Fifth Circuit Hears Challenge to Public-Defender Wait List

(CN) – Attorneys for the American Civil Liberties Union and public defenders seemed to agree before the Fifth Circuit on Monday that a waiting list for representation in Louisiana violates poor defendants’ rights to a speedy trial and assistance of counsel.

While the state has taken steps to mitigate the budget shortfalls that led to the waiting lists, the problem wasn’t solved, attorneys said.

“Our position is that this is an issue that may come up again,” said attorney Sara Valentine, who represented public defender Derwyn Bunton. “And this is an issue that we believe there is a constitutional violation. Once a court has identified a constitutional violation, it has broad authority.”

This prompted the panel of Fifth Circuit judges to ask: Where was the controversy between the ACLU and the Louisiana Public Defenders Office? Did they actually have an adversarial relationship?

In January 2016, the ACLU filed a federal class action on behalf of three people accused of crimes – including armed robbery and vehicular homicide – who were put on a waiting list until a public defender could represent them.

While the complaint said the Louisiana Public Defender’s Office represents 85 percent of criminal defendants in the state, its funding comes mostly from the collection of fines, such as traffic tickets, which the ACLU argued is an unreliable revenue stream.

The lawsuit named as defendants Bunton, chief district defender for Orleans Parish, and Louisiana State Public Defender James T. Dixon Jr.

Because they were waiting to be assigned public defenders, the plaintiffs in the suit were unable to challenge bail conditions or preserve evidence that might help their defense, and they languished in pretrial detention, according to the lawsuit.

The ACLU asked the court for declaratory relief finding the system of waiting lists for public defenders violates the Sixth and 14th Amendments, but a judge dismissed the case, prompting an appeal to the Fifth Circuit.

When ACLU attorney Brandon Buskey stood to make his case Monday, the panel made up of U.S. Circuit Judges E. Grady Jolly, Jennifer Walker Elrod and Don Willett spent the time, in their words, “pounding” him with questions.

The big question was whether suing the public defender’s office in federal court was the best way to solve the problem.

Regarding the public defender’s work with the wait-listed individuals, Elrod asked, “Did they file speedy-trial motions to dismiss?”

“Did they pursue any relief whatsoever for this conundrum that the state court was creating by just continuing these proceedings over and over again?”

After asking a clarification question, Buskey said, “Not to my knowledge. The public defenders can speak to that, whether or not they filed any motion.”

“Well,” Elrod replied, “the fact that no relief was sought from the court that had the power to grant the relief is a big problem in this case.”

The judges suggested the suit was a public relations stunt designed to convince the Louisiana lawmakers to better fund the program.

It is the court’s job – not the public defenders’ — to appoint representation, the judges said.

Even though the public defender’s office is the first place a court goes to find representation for low-income defendants, they could even conscript lawyers standing in the hall. If the situation was so dire, the panel pointed out, the federal government could sue the state.

Attorney John Landis, who represented State Public Defender Dixon, told the court that the Louisiana Legislature made changes so that more money was going to fund the public defense of non-capital cases.

New Orleans also provided more cash so that by the time the lawyers stood before the Fifth Circuit on Monday, the plaintiffs in the case were no longer waiting for public defenders.

Only seven people accused of capital offenses were waiting for representation across the whole state.

But Landis said those actions did not solve the wait-list problem, and the ACLU and the public defenders office had submitted a negotiated consent judgment in the district court.

“While that may not require that the state Legislature provide funding,” Landis said, “I think it may well cause them to consider it.”

No timetable has been set for the Fifth Circuit’s decision.

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