With about a third of annual state funding for public defense going to private law firms representing clients facing capital murder charges, Louisiana’s public defender board finds itself on the hot seat.
Many local public defender offices are struggling financially, laying off staff and pulling out of some of their cases. Facing this “restriction of services” in courts across the state, the Louisiana District Attorneys Association and the East Baton Rouge Parish District Attorney’s Office are making an issue of the capital spending priority, accusing the state public defender board of fiscal mismanagement and an underhanded attempt to abolish the death penalty.
The state public defender, who is hired by the Louisiana Public Defender Board, vehemently denies the accusations, saying the group spends its insufficient resources responsibly.
Board officials say the expenditure on death penalty litigation actually helps local offices, as state-funded non-profit firms take over these complicated and expensive cases.
LDAA executive director Pete Adams said he can’t understand the focus on capital cases, saying the state public defender board is ignoring “fiduciary responsibility to taxpayers with misguided fiscal priorities.”
“When you run out of money, you have to make tough choices. Are you going to spend a third of your state money on capital prosecutions, of which there are very few?” he asked.
East Baton Rouge Parish District Attorney Hillar Moore III noted that the state board is better funded today than at any time in its history, saying offices should be able to make ends meet.
“No question they’re holding us hostage to obtain more funding. That’s all it is,” he said. “It affects public safety.”
The dispute has spilled over into the Louisiana Legislature, where a bill that would reconfigure the legislatively-created LPDB and require it to allocate 65 percent of its annual funding to local public defender districts has cleared the House of Representatives and moved to the Senate side. The measure, by Rep. Sherman Mack, R-Albany, has been referred to the Senate’s Committee on Judiciary B.
Some local public defenders agree with the bill’s goals. With roughly 33 of the state’s 42 public defender districts restricting the services they provide, Reginald McIntyre, the chief public defender for the 21st Judicial District of Livingston, St. Helena and Tangipahoa parishes, says its vital that local districts get as much money from the LPDB as possible.
“I don’t like to see any district in (restriction of services). It damages the system,” he said, noting that the 21st Judicial District Public Defenders Office has been financially fortunate enough not to have to curtail services. “Without the public defender offices, you don’t have a smooth running court.”
State Public Defender Jay Dixon acknowledges the LPDB has been spending about a third of its $33 million state appropriation on capital cases: Nearly $6 million on trial level capital representation through contracts with the Baton Rouge Capital Conflict Office, Capital Defense Project of Southeast Louisiana in New Orleans and other nonprofit law offices; and another $4 million-plus on capital appellate and post-conviction representation, again through contracts with groups such as the Capital Post-Conviction Project of Louisiana and Capital Appeals Project, both in New Orleans.
But Dixon disputes the narrative being pushed by prosecutors.
Money needs to be spent on capital cases because the stakes — a possible execution if a defendant is found guilty — are so high and the work is so labor intensive, he said.
“It’s not that we prioritize capital (cases) over everything else,” he said.
He also noted that the state board was not created to totally fund the 42 public defender districts but to supplement the bulk of their funding that comes from court fees.
Dixon said the total public defense budget in the state is $66 million, when the local funding is included, so the state board is spending only a sixth of that budget on capital murder cases. He also says 75 percent of the total public defense funding goes to local districts.
He bristled at the suggestion that the private law firms his office contracts with to handle capital cases are getting rich off the setup.
“I can’t think of a more economical use of your funds. We go with nonprofits,” he said. “The myth that they’re making millions is a bunch of hooey.”
The tensions over how public defender money is spent have been building for some time. Last spring, Adams wrote a response to a 2014 Louisiana Public Defender Board report calling for additional state funding. He complained public defenders were essentially ginning up a crisis.
“An intentionally created fiscal emergency should not be accepted nor rewarded without verification,” Adams wrote in his April 2015 response to LPDB report. “The threat of a work stoppage and appointment of private counsel to do the work of state and local agencies is designed to build support for additional LPDB funding.”
