Chasing Gideon (23 page)

Sheriff Gusman shut down the House of Detention, one of the most dilapidated buildings, on April 10, 2012.
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Then, three weeks after the Southern Poverty Law Center filed its class-action suit, the Department of Justice sent a letter to the New Orleans sheriff on April 23, citing the “alarming conditions” at the prison.
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The inspection uncovered “shockingly high rates of prisoner-on-prisoner violence and officer misconduct,” including reports of “widespread sexual assaults, including gang rapes,” a “pervasive atmosphere of fear” due to understaffing and reliance on appointed prisoners “to provide security supervision through ‘Tier Reps.'” The detailed list of “largely uncontestable” constitutional violations runs twenty-one pages.

Then on May 1, the Southern Poverty Law Center asserted that things were growing even worse in the jail and filed for a preliminary injunction, asking a federal judge to intervene immediately.

All of these troubles make it more difficult for prisoners to receive adequate defense. The sheriff, who in many ways is all-powerful in the city, makes it hard for public defenders to protect their jailed clients. Indeed, he can even make it difficult for them to talk to their clients. Consider: At the same time as the Southern Poverty Law Center was decrying conditions at the jail, the public defender's office, which had also filed a suit against the jail—this one in an effort to force the sheriff to allow the public defenders better access to their clients—reached a tentative agreement with the sheriff mapping out new rules. Public defenders had long complained that it regularly took two hours or more for deputies to produce their clients when the attorneys visited the jails. The sheriff's deputies also commonly failed to produce prisoners in court when they were scheduled to appear. (This ties the public defender's hands and slows the progress of the case when delays pile up.) Further, the hours were very restricted as to when lawyers were even allowed to meet with their clients in jail; many of the buildings had no place for lawyers to have a private conversation with clients and, in the lawsuit, public defenders alleged that their conversations were being monitored and recorded. The new agreement mandated a minimum of seven hours a day and three hours per evening for lawyers to meet with clients, that a space be provided for “confidential” if not totally private meetings, and that prisoners be produced within thirty minutes of attorneys' requests.
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“The good news is, lawyers are complaining because they can't get enough access to their clients,” says Tulane Law School's Pam Metzger, explaining that before the hurricane, public defenders hardly bothered about access to their clients in jail, mostly talking to them on the fly in open courtrooms. “The bad news is, there is such resistance from the sheriff.”

And in Louisiana, sheriffs have extraordinary clout. “The two most powerful people in any parish in Louisiana are not the mayor and city council chair, but the sheriff and the district attorney,” says Loyola Law School's Steve Singer. That's because in New Orleans,
for example, there are term limits for the mayor and city council but not for the sheriff and DA—so they can often just ride out the storm of an unruly city council or combative mayor. Indeed, Charles Foti Jr., who served as sheriff until 2003, held the post for almost three decades (after a short interim sheriff, current Orleans Parish sheriff Marlin Gusman was elected in 2004). The district attorney, Harry Connick, was there from 1973 to 2003.

Meanwhile, a battle rages over construction of a new jail facility—and how big it will be. “The sheriff wants this massive jail so he can have his own fiefdom,” insists Norris Henderson, one of the few folks willing to speak on the record against the sheriff. The jail in the pre-Katrina days housed 6,700 inmates, by 2012 that number was approximately 3,500,
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and in February 2011, the city council passed an ordinance agreeing to cap the number of beds at 1,400.

