of young people who’ve been caught up, more or less, in drugs, one way or the other? In that area?”
“I don’t know,” Porter said. “There’s so much happening around up in that area, you know.”
“Would you say that your fear that perhaps your son might have been involved in something illicit or illegal was a normal fear for a mother living in that area?”
She conceded that it was.
The judge put in his two cents: “I think that’s true all over the city.”
In the months following Katrina, as surviving residents slowly crept home to rebuild their homes and lives, folks in the criminal justice system were similarly weighing rebuilding—from the ground up. Is there a better way of doing business than the way it had historically been done in the city? reformers began to ask. And, with the flooding having cleared the decks at the public defender’s office, might change actually be possible?
“After Katrina, there was a void because suddenly you didn’t have all these employees vested in the existing system and fighting to keep it,” Loyola Law School’s Steve Singer says, seeing this as the thin silver lining to New Orleans’s decimated indigent defense system. “And because there was no money, there was no money to control, so the judges didn’t care as much. Nobody cared because there was nothing there. So it created a vacuum at the top and the bottom.” This was an opportunity, a kind of blank slate, to allow reformers to step in and re-create the system.
So they did.
One of the models considered, in rethinking the Orleans Parish public defender’s office was the Bronx Defenders. The Bronx Defenders are nationally recognized for their unique, holistic approach to legal representation. For example, if a client is out on bail, and they are hoping to improve his situation, they might find out that the person is a drug addict and needs counseling and maybe needs to get his GED so that he can access a better job. With social workers on staff, the Bronx Defenders try hard to address some of the root problems their clients are struggling with. In pre-Katrina New Orleans, this was a hard sell. Norris Henderson, director of Voice of the Ex-Offender, describes the reaction reformers got in the days before the hurricane: “We don’t do it that way in New Orleans, so take your hare-brained scheme somewhere else.”
But slowly, after the storm and after some skirmishes on the local public defender board, a new slate of board members endorsed the changes. The board agreed to hire full-time public defenders and give them a decent—though still skimpy—starting salary and bumped them from the pre-Katrina rate of $29,000 to $42,000 (which is what it remains today).20 Steve Singer was temporarily appointed to head up the new office and transition team, and he moved to a system of “vertical representation.” This means the lawyer hired to represent someone stayed with the client the whole time, from arraignment to trial. Vertical representation builds rapport between client and attorney, and the defendant begins to trust the lawyer. “If you’re an attorney coming to talk to me and I don’t know you, I don’t know if you’re vested in my case; I’d be reluctant to share information,” says Henderson, who was himself exonerated after spending “twenty-seven years, ten months, and eighteen days” in prison. “You may have to come and talk to me four or five times before I feel comfortable saying the first thing about my case. In the past, a lot of attorneys would see that as resistance and try to get off the case.”
After the storm, backed by a new, reform-minded Public Defenders Board in New Orleans, interim director Singer was able to push ahead with changes. He moved the public defender’s office out of its basement room at the courthouse into a nearby office building where there was room for confidential conversations with clients and witnesses, along with working phone lines, computers, a case management system, copy machines, investigators, and administrative help. For the first time, there were performance standards, discussions about limiting caseloads, training and mentoring for new hires, and a system of record keeping and data collection.
Sounds simple, basic. But these were things that had eluded the public defender’s office for a long time. When an outside agency, the Bureau of Justice Assistance, stepped in to assess the situation and offer the above recommendations, it concluded its April 2006 report with one caveat: “It is imperative that a stable and adequate funding source be established for the Orleans Parish public defender program and without that commitment, it will remain impossible to provide defendants with the representation to which they are constitutionally entitled.”
On July 29, 1976, the state of Louisiana put its fourth and final witness, Sheila Robertson, on the stand—and sealed Gregory Bright’s fate. Julien, the prosecutor, led her through her testimony, reminding her when she forgot essential aspects.
“Why were you up at that particular hour of night?” he asked.
“Waiting on a friend,” Robertson said.
“And why were you in the window particularly?”
“Looking for a friend.”
“And you were looking out the window, looking for him?”
“Right.”
“Now, when these three people walked by you, the two defendants and the victim, you say that they were arguing?”
“Yeah.”
“Did you notice the victim do anything unusual at that point?”
“I don’t understand.”
“Did the victim make any kind of motion to you, gestures or anything?”
“I don’t understand you.”
“The boy who was killed.”
“Did he say anything to me?”
“Yeah.”
“No. He just only did, you know, like if you would ask for help. You know, he did like this here. You know, like he was asking for help.”
“Did he appear to be afraid, upset?”
“Right.”
“And he broke out and ran. Is that right?”
“Right.”
“And the two defendants are the people you saw run after him?”
“Yeah. They got him as far as to where I marked on there,” she said, pointing to a map of the projects that Julien had introduced.
“Where you made the circle?”
“Right.”
“And that’s where you saw them fight?”
“They started fighting before. I circled that, the last I saw is where I circled at.” They disappeared behind a bush, she continued, and then she heard shots.
“Now, what happened after you heard the shots? Did you see anybody after you heard the shots come from that direction?”
“Did I seen anyone come back from that direction?”
“Yes.”
“Yes, I did.”
“Who did you see?”
“I saw those two guys.”
“Now, the two guys that you’re referring to, do you know them from the area? From the neighborhood?”
“Yeah. Matter of fact I spoke to both of them.”
Julien asked a few more questions, then circled back. “When was the next time you saw them?”
“About two nights later, they came into my apartment,” she said.
This didn’t jibe with a statement she originally made to police, but no one batted an eye here. Although Robertson had reported to the police ten days after the murder that the two men had broken into her apartment that very night, no one remarks on her inconsistent testimony here. This is the first the defense has heard about a break-in; Greg’s and Earl’s attorneys have never seen the original police report. As for the assis
tant DA, it is not in his interest to point out this inconsistency in his star witness’s testimony. Instead, Julien simply asked: “What happened? Would you tell the ladies and gentlemen of the jury what happened? What were you doing? What time of night was it?”
“I couldn’t really say, Mr. Henry Julien, but it was late,” Robertson said. She described hearing some noise, “but then, I said, no, well, that’s just my imagination.” She laid back down, dozing, she said. “So, the next I seen some flashes of, you know, some heads. I said, no, that’s just my imagination. And the next thing, about a second maybe, before I can really say, you know, this guy jumped over the bed, and was over my child, and he held a pistol to his head, and told me, you know, they were only coming to remind me not to go to the policemen, and the next time they come back, I would know what they coming for.”
Out of the blue, Robertson had thrown Julien a bone. In her previous statements to police and to the grand jury, she had described being choked. No gun was mentioned. (Once again, the defense did not know this, having never seen previous statements.) Julien, however, would run with it; it upped the ante so nicely. “And your child was sleeping in the bed with you?”
“Yeah, he was sleeping in bed.”
“And he pulled a gun on you?” Julien said, referring to the defendants.
“Right.”
“Which one, who was it?”
“He didn’t pull one on me. It was my kid.”
“He held a gun to your kid’s head?”
“Right.”
“How old is your child?”
“Well, at the time he was a year and four months, maybe five or six. Really I couldn’t say, but he was a year and something like that.”
“Did you get a look at that person?”
“I beg your pardon?”