A shortfall in funding to pay for the lawyers who would typically represent poor defendants is beginning to wreak havoc at New Orleans’ criminal courthouse.

Scores of criminal defendants have sat in jail without lawyers since Chief Public Defender Derwyn Bunton’s office last month began turning away serious new felony cases and withdrawing from others.

On Tuesday, a prominent local attorney assigned by a judge to handle one of those cases argued that routinely saddling private attorneys with that work violates the state and federal constitutions, amounting to an illegal “taking” of their property.

Mark Cunningham, a partner in the Jones Walker law firm and president of the Louisiana Bar Association, asked to withdraw from the case of an accused armed robber, Donald Gamble. Criminal District Court Judge Arthur Hunter had assigned Cunningham to represent Gamble pro bono after Bunton’s office implemented its controversial austerity plan last month, turning away cases.

Cunningham also urged Hunter to halt Gamble’s prosecution until funding could be found.

The move marked the latest maneuver aimed ultimately at pressuring or forcing the Legislature to strengthen state funding for indigent defense.

Last month, the American Civil Liberties Union of Louisiana brought a federal lawsuit against Bunton’s office for declining to represent three defendants. The suit indirectly takes aim at a state legal aid system financed mostly by fines and fees levied on convicted defendants — mainly traffic scofflaws.

Statewide, fee revenue has withered by about 25 percent over the past five years, said Jay Dixon, president of the Louisiana Public Defender Board.

Hunter, who has championed the cause of indigent defense funding in the past, declined to let Cunningham out of the case but agreed to halt the prosecution while Cunningham appeals the ruling. In the meantime, Gamble, 27, will bide his time in the Orleans Parish jail.

At a hearing Tuesday, Cunningham acknowledged that lawyers have an ethical obligation to accept pro bono work but said his firm has done more than its share.

“What I see happening here in Louisiana is not the appointment of a private lawyer in isolated cases here and there. I see a systematic appointment of private attorneys throughout the state to address a crisis in the public defense system. In that regard, I think the courts are overstepping the bounds,” Cunningham testified. “We don’t tell engineers to go build bridges or roads for free. We don’t tell doctors they have to subsidize the health care system for free.”

Dixon, whose board doles out about $34 million in state indigent defense funding, said judges in Caddo, Vernon, Bossier and other parishes also are appointing private attorneys.

In New Orleans, Bunton said his office has refused about 20 new felony cases since last month and withdrawn from more than 40 others as experienced public defenders leave his office amid steep cutbacks and a hiring freeze aimed at plugging a $700,000 deficit. Bunton’s budget now is about $6.3 million.

Different judges have responded in different ways. Criminal District Judge Tracey Flemings-Davillier this week threatened to hold public defenders in contempt for refusing to accept appointments.

Bunton’s office returned to her courtroom Tuesday morning to grudgingly enroll in those cases, averting a showdown. Dwayne Thomas, who faces attempted murder, illegal firearms possession and battery charges, got himself a new lawyer: Bunton himself.

Ellis Knight, out on $5,000 bond while facing a home invasion charge, said he’s been without counsel since December, when his public defender left the office. He also got a new free lawyer.

“I’ve been waiting too long,” said Knight, 38. “I’m really just tired. Every time you come, they ain’t pushing the issue. I got kids I got to look after. It’s messing everything up.”

The fact that Tuesday’s hearing in Hunter’s courtroom took place on Groundhog Day wasn’t lost on the attorneys. Montgomery’s lawyer, Jim Boren, lamented a decades-long series of crises and drastic actions to force the state to pony up for public defense.

“We do not get the same reception that other people do when they go (to the Legislature) advocating for money,” Boren said. “I don’t know of any other way except for a court to have the courage and conviction to say, ‘The system is broken.’ It’s not up to the bar association to solve the problem. It’s up to the state to solve the problem.”

Advocates are looking to U.S. District Judge James Brady of the Middle District of Louisiana, who is overseeing the ACLU suit, as the legal challenges play out.

Tulane law professor Pam Metzger, who represented numerous jailed defendants who were left without lawyers in the wake of Hurricane Katrina, recently was appointed to represent a half-dozen defendants in Hunter’s courtroom — not in their criminal cases, but to fight for their right to due process.

Metzger said the funding crisis is not just weighing on the defendants or lawyers.

“It’s putting the judges in this wholly untenable position. They’re asked to sit and guarantee fair and impartial trials in a situation where everybody knows there’s nothing fair about it,” Metzger said. “What’s different now is it’s not just an Orleans Parish problem. It’s not just a Katrina problem. It’s a statewide constitutional failure.”

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