Class Decries Public Defender Shortages

     NEW ORLEANS (CN) – Budget shortfalls have straight-jacketed the state’s public defender’s office, and caused potentially innocent people to “languish indefinitely in jail without counsel,” a class claims in federal court.
     In the lawsuit, which was filed on Thursday in the Baton Rouge Federal Court, the American Civil Liberties Union claims on behalf the class that public defenders offices the state over rely on a $45 fee assessed on traffic tickets a system that is unique in the United States and uniquely flawed.
     Since this structure for funding is “inherently unreliable,” public defenders have continually faced funding emergencies that have forced offices into extreme measures, such as refusing clients, the complaint says.
     The lead plaintiffs in the case Darwin Yarls Jr., Leroy Shaw Jr. and Douglas Brown were all accused of committing felonies, arrested and held in Orleans Parish Prison. However, they say, they were never formally indicted or charged.
     With no access to an attorney, they say, they were unable to challenge their arrests, navigate bail, or eve investigate the accusations made against them.
     The lawsuit comes on the heels of an announcement last week the public defender’s office in New Orleans “will begin refusing case assignments due to chronic underfunding.”
     The announcement said the staff at the Orleans Parish Defender’s office “is too under-resourced and overburdened to provide constitutional and ethical representations to many defendants in Orleans Parish” and the office will stop representing “certain felony cases” this month.
     The plaintiffs are in jail on felony accusations but they have not been formally charged or indicted, their lawsuit says.
     They have been approved to receive the counsel of public defenders, but they have not yet received counsel due to “budgetary shortages and excessive caseloads,” meaning they “must languish indefinitely in jail without counsel” until the public defender’s office gets enough resources to provide them an attorney.
     “As long as OPD refuses to represent plaintiffs, their prosecutions cannot proceed,” the lawsuit says. “Meanwhile, plaintiffs have no access to an attorney for critical pretrial functions that would ordinarily be performed by defense counsel, such as conducting a preliminary examination to challenge their arrests and bail conditions; investigating the allegations; filing motions to preserve potentially exculpatory evidence; or negotiating with the prosecution.”
     Despite yearly funding from the legislature, the public defender system “overwhelmingly” relies on locally generated fines and fees for revenue, the lawsuit says, and in a system that is unique to Louisiana, about two-thirds of the public defender budget comes from a $45 fee assessed on traffic tickets.
     Since this structure for funding is “inherently unreliable,” public defenders have continually faced funding emergencies like the one in Orleans Parish, the complaint says. These crises have in turn forced offices into extreme measures like refusing clients, the lawsuit says.
     Without attorneys, the plaintiffs have no one to advise them on whether to request a preliminary examination under Louisiana law, wherein they could challenge probable cause for their arrests or argue to lower their bail conditions. Nor do they have someone to investigate their charges and prepare a defense, file motions to preserve potentially exculpatory evidence or other discovery, conduct additional bail advocacy, or negotiate with the prosecution.
     Since 2010, twenty-nine of the state’s forty-two public defenders have received emergency funding to avoid financial failure, according to the complaint.
     “Louisiana’s dysfunctional funding scheme has forced at least fifteen of its forty two defender districts to announce severe service restrictions in the past year,” the plaintiffs say.
     Lindsey Hortenstine, communications director for the Orleans Public Defenders Office, told Courthouse News, “We are currently refusing all serious class 2 felonies, including all charges facing life without parole (all homicides, rape, armed robbery, etc.).”
     “These are the level of case we have the fewest resources available. We currently have just 8 attorneys qualified to handle such cases,” Hortenstine said.
     “We certainly regret the hardship these refusals will have on our clients, community and the courts, but we simply no longer have the capacity to adequately and ethically represent these cases. We have now reached crisis level due to inadequate, unreliable and unstable funding of public defense in New Orleans and Louisiana,” she added.
     A note on the agency’s website says it is underfunded and unable to adequately assist the public:
     “OPD remains critically under-resourced, and far below parity in funding when compared to other criminal justice entities. Despite representing nearly 85% of all defendants in Orleans Parish, OPD’s budget remains half the size of the district attorney’s, with just one-sixth the city appropriation. Inadequate, unstable and unreliable funding and resources continue to compromise OPD’s ability to provide mandated legal services, brings higher costs in our criminal justice system, delays justice, and ultimately puts public safety at risk,” the website says.
     Presently, OPD has refused to represent at least seven clients, the lawsuit says. “It is unknown how many clients OPD will ultimately place on its waiting list for representation, and the number of clients on the waiting list will grow and fluctuate daily.”
     Named defendants are Derwyn Bunton, Magistrate Chief District Defender for Orleans Parish and James T. Dixon Jr., Louisiana State Public Defender.
     By not providing immediate counsel, defendants are discriminating against the poor, the lawsuit says, in violation of plaintiffs’ right to representation.
     The lawsuit was filed by Brandon Buskey and Ezekial Edwards of the American Civil Liberties Union in New York, and Candice Sirmon of the American Civil Liberties Union in New Orleans.

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