The Legislature created the state board in 2007, replacing the 40-plus different local panels into one statewide entity. It was a move that won support from many in the criminal justice system and across the political spectrum, part of a push to beef up standards for public defense work and impose caseload limits for lawyers.
The LPDB’s members are appointed, with the governor naming six of the 15 members. The rest are chosen by the Louisiana Supreme Court chief justice, the Louisiana State Bar Association president, Louisiana Association of Criminal Defense Lawyers, the Senate president, Louis A. Martinet Society, Louisiana Interchurch Conference executive director, and Louisiana State Law Institute’s Children’s Code Committee.
“The idea is to get a broad cross-section of the state,” Dixon explained.
Prosecutors complain there are no local public defenders on the state board.
But Dixon says having a public defender presence on the board would be a conflict of interest, as the board not only dispenses money, but also requires the attorneys in local offices to meet certain standards.
Dixon says nobody except the district attorneys believes that public defense in Louisiana is sufficiently financed, adding that prosecutors far outspend public defenders.
And he rejects the allegation that funding capital defense organizations — who handle cases across the state — is geared toward doing away with the death penalty. “That is not what we’re here for,” he said.
Jean Faria, the LPDB’s capital case coordinator, said all but four of the local public defender districts — the 15th (Acadia, Lafayette and Vermilion parishes), 21st (Livingston, St. Helena and Tangipahoa parishes), 36th (Beauregard Parish) and 41st (Orleans Parish) — have turned over capital case representation to the state board, which in turn contracts those cases out to nonprofit law firms that exclusively handle capital cases.
Across the state, Faria said public defenders with capital-case certification are “pulling themselves out in droves,” or giving up capital defense work, which makes the nonprofit capital conflict groups even more vital.
“Doing capital defense is not financially rewarding. It’s a losing proposition,” Dixon added.
Some public defenders have said the certification and recertification processes have become so cumbersome that gaining or retaining capital certification is no longer worth the trouble.
Nineteenth Judicial District Public Defender Mike Mitchell, who recently announced layoffs of some staff, investigators and non-capital contract lawyers, said he is the only remaining certified capital-case lawyer in his office. Just a few short years ago, his office had no less than five. One of those was Margaret Lagattuta, who was certified but decided not to seek recertification.
“There are many difficulties and obstacles for an attorney to practice capital defense,” Lagattuta said. “There is no discretion in choosing experts and mitigation specialists.”
Lagattuta also complained that these cases are “micro managed” by the state board.
Dixon and Faria said capital murder cases are inherently expensive due to the stakes involved and become even more costly when medical experts enter the equation.
Both declined to put a cost estimate on the price of defending an average death penalty case, which requires two certified lawyers per defendant.
“There’s nothing average about (those) cases,” Faria stressed, adding that Louisiana spends far less than many other states on capital defense work. Dixon said all states have those who argue too much money is spent defending capital cases.
The combined number of new and pending capital cases handled by local public defender districts and the contract offices has fallen steadily, from 235 (135 by the districts and 100 by the contract groups) in 2008 to 131 (75 by the districts and 56 by the contract firms) in 2013, according to LPDB records.
If the LPDB takes a big hit in next year’s budget — something every agency is preparing for as legislators consider ways to fill the state’s budget deficit — Dixon said the agency has proposed a 65 reduction in capital defense spending, a cut that could bring capital cases to a halt.
“You can’t provide what you can’t pay for,” he said.
Moore and Mark Dumaine, his chief of administration, argued the financial picture for public defenders in general would be much rosier if they would collect the $40 application fee that indigent defendants are supposed to pay. Moore said only about a fourth of that money is being collected in East Baton Rouge Parish, leaving more than $1 million outstanding. Across the state, he said, local public defenders collect less than 20 percent of the application fees to which they are entitled.
Moore said judges could order payment, which would resolve a possible conflict of interest for public defenders who don’t want to demand money from clients who say they can’t afford an attorney.
That conflict is an issue for local offices, Dixon said, but he welcomed the state to assume the collection efforts.
“That $40 is almost a red herring. I invite the state to hire a collection agency to do it for us,” he said. “Good luck.”