by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
In a May 2012 Times-Picayune article, reporter John Simerman drew on a 2009 Columbia University study of the small inner-city neighborhood in New Orleans called Central City. It had 4 percent of the overall population before Katrina, but 8 percent of its residents were imprisoned. Further, Simerman observed, cops regularly did “sweeps” in the neighborhood. In a single, small “sparsely populated four-block area” of Central City, they made ninety-eight arrests in the last two years (60 percent of them for drugs). The Calliope Projects, where Greg Bright was arrested in 1975, sit just outside the edge of that neighborhood.
“When I went to prison, I could hardly read my name,” says Gregory Bright today. He had dropped out of school in sixth grade to help take care of his sisters and his father, who was disabled by arthritis and bedridden. “When he took ill, I used to read the Lord’s Prayer to him. He would help me and I could stumble through it.” While he sat in jail at “Tulane and Broad,” which had no library but had some magazines and “lots of religious stuff,” he slowly taught himself to read The Watchtower. “I began to underline all the words I recognized from the Lord’s Prayer.” After being found guilty in 1976, he was moved from the New Orleans jail to Angola Prison. There, he found a pile of law books that were being thrown out. “I got some of those books, set on my locker, and read them books. Read ’em and read ’em. That’s how I come to read, and how I come to know the law.”34
The more he discovered about the law, the more indignant he grew about the way his case was handled. “I’m watching my twenties, my thirties, my forties disappear,” Greg says. “I’m in prison year after year, and in the presence of guys who been there twenty years before me. So I know it’s a reality that a life sentence in Louisiana is a life sentence. I could see that.”
At the time—and this remains true today—indigent “lifers” were not entitled to an attorney for post-conviction proceedings in state court. While there is more rigorous attention to this in death penalty cases, in Louisiana and other states, lifers have no right to counsel. Instead, what the state of Louisiana provides is what one attorney characterized as “authorizing the unauthorized practice of law by prisoners.” In essence, the Department of Corrections will appoint an inmate who is typically self-educated in the law. A guard will give him a typewriter, a computer (without Internet access), some paper, a day or two of training, and a certain amount of freedom to talk to “clients.” Called inmate counsel substitutes, they are required to have a GED and attend twenty-four hours of training. (A previous paralegal training program was defunded.) In addition to handling minor, simple legal matters, they also take on hugely complicated cases and appeals. Calvin Duncan, a counsel substitute at Angola for twenty-three years until he was freed in 2011, was described by Emily Bolton, director of an organization called Innocence Project New Orleans, as a rare and skilled exception to the otherwise undereducated jailhouse lawyers. Duncan entered prison with a ninth-grade education when he was nineteen and notes proudly that he initiated certain noncapital appeals in fellow inmate Juan Smith’s case, which included a first-degree murder conviction that went all the way to the Supreme Court in 2012, where it was overturned in an 8-1 decision.35 Still, as Bolton notes, such good legal representation is extremely rare—and real lawyers took over the Smith case. Currently, at Angola Prison, sixty-one counsel substitutes practice law for their five thousand incarcerated clients.
In this manner, but largely through his own initiative, Greg Bright appealed his conviction and tried desperately over the years to procure the documents he knew would help prove his innocence. Between them, he and Earl Truvia made dozens of requests for documents—such as copies of the original police report, the coroner’s report, and trial transcripts—from every conceivable government body in the state of Louisiana, including the Department of Agriculture.
Very quickly on the heels of the trial, Earl’s attorney appealed the conviction. But no appeal was filed for Greg, because his original attorney Robert Zibilich missed the deadline. According to court documents, Zibilich sent a one-sentence letter to the court saying that Gregory Bright “adopted” the appeal of “Carl Truvia” (sic). But on March 15, 1978, the state supreme court upheld the convictions.
