Legal Matters

LIMPING FORWARD Amid a funding crisis, criminal justice in Lafayette and across Louisiana has slowed to a crawl.

by Walter Pierce

Marx addresses volunteer attorneys at a March 9 orientation session.
Photo by Robin May

At the Lafayette Parish Bar Association office on Johnston Street during the lunch hour on March 9, more than three dozen attorneys, many of them civil-law lawyers with no professional experience in criminal law, got a crash course in criminal defense. First they got poboys.

More than half of them left the onehour session with cases scheduled to go to trial the next week. They will work these cases for free — “pro bono” in legalese — as a community service. Judicial District, leading to scores of indigent defendants — the poor accused of a crime who are appointed an attorney by the court because they can’t afford one themselves — having resolution of their cases indefinitely postponed.

G. Paul Marx, chief public defender for the 15th Judicial District
Photo by Robin May

The session was organized in part by District Judge Patrick Michot, who has presided over criminal trials in the 15th Judicial District for a quarter century and who put out the call to the Lafayette legal community seeking volunteers.

“My hope at this point is that we can limp forward instead of coming to a screeching halt,” Michot said after the session. “So if we can take care of some cases that wouldn’t have gotten taken care of, we’re still making progress, which is better than sitting back and waiting for the state to fix the problem.”

The problem is funding, or a lack thereof.

In mid-March, G. Paul Marx, the chief public defender for the district, announced that he was being forced to gut his staff, sending more than two dozen part-time contract attorneys packing and laying off or accepting the resignations of more than half the full-time staff.

“That’s where we are, short of getting $600,000 from someone for the rest of the fiscal year [ending June 30], and until we can do that, the only clients we’ll be able to represent are clients who are in jail — and we’ll probably have to prioritize those because we can’t possibly handle all of them,” Marx said not long after announcing the staff reductions.

The 15th JDC comprises Acadia, Lafayette and Vermilion parishes — a total population of just under 350,000 people. When it was fully funded, the local Public

Defenders Office employed 14 full-time staff attorneys — full-time public defenders are prohibited from having private practices — and 28 part-time contract attorneys who worked varying hours.

Last year the office handled nearly 13,000 new cases, more than half of which carried over to this year. In January Marx announced that his office would postpone representing misdemeanor defendants who aren’t currently in jail.

As a result, the situation in the threeparish judicial district has become a kind of triage: Only the most serious cases, i.e., felony defendants who are in jail, are being taken, and the case loads for the sharply reduced staff of public defense attorneys are exponentially mounting.

“We’re going to step up and do what we can do,” Marx said in mid-February. “The [American Bar Association] would tell us a lawyer has around 1,800 hours — around that number — a year to work. So, take 1,800 hours, and whatever number you want to divide into that tells you how much time we have for a client. If a lawyer has 300 cases, what is that, six hours [per case]?” “It’s a monumental issue,” says District Attorney Keith Stutes, who sees the issue from a prosecutor’s perspective but nonetheless appreciates how widespread the impact is on the criminal justice system in the district. “I’m very disappointed in a system that allows the process to come to a halt — the process of criminal justice — and that’s exactly what’s going to occur here.”

Stutes says he’s particularly disappointed in the way public defender offices in Louisiana are funded — through a mix of local sources and via the Louisiana Public Defender Board, the Baton Rougeheadquartered agency that oversees and allocates funding to public defender offices in the state’s 42 judicial districts.

Last year the 15th JDC received $1.2 million from the LPDB, down from $1.6 million just two years before that. Local sources of revenue for the office include court costs and fees and a share of traffic fines paid in the three parishes’ city courts, but those sources of revenue have been falling as well, in no small part in Lafayette, some have pointed out, because of the advent of electronic traffic enforcement, which has led to fewer traffic cops writing tickets. The local Public Defenders Office doesn’t get a cut of traffic citations issued by Redflex.

The lack of time public defense attorneys will be able to devote to individual cases and the fact that, for the foreseeable future at least, civil attorneys with exam-cram training are volunteering as criminal-defense lawyers could also lead to a spate of lawsuits by defendants who can legitimately argue that they were either not provided a speedy trial or were provided with sub-standard counsel, or both.

“No one seems to make much mention of the defendants — the people who are truly going to suffer here,” Stutes adds. “The defendants have a right to a speedy trial. Not only do they have a right to counsel, but they do have a right to a speedy and public trial — that’s also a constitutional right; we don’t hear about that.”

District Judge Patrick Michot
Photo by Robin May

Mimi Methvin is one of the attorneys who attended the volunteer orientation on March 9. She spent more than a quarter century as a federal magistrate in Lafayette and also worked for the Capital Defense Project of Southeast Louisiana in 2012 as part of the defense team in a high-profile child-murder case in Thibodaux. But it was a stint two years ago as a Louisiana Supreme Court-appointed judge in Opelousas where she got an excruciatingly up-close glimpse of the endemic defects that have long plagued criminal justice in Louisiana.

Attorney Mimi Methvin

“It was a wonderful experience to serve on the state bench, but it was also shocking to witness first-hand, on a day-to-day basis, the serious structural, financial and constitutional deficits of our state criminal justice system,” Methvin recalls. “The criminal dockets were huge — 150, 180, 250 [cases] — but there were only three, or at most four, public defenders available on any given day. Cases dragged on for weeks and months — even simple misdemeanor cases might require a defendant to be in court five 10-hour days before he or she was finally given a few minutes to meet with court-appointed counsel. Many of these people were trying to hold onto a job.”

