Federal appeals court says Orleans judge owes $300K tax bill _lowres

Harry Cantrell

Matthew Aldous was arrested in January after he was accused of writing with a marker on the side of a Canal Street drugstore. When his case came before New Orleans Magistrate Judge Harry Cantrell, a public defender argued that Aldous posed no danger to the public if he was released.

So did a prosecutor.

Cantrell ordered the homeless man held in lieu of $10,000 bail.

Two months later, Aldous, 33, remains locked up in the city jail ahead of trial.

On Friday, civil rights attorneys filed a motion asking a federal judge to find Cantrell in breach of a U.S. District Court ruling that he should consider poor defendants’ ability to post bail before setting what could be an amount that's too high for them to reasonably be expected to pay.

U.S. District Judge Eldon Fallon said in August that the U.S. Constitution requires Cantrell to consider whether defendants can receive a lower bail amount or alternatives to money bail. If Cantrell found the defendants ineligible for either, he was supposed to explain why on the record.

The civil rights lawyers say that while Cantrell swore to the federal judge he’s following the judgment, Aldous’ case and others show a much different reality.

Cantrell pays lip service to Fallon’s decision with a boilerplate statement about poor defendants' rights before he runs roughshod over them, lawyers from the MacArthur Justice Center in New Orleans alleged.

They would like Fallon to issue an injunction directly ordering Cantrell to revamp his practices. If an injunction is granted and he fails to comply, he could be held in contempt of court and subject to financial penalties or jail.

Cantrell has yet to respond to the filing in court. But his lawyer accused the MacArthur Justice Center of cherry-picking unrepresentative cases.

“Judge Cantrell respects Judge Fallon and the federal court. The bail protocol he follows for arrestees appearing before him complies with governing constitutional law and Judge Fallon’s declaratory judgment,” said attorney Dennis Phayer in a prepared statement.

The bid for an injunction is the latest development in a 2017 lawsuit that has put Cantrell’s practices under a microscope.

Cantrell was a longtime magistrate commissioner before his election as judge in 2013. Every month, he sets bail for scores of defendants as they make their first appearance in court after their arrest on felony counts.

According to the civil rights lawyers, Cantrell routinely imposed a minimum $2,500 bail for every felony count without asking whether the defendants could make that amount or considering whether they would really pose a danger to the community if released.

Civil rights lawyers say the lawsuit is important because so many defendants in New Orleans are poor. Criminal District Court Judge Franz Zibilich has estimated that 95 percent of the city’s criminal defendants cannot afford an attorney. 

Civil rights lawyers have brought lawsuits over bail practices against judges around the country since the 2014 protests in Ferguson, Missouri, focused attention on the use of fines and fees to pad courts' budgets.

In the New Orleans lawsuit, Fallon found particularly damning the fact that Criminal District Court drew an unusually high percentage of its discretionary budget, about 25 percent, from fees tacked on top of defendants’ bails.

Cantrell had an inherent conflict of interest in setting bail amounts that were used to fund his court’s operating expenses, Fallon said.

Cantrell appealed that part of the ruling to the 5th U.S. Circuit Court of Appeals, and it remains effectively on hold. However, he did not contest the part of Fallon’s decision that faulted his inquiries into defendants’ ability to make bail.

The MacArthur Justice Center attorneys say court transcripts make it plain that Cantrell has not been asking defendants how much they can pay. In the case of the homeless man, Aldous, the judge couldn’t ask because Aldous didn't even appear in court. He was still in the jail detoxing at the time of his first court hearing.

Police said Aldous, who has a history of petty theft and shoplifting charges, was caught drawing on the side of the CVS drugstore at 800 Canal St. on the afternoon of Jan. 13. He appeared to be under the influence of alcohol, according to a police report. He was booked on criminal damage to a historic property, which carries up to a two-year prison sentence.

Aldous’ public defender, Jimmy Miller, warned Cantrell that a bail so high for a homeless man would amount to a “de facto detention order.”

But Cantrell said Aldous had missed two court dates on municipal charges. He also made a reference to "other circumstances and facts that were mentioned to the court earlier and on television."

The MacArthur Justice Center attorneys said the judge should have explained what he meant by that — and shouldn't have been using television reports to guide his bail decisions at all.

In another case, Cantrell set bail at $10,000 for a high school student accused of a vehicle burglary, the MacArthur lawyers said. The judge gave no explanation of why he thought the bail had to be that high, they added.

Phayer, of the Burglass & Tankersley firm in Metairie, said Cantrell always considers a multitude of factors with any defendant, including their finances. He would reserve comment on individual cases for his next court filing, he said.

“It is not a ‘one size fits all’ calculus," Phayer said. "He must balance the rights of the arrestees with the interests of the community he serves, all while complying with applicable federal constitutional law and state criminal law and procedure.”

Phayer added that in the case of somebody undergoing the jail’s detox protocol, like Aldous, the judge was “still required to set bail within the applicable deadlines. On those rare occasions when an arrestee is absent, the judge appoints a public defender to represent the absent arrestee’s rights and interests.”

A spokeswoman for the Orleans Public Defenders said the organization is working to find housing for Aldous if he is released.

The cost to the city of keeping the average person in custody at the New Orleans jail is $33.21 a day on top of the jail's normal operating costs, according to the Vera Institute of Justice in New Orleans, which favors bail reforms.

In the case of Aldous, that would translate to $2,125 since his arrest.

Follow Matt Sledge on Twitter, @mgsledge.