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Judge threatens to free men accused of violent crimes if Louisiana doesn’t provide attorneys

Los Angeles Times logo Los Angeles Times 4/9/2016 By Matt Pearce
Judge Arthur Hunter Jr., poses for a photograph in his chambers in New Orleans in 2006. Judge Hunter has freed four criminal defendants from jail and postponed their trials until adequate defense council can be appointed. © Alex Brandon/AP Photo Judge Arthur Hunter Jr., poses for a photograph in his chambers in New Orleans in 2006. Judge Hunter has freed four criminal defendants from jail and postponed their trials until adequate defense council can be appointed.

Each of the seven defendants has been charged with a serious crime — including murder, rape, armed robbery or assault with a firearm.

Now a Louisiana judge is threatening to set them free before their cases have a chance to go to trial.

In an effort to pressure state lawmakers to provide more reliable funding for public defenders, Orleans Parish Judge Arthur Hunter Jr. on Friday ordered that all of the men be released on the grounds that the state is violating their right to a competent defense.

The judge immediately stayed his own ruling pending an appeal by the district attorney’s office, meaning the men will remain jailed while attorneys continue to battle each other in court over an issue that has plagued Louisiana for years.

The defendants have been jailed for months without legal representation.

“These defendants are currently being deprived attorneys to the extent that raises serious concerns whether they will ultimately receive effective assistance of counsel,” Hunter wrote in his order. “This is especially true for defendants in jail, who are virtually powerless to obtain a lawyer on their own or to begin working on their own defense.”

The U.S. Supreme Court has ruled that criminal defendants have a right to a competent attorney, and so across the United States, the poorest defendants are represented by government-funded defense attorneys.

Those attorneys often say they are underfunded and overwhelmed by massive caseloads, raising the question of whether their clients’ rights are being met.

The issue has been particularly acute in Louisiana. In contrast to the situation in most other states, its public defenders’ offices are funded by fines and traffic tickets from their local parishes. Critics say that arrangement has created an unstable funding system, leading to a crisis around the state.

In December, the Orleans Parish public defender’s office — which handled more than 20,000 cases in 2015 with just a few dozen attorneys — announced that it would stop accepting some cases as the office struggled under devastating budget cuts, unpaid furloughs and heavier caseloads.

The office has refused 110 cases since January, said Lindsey Hortenstine, a spokeswoman there. The office now has 42 defense attorneys, with about 10 who are capable of handling serious crimes.

“We started refusing the most serious cases — the ones facing life without parole — murders, rapes, your most serious felonies,” Hortenstine said. “That’s where we have the least capacity in the office to handle.”

In response, private attorneys have been appointed to handle those cases.

Those attorneys have not gotten funding for the cases. One defendant, Darrian Franklin, who is charged with second-degree murder, has gone without representation for 138 days.

“We are now faced with a fundamental question, not only in New Orleans, but across Louisiana: What kind of criminal justice system do we want?” Judge Hunter wrote. “One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?”

The prosecutor’s office did not immediately respond to a request for comment.

Pamela Metzger, a Tulane University law school professor who was one of the attorneys appointed to represent the men, called the judge’s ruling “an act of judicial and moral courage.”

“I went into court and said, ‘If there’s no money and no date when there’s going to be money, you have to release these people,’” she said. “You can’t hold them in jail with no lawyer and no date when they can get lawyer.”

The problem has been decades in the making and won’t be resolved until legislators uncouple funding for public defenders from police fines and traffic tickets, Metzger said, because using fines and tickets to fund them “is completely disconnected to need, it’s entirely unstable, and it’s dependent on other people’s behavior that the public defender doesn’t control.”

“This is the systemic, persistent, catastrophic failure of the Legislature to provide indigent defense with a stable, predictable, reliable source of funding,” she said.

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