The public defense system in Louisiana, Methvin says, “is beyond broken” because it is funded in large part by fines, fees and court costs.

Always bear in mind that Louisiana has for decades jostled with Mississippi for the distinction of being the poorest state in the nation. That means lots of indigent defendants.

“I feel sure one of the reasons Louisiana has the highest incarceration rate in the world is the fact that we rely upon convictions to fund the system,” Methvin says. “We are heavily invested in crime. Convictions allow us to impose a long list of court costs, penalties and mandatory fees passed by the Louisiana Legislature.”

Those revenue streams help fund district attorneys’ offices, clerks of court, probation offices, sheriff’s offices, law enforcement training, crime labs and often parish governments along with public defender offices. The prosecution of crime, in a very real sense, is a critical revenue stream.

This is not lost on the Louisiana Public Defender Board, which in December of last year released a report, “Criminal Justice at a Crossroads,” that cited state funding cuts and other factors and warned of a looming financial crisis for many of the public defender offices in Louisiana’s judicial districts. The 15th JDC was identified as one of the first to face financial exigency. Since that report was released, the Public Defenders Office in the 27th JDC headquartered in Plaquemines Parish announced it would indefinitely close.

A big part of the problem, says one former public defense attorney in Lafayette who resigned from the office before the current financial crisis and asked not to be identified for this story, is the top-heavy structure of the funding system for indigent defense in Louisiana. The Louisiana Public Defender Board was created by the Legislature in 2007 to address chronic under-funding in the state’s poorer parishes, our source says, but the creation of the LPDB created an expensive bureaucracy.

“By making [the funding] statewide, they could better fund the poor parishes, but everything else has been a disaster,” says our source.

“I believe there should be a good source of funding for public defense,” says D.A. Stutes. “But what I absolutely disagree with and what I’m disappointed in is that this fight is in some part due to bureaucracy. Has there been an adequate accounting of funds that have been entrusted to the public defenders? Has that bureaucracy aided in any way this financial crisis? I don’t know the answer to that.”

Our anonymous source also theorizes that with inadequate funding under the LPDB, local public defender offices have a harder time securing the services of experienced criminal defense attorneys, who can command much higher salaries in private practice.

With a small phalanx of volunteer lawyers working for free aiding the local public defender office, it remains too soon to tell how the funding crisis will shake out in our three-parish judicial district. But all parties — prosecutors, judges and defense attorneys — generally agree on one thing: It will be a long time, years probably, before the local criminal justice system is able to function smoothly and efficiently again, even if the funding crisis is fixed sooner than later.

Attorney Caitlin Graham
Photo by Robin May

“We really don’t know the extent yet because we’re talking about 35 out of 52 [contract and full-time] lawyers got fired,” says Caitlin Graham, a 20-something attorney who came to Lafayette in 2013 fresh out of law school in San Francisco to work in Marx’s office. “The repercussions of that in terms of dockets, in terms of case loads, we can imagine but we don’t know what that will look like going forward. But I can assure you that it will be incredibly difficult for us and our clients.”

Graham traveled to Baton Rouge Feb. 16 to rally with other lawyers and justice advocates on the steps of the Capitol. She was lured to Lafayette by ideals of justice that motivate a lot of young attorneys, and she’s now getting a first-hand taste of the chronic dysfunction that Louisiana is famous for in so many areas, criminal justice notwithstanding.

“I saw what Paul Marx was building here, his vision and where he was trying to go with the office, and it was something that I deeply believed in and wanted to be a part of, and in the past three years I’ve seen incredible transformational change happen within the 15th Judicial District — not just in Lafayette but in the rural parishes as well,” Graham says, betraying dismay at the crisis imperiling the office’s work. “I have no idea how anything is going to get through the court system; how any kind of adequate representation will be possible.”

There have been scattered rumblings within the Lafayette legal community that Marx hasn’t operated the office as efficiently as possible — a suggestion that attorney Thomas Alonzo calls “total BS.”

“To me, Paul Marx raised the quality of the Public Defenders Office to a level that it’s never been,” says Alonzo, who was one of the casualties of the staffing reduction in the local office in February.

Yet a quality operation that functions on high-minded ideals is only as good as its funding, and for now the 15th JDC’s Public Defenders Office is limping forward.

Judge Michot, who put out the call for volunteers, says he’s grateful for the response, even if it only serves as a tem porary stop-gap on a massive breach.

“I understand that most of [the volunteer attorneys] won’t be ready to go to trial [immediately], but they can at least get started on the cases, and we’ll just have to do it that way,” Michot says with a sigh. “There will probably be a lot of continuances in the beginning.”

Josette Abshire, the Lafayette Bar Association’s executive director, says she wasn’t surprised by the response from the local legal community.

“There’s a need, we need to step up, we need to figure out how we’re going to help these people who need help,” Abshire says.

She’s echoed by Methvin, who attended the volunteer orientation: “It is one thing to observe, analyze and criticize a broken system. It is entirely something else to step into the breach.”

Crisis in Public Justice: Impact of Budget Shortfalls

on Public Defenders Office

1 p.m. Tuesday, April 5
Lafayette Parish Sheriff's Office
Public Safety Complex
1825 W. Willow St.

**_Former federal prosecutor Donald Washington will moderate this forum featuring Paul Marx, 15 JDC public defender, District Attorney Keith Stutes and District Judge Marilyn Castle