Louisiana at a crossroad on providing poor with access to public defenders in criminal cases, funding the program _lowres

Advocate file photo by TRAVIS SPRADLING -- Members of the Louisiana Public Defender Board listen Tuesday during the board's meeting as 15th Judicial District Public Defenders Office District Defender G. Paul Marx, speaks to the board on recent cuts made in the office because of losses in state and local funding for legal representation for poor people accused of crimes.

The parishes of Vernon and St. Charles may be four hours apart, but they could hardly be more similar when it comes to criminal matters.

Both have populations just shy of 53,000, and each saw one murder and a handful of robberies in 2014. The number of criminal cases filed in each parish that year was nearly identical, at around 1,600, court figures show. With three judges, the courthouse in St. Charles hosted three criminal trials. Vernon, which also has three judges, held two.

There’s just one glaring difference: While the public defender in Vernon Parish has had to start turning away defendants for lack of funds, his counterpart in St. Charles Parish — with more than twice the staff — is doing just fine.

St. Charles Chief District Defender Victor Bradley Jr. said it’s been years since he even requested some of the extra money the state hands out to public defenders in other districts.

“I’m just lucky, that’s all it is,” Bradley said. “It’s not my brilliance. It’s being in the right place at the right time.”

The right place, it turns out, is where the rubber meets the road.

Unlike other states, Louisiana has a “user-pay” system for indigent defense: Roughly two-thirds of the funding comes from local fines and fees levied on the guilty. And three-quarters of that cash comes from traffic citations, which have very little to do with the work done by public defenders. So St. Charles — home to parts of Interstate 10, U.S. 90 and U.S. 61 — remains flush, while out-of-the-way Vernon goes begging.

Many say a system that relies on traffic tickets is inequitable in the best of times and potentially catastrophic in the worst.

And these are decidedly not the best of times. Shifting law-enforcement priorities have sent traffic citations down since the beginning of the decade, eating away some districts’ surpluses and putting others in the red.

The state’s budget crisis may compound the problem. The Louisiana Public Defender Board has a pot of money that it distributes to local offices, typically providing about a third of their budgets. But last month, the board found out its recommended funding for fiscal 2017 will be $12.8 million — down from more than $33 million.

Jay Dixon, the official in charge of doling out that funding, testified recently that local districts’ reserves had already fallen from nearly $18 million in 2010 to about $6 million last year, and they continue to dwindle.

Defenders in retreat

In the 23rd Judicial District — which covers Ascension, Assumption and St. James parishes — state funding plunged 47 percent since 2013, while tickets and fees also dried up, a trend tied in part to the scrapping of the Sorrento Police Department.

Alan Robert, the chief public defender, cut two contract attorneys and decided not to replace two others who left. Soon, he plans on creating a waiting list for future clients, giving juvenile delinquency cases and jailed felony defendants priority.

Even before the cuts, in 2014, public defenders in the district had twice as many clients as the recommended caseload maximums. “We don’t have enough money to hire the lawyers that we need to continue with the services that we had,” Robert said.

In Plaquemines Parish, the situation is even more critical. Chief Defender Matthew Robnett started cutting last year, scaling back on drug court and no longer hiring contract lawyers for cases where his office had a conflict of interest, which is not uncommon in a small district.

It wasn’t enough. By the end of March, only his office assistant will be working in the Belle Chasse office, keeping the lights on and the files maintained to assist any pro bono attorneys appointed by the court. Robnett and the only other staff attorney in his office will be furloughed.

In New Orleans, Chief Public Defender Derwyn Bunton’s office, which saw a major drop in both traffic tickets and state funding this year, began turning away most new violent felony cases last month, leaving dozens of arrestees without lawyers after a hiring freeze and the threat of furloughs sent several lawyers packing.

As of Feb. 18, Bunton’s office reported it has refused cases involving 34 criminal defendants, 28 of whom remain jailed. Another 41 clients, 24 of them behind bars, have been wait-listed.

The Public Defenders Office in the Lafayette-based 15th Judicial District has laid off staff attorneys, contract lawyers and social workers, leaving six staff defenders and some pro bono help. The looming problem has even the district attorney worried. “The dilemma we find ourselves in is unprecedented. I would say we’re in a crisis setting,” District Attorney Keith Stutes said recently.

The situation isn’t as dire in Jefferson Parish, but that’s largely because of a couple of well-timed windfalls. That office has been riding a $1 million surplus for the past few years, along with $223,000 from a legal settlement over delinquent bail bond forfeitures.

“I’d like to say it was good management, but it was blind luck,” joked Chief Public Defender Ritchie Tompson.

Still, Jefferson Parish used to write some 80,000 traffic tickets a year. Now it’s more like 30,000. Tompson doesn’t question the shift in priorities, but it will hurt him nonetheless. The workload his lawyers handle already has been climbing, and he’s had four attorneys quit in the past six months.