Greg went on to use the knowledge of the law that he gleaned from his prison studies to represent himself in two post-conviction applications. In 1982, he tried to claim ineffective assistance of counsel and denial of compulsory process. He lost that, as did Earl. In 1991, he again argued that he had ineffective counsel, that there was insufficient evidence, and that the jury had received the wrong instructions. He lost that. He also filed a federal habeas corpus application by himself (as had Clarence Earl Gideon some thirty years earlier, similarly insisting he had been wrongly imprisoned), again arguing he’d received ineffective counsel. A certificate of probable cause was granted, but only on the narrow issue that his attorney had failed to call any alibi witnesses. There was a hearing on the issue in May 1982 in which Haggerty and Zibilich were called to testify. Haggerty, who had himself been an assistant district attorney for more than eleven years, clearly did not believe for a minute that his client was innocent. Testifying in 1982 that he saw Sheila Robertson’s name on the witness list and questioned Earl about her, Haggerty said: “He feigned complete ignorance of Sheila Robinson [sic], claimed he didn’t know anything about it.”36 By arguing that their failure to call any witnesses was a tactical decision—and a wise one, at that—the two lawyers managed to protect their reputations and tossed Greg and Earl to the wolves.
Meanwhile, Greg kept requesting copies of the police report, which he knew existed in fairly detailed form since on the stand at the trial a detective had been handed a copy of it by the prosecutors to help refresh his memory. In 1994, after eighteen years of asking for it, Greg finally got a copy of the original fifteen-page police report. He found what he had suspected all along: Multiple witnesses fingered two others for the crime, explaining that it was a drug deal gone bad when Elliot Porter skipped off with $300 from two customers but failed to produce the marijuana they thought they were purchasing. Several witnesses named the buyers and insisted that the buyers sought revenge by shooting Porter. But the two people named in the police reports had apparently skipped town and headed to Thibodaux. Cops pursued this a bit and then, suddenly, when Robertson came forward out of the blue, the detectives simply dropped the investigation, arrested Greg and Earl, and closed the file—keeping it from Greg for almost two decades.
Unfortunately, it was not enough to prove the cops were on the trail of other suspects but withheld this information from the defense. Greg—functioning as his own attorney—also had to prove that this information and additional evidence gathered might have caused the jury to deliver a different verdict. But from prison, he couldn’t pursue any leads, interview witnesses, access most documents, or properly investigate his case. He was growing increasingly despondent. His chances of proving his innocence were dwindling as the years passed. There was a sign over the majestic stone courthouse in New Orleans that haunted him. “This is a government of law not of men,” it said. But Greg was discovering that men—in particular, the influential white elite of New Orleans—had complicated backstories and powerful allegiances. The obstacles this created for a poor black man were nearly insurmountable.
Earl’s attorney, Edward Haggerty, for example, had been an assistant DA in the city for eleven years and then a judge in Orleans Parish Criminal District Court for fourteen years.37 He was booted from the bench in 1970 for “willful and intentional” misconduct “so seriously delinquent as to bring disgrace and discredit upon the judicial office.” In fact, he had been caught in a vice raid at a local motel that year. “Haggerty has described the occasion as a before-the-wedding bachelor party,” reported the New Orleans States-Item in November 1970.38 “The state contends admission was charged and prostitution was to take place.” Porn is euphemistically described as “stag films” and fourteen people were arrested in the raid, includ
ing several prostitutes. Police seemed as surprised as anyone to find Judge Haggerty there; Haggerty allegedly resisted arrest, slugged one of the officers, and had to be subdued. Haggerty defended his actions at the time, insisting that such stag parties were an old New Orleans tradition, while his attorney told the States-Item that “if all men in the city who had attended such functions were placed on the police blotter, it would read ‘like a telephone directory.’” His attorney in the case? Robert Zibilich. The judge in the criminal case was Matthew Braniff, the same judge who would later preside over Greg and Earl’s case (argued by Haggerty and Zibilich). Braniff threw out the criminal charges against then-judge Haggerty due to insufficient evidence, but the state’s judiciary commission ordered Haggerty removed from the bench.
