Longtime judge faces first challenger _lowres

Judge Todd Hernandez

A lawsuit challenging Louisiana's public defense system should be deemed a class action because tens of thousands of poor people accused of crimes are at risk in the troubled system that lacks money and oversight, a Baton Rouge state judge was told Tuesday.

Mark Cunningham, who represents the five individual plaintiffs in the suit, argued to District Judge Todd Hernandez during a class certification hearing that the risk for people lacking access to adequate legal counsel is jail time.

"The liberty at stake in this case is the greatest liberty we all have — our freedom," Cunningham said.

"The system is broken. We know they are at risk," he added of the state's current and future indigent defendants.

Remy Starns, who represents the named defendants in the suit, asked Hernandez to deny the class certification motion. The defendants named in the suit are Gov. John Bel Edwards, members of the Louisiana Public Defender Board and chief state Public Defender James Dixon.

Starns argued, among other things, that the proposed class is "shockingly broad" and said only the Legislature can address the funding issue. Starns also said the named plaintiffs have suffered no actual injury but instead complain they are at risk.

Cunningham replied that such a risk "should not have to be endured." The risk, he said, is being assigned an attorney saddled with an excessive caseload and no money to hire an investigator or experts.

"They care about their clients but there are not enough hours in the day," Cunningham said of public defenders.

Hernandez took the arguments under advisement.

The lawsuit, filed in February 2017 in East Baton Rouge Parish by a group of nonprofit and private law firms, seeks a court-appointed monitor to oversee the state's public defense system.

That system relies heavily on criminal fines and fees — mostly from traffic tickets — for its survival. Funding varies widely from parish to parish and is subject to the fluctuating number of tickets issued.

A 1963 U.S. Supreme Court ruling in Gideon v. Wainwright requires states to provide lawyers for defendants unable to hire their own.

Cunningham argued Tuesday that Louisiana's overburdened public defenders are essentially "triage" lawyers.

"That's not Gideon's promise," he told Hernandez. "We're asking this court to fulfill Gideon's promise."

Cunningham also argued that "not having money is not an excuse for a constitutional violation." He said the Edwards administration must do a better job of prioritizing its financial resources.

Starns pointed out that the governor recently signed into law a criminal justice reform package called the Justice Reinvestment Act.

"I take great exception to the suggestion that Gov. Edwards has done anything wrong here," Starns told the judge.

Starns also called Dixon, the state public defender, a "fantastic public defender."

About $30 million in annual state funding meant to supplement the revenue from fines and fees has done little to ease bloated caseloads that stand well above state standards in nearly every district defender's office, the suit claims.

On average, public defenders in Louisiana handle caseloads that are double the maximum recommended under state Public Defender Board standards, the suit says.

Follow Joe Gyan Jr. on Twitter, @JoeGyanJr.