The Public Defenders Office in East Baton Rouge Parish is also in better shape than many of its peers, with a hiring freeze and restricted services but no move yet to turn away clients, said Mike Mitchell, the parish’s chief defender.

In tiny Winn Parish, north of Alexandria, District Public Defender Herman Castete said his office now has a waiting list. All that’s left of his staff is himself, an investigator and a part-time secretary. He blamed a cutback in funding from the state board, from $170,000 to less than half that.

“Ain’t no way it can work. We don’t generate enough money in these little districts to be able to sustain ourselves,” he said. “If the governor’s going to cut the money as much as they say next year, hell, we’ll be out of business. There won’t be a Public Defenders Office.”

Roots of the crisis

It is clear enough in some jurisdictions why public defense funding has taken such a hit.

Newell Normand, who took over as sheriff in Jefferson Parish in 2007, rebuilt his office after Hurricane Katrina with a focus on patrol units, not traffic enforcement. His agency’s staff is still 11 percent smaller than it was before the storm.

“We don’t take shortages in the Patrol Division,” Normand said. “It will occur in the Traffic Division first.”

He’s one of many local officials who say funding public defenders from traffic tickets doesn’t make sense. He pointed out the number of tickets being written at any given time is susceptible to everything from bad weather to manpower issues.

“It’s not a revenue source that’s steady,” he said. “It’s affected by everything.”

Other district defenders cite a decline in ticket-writing by State Police troopers, at least in their parishes. A police manpower shortage is almost certainly to blame for the drop in tickets in New Orleans.

The causes vary by district, said Dixon, the state public defender.

“It could be a local political race and they don’t want to upset the citizenry, so tickets drop. It could be a political tiff between the DA and a sheriff. It could be a hurricane will completely wipe out revenue for months on end. Your priorities change. Traffic tickets are not as important,” Dixon said. “That’s the crux of the problem. It’s an incredibly unreliable revenue source because it’s subject to all sorts of vagaries.”

John Lindner, chief public defender in St. Tammany Parish, said that diversion programs run by some district attorneys — in which defendants are placed in rehabilitation programs rather than prosecuted — also have played a role in sapping revenue, making them a kind of double-edged sword that both helps and hurts the indigent population.

The bottom line, for many defenders, isn’t why there are fewer tickets written but why that should matter so much to the fundamental right of criminal defense.

“Until we can come up with something other than this user-pay system,” Lindner said, “we’re going to face this crisis every so often.”

E. Pete Adams, executive director of the Louisiana District Attorneys Association, agreed that a decline in traffic enforcement is a big part of the problem.

But he also argues that public defenders could be helping themselves in ways they haven’t been taking advantage of.

He said many defenders offices have been lax in collecting a $40 application fee that indigent defendants are supposed to pay, unless they can’t afford it. Judges also aren’t being vigilant in assessing arrestees’ need for free lawyers, he said.

“The obligation to provide counsel to those who cannot afford a lawyer has now grown to ‘We’re going to give free lawyers to everybody who’s charged,’ ” he said.

Tompson, the chief public defender in Jefferson, said that even if clients could pay it — and they can’t — the result wouldn’t amount to enough to change the fundamentals.

“That’s a DA red herring,” he said, “absolutely a DA red herring.”

What’s next

With service restrictions set to begin in earnest, judges in some parishes have tapped private attorneys to handle cases where public defenders are turning them away. That stopgap already has drawn a legal challenge in Orleans Parish that is likely to be repeated across the state.

Mark Cunningham, president of the Louisiana Bar Association, argued at a recent Orleans Parish court hearing that relying on the private bar to handle indigent defense cases for free amounts to an unconstitutional “taking” of lawyers’ property — namely, money.

Two months ago, the American Civil Liberties Union of Louisiana filed a federal lawsuit that named the state board and Bunton, of Orleans Parish, as defendants, but that is aimed at forcing court-ordered reform on the state in a brutal budget year.

“Right now is not the time to be asking anybody for money for anything without a court intervening,” said Marjorie Esman, executive director of the ACLU of Louisiana, “We have clients who are sitting in jail without the benefit of counsel.”

Esman said the lawsuit seeks to fund public defenders offices “much the way prosecutors are. We don’t have DAs saying, ‘We can’t prosecute.’ The funding mechanism needs to be the same (for both sides). There needs to be parity so there’s enough money to pay public defenders in proportion to the population in that parish that relies on public defense.”

Tompson thinks that, sooner or later, that’s what it’s going to have to come down to.

“I’m not going to see it — I’m going to be long gone — but it’s going to be a state operation, like probation,” he said. “Eventually the state is going to have to take it over because the way it is, it’s just not working.”

Advocate staff writers David Mitchell, Bryn Stole and Billy Gunn contributed to this report.