Such overlapping histories and allegiances would trip things up for Greg Bright—and ultimately for indigent defense reform in the city. Consider this: two prosecutors tried Greg’s case, one of them would go on to become the judge hearing all his appeals (i.e., the judge was empowered to weigh in on accusations about his very own prosecutorial misconduct). How could this happen? In Orleans Parish, post-conviction appeals are heard by the same section of the court that heard the original trial. If the original judge left or died, whatever judge was elected to that section (courtroom) to replace him would hear the post-conviction appeals. In Greg’s case, the judge who heard the original case, Judge Braniff, was no longer on the bench. His successor was a judge named Patrick Quinlan, who was also the assistant district attorney who prosecuted Earl and Greg’s case. When Greg and Earl filed their post-conviction applications themselves, they automatically went to now-judge Patrick Quinlan. He should, of course, have recused himself from their case as he prosecuted it. He did not. If there had been the right to counsel in noncapital post-conviction appeals in Louisiana, the lawyer representing them would have known Quinlan was now on that bench and have moved to have him recused. The case would have been randomly reallocated to another courtroom—and judge. But Greg and Earl, representing themselves, did not know who the new judge was in that section of the court. Finally, Greg saw Quinlan’s name on some court documents and once that happened, he tried to figure out what he should do. It didn’t seem fair, but what were his options?
Consulting the law books, Greg learned he could take a writ to the Louisiana Supreme Court saying that his and Earl’s post-conviction appeals had been denied by a judge who had originally been a member of the team that prosecuted them. The state supreme court agreed that Judge Quinlan should have recused himself, overruled his denial of the appeal, and ordered that the cases be randomly reallocated. They were, and then strangely, ended up in different courts.
Today, Greg insists there were some shenanigans going on with the “random” reassignment of his case. His appeal was randomly reallocated to Judge Charles Elloie’s section. But then he was brought into Judge Dennis Waldron’s court in error. Judge Waldron, says Greg, was Quinlan’s supervisor in the DA’s office. “So then he’s denying my appeal,” says Greg. “That went on and on till I felt like [I was] boxed in.”
Greg was deeply discouraged. For years, his mother had regularly buoyed his spirits with her visits to the prison. “It’s painful to watch someone else’s pain,” Greg says. “So we’re both trying to cheer each other up. I tried to always have something positive to tell her when she came. I’d say, ‘Mom, I just found this out [with my case]. It’s a huge discovery right here.’ Or I’d say, ‘I’m going to file this or that.’ She’d say, ‘I don’t really know what you saying, but it sound good.’” But good news about the progress of his case had ceased. And his mother had died the year before. Greg found himself in deep despair, ready for the first time to give up on his case, and the chance of freedom.
The right to counsel in a criminal case seems so fundamental, most Americans would be shocked to learn the extent of constitutional lapses that continue to exist. But consider how the kind of problems Greg Bright had with getting effective counsel span the decades—and spill into contemporary New Orleans.
On April 18, 2011, New Orleans police arrested Clarence Jones, a forty-one-year-old African American man. Clarence contends that he was walking with his cousin Keitha Hyde, running some errands around 11:30 A.M., 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. When the cops turned the corner, he looked guilty. But police assert that Clarence was climbing out of 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 is still sitting 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 four hundred other prisoners, in one of the “temporary” tents.39 “It’s like we animals,” he tells me via phone one afternoon in June 2012. “They’re just packing more and more people in. They got us packed to capacity. Lots of us have no attorney,” says Clarence. “Can’t do nothing but sit back here. We’re just stuck.”
As an impoverished, incarcerated defendant in a criminal case, Clarence has a guaranteed right to free counsel. But in Louisiana, even today, such rights are routinely flouted. Indeed, Clarence was one of 230 defendants sitting in limbo at the Orleans Parish Prison in June 2012, as 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 will ever be assigned a lawyer to help. As 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.
Describing the situation as “dire,” Norman Lefstein, a member of the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants and the author of several books on the topic, says the system was already severely overburdened prior to the current economic crisis. “Now, across the country, these strapped public defender offices are seeing freezes and outright reductions in their budgets,” says Lefstein, “resulting in even fewer lawyers available to provide services.”
The stories mount. A 2011 Justice Policy Institute report cites example after example: California cut costs by implementing low-bid contracts for public defense (the aforementioned fraught arrangement where the winning attorney has to take on hundreds of clients for a flat fee); in Kentucky, the state cut the Department of Public Advocacy budget by $500,000 and, with deeper cuts expected in 2012, anticipated a reduction in services; Minnesota lost 15 percent of its public defender staff due to layoffs.
Something very similar happened in New Orleans. Squeezed by budget shortfalls, chief public 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: two people rob a liquor store and one of them shoots the cashier. 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. Fir
st, 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 private, pro bono representation. (Since February 2012, the number of defendants on the pro bono wait list has shot 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.