This is going to require a massive and coordinated rethinking of how business gets conducted by the police, district attorneys, and sheriff. In an effort to get more nonviolent offenders released on their own recognizance while awaiting trial, the New Orleans sheriff finally agreed to allow the Vera Institute of Justice, a national nonprofit, to start a pretrial release program in the jail in spring 2012. When I visited the jail, three weeks after the introduction of the program, pretrial release staffers were interviewing newly arrested men, collecting data on their history, education level, criminal background, employment situation, and so forth to assess whether the person was going to be a danger to the community or a flight risk. For example, pretrial folks might verify an inmate's employment status—and if the person has a job and has worked consistently for more than two years at the same job, statistical analysis tells us she or he would be more likely to show up for court. This would be considered a positive point and be factored into a simple, total score. New Orleans joins 400 other pretrial programs in the country in using an empirical, evidence-based evaluation of defendants to come up with a score for judges to use in deciding whether or not to release defendants when they first appear before them. Aside from the huge cost saving to taxpayers by cutting down on the number of jailed defendants awaiting trial, it strengthens rather than severs a defendant's ties to the community.
If a defendant is released pending trial, he or she can still go to work or school, keep up with rent or a mortgage, make car payments, and pay child support. (For example, one 19-year-old I spoke to in the New Orleans jail had been arrested for marijuana possession. He was in a GED program and would lose his slot if he failed to attend class—not to mention falling behind in his studies.) While such programs have the potential to shift the lay of the land in the criminal justice world, they meet with resistance from different quarters, including the bail bonds lobby, which stands to lose millions if the programs are widely adopted. But advocates say such programs have a host of advantages, not least among them leveling the playing field between rich (who simply post bail and get out) and poor (who frequently can't raise the necessary funds, some 53 percent of those arrested for felonies, according to a 2012 report by the American Bar Association
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). In another important discrepancy designed to be addressed by the pretrial release program, black defendants awaiting trial in New Orleans on nonviolent felonies in 2010 averaged 54 days in jail while white defendants averaged 31 days according to a 2012 report, “Important Trends in Jail and Pretrial Release” by pretrial consultant James Austin, PhD. These discrepancies can have a huge impact on communities.

In a May 2012
Times-Picayune
article, reporter John Simerman drew on a 2009 Columbia University study of the small inner-city neighborhood in New Orleans called Central City. It had 4 percent of the overall population before Katrina, but 8 percent of its residents were imprisoned. Further, Simerman observed, cops regularly did “sweeps” in the neighborhood. In a single, small “sparsely populated four-block area” of Central City, they made ninety-eight arrests in the last two years (60 percent of them for drugs). The Calliope Projects, where Greg Bright was arrested in 1975, sit just outside the edge of that neighborhood.

“When I went to prison, I could hardly read my name,” says Gregory Bright today. He had dropped out of school in sixth grade to help take care of his sisters and his father, who was disabled by arthritis and bedridden. “When he took ill, I used to read the Lord's Prayer to him. He would help me and I could stumble through it.” While
he sat in jail at “Tulane and Broad,” which had no library but had some magazines and “lots of religious stuff,” he slowly taught himself to read
The Watchtower
. “I began to underline all the words I recognized from the Lord's Prayer.” After being found guilty in 1976, he was moved from the New Orleans jail to Angola Prison. There, he found a pile of law books that were being thrown out. “I got some of those books, set on my locker, and read them books. Read 'em and read 'em. That's how I come to read, and how I come to know the law.”
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The more he discovered about the law, the more indignant he grew about the way his case was handled. “I'm watching my twenties, my thirties, my forties disappear,” Greg says. “I'm in prison year after year, and in the presence of guys who been there twenty years before me. So I know it's a reality that a life sentence in Louisiana is a life sentence. I could see that.”

At the time—and this remains true today—indigent “lifers” were not entitled to an attorney for post-conviction proceedings in state court. While there is more rigorous attention to this in death penalty cases, in Louisiana and other states, lifers have no right to counsel. Instead, what the state of Louisiana provides is what one attorney characterized as “authorizing the unauthorized practice of law by prisoners.” In essence, the Department of Corrections will appoint an inmate who is typically self-educated in the law. A guard will give him a typewriter, a computer (without Internet access), some paper, a day or two of training, and a certain amount of freedom to talk to “clients.” Called inmate counsel substitutes, they are required to have a GED and attend twenty-four hours of training. (A previous paralegal training program was defunded.) In addition to handling minor, simple legal matters, they also take on hugely complicated cases and appeals. Calvin Duncan, a counsel substitute at Angola for twenty-three years until he was freed in 2011, was described by Emily Bolton, director of an organization called Innocence Project New Orleans, as a rare and skilled exception to the otherwise undereducated jailhouse lawyers. Duncan entered prison with a ninth-grade education when he was nineteen and notes proudly that he initiated certain noncapital appeals in fellow inmate Juan Smith's case, which included a first-degree murder
conviction that went all the way to the Supreme Court in 2012, where it was overturned in an 8-1 decision.
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Still, as Bolton notes, such good legal representation is extremely rare—and real lawyers took over the Smith case. Currently, at Angola Prison, sixty-one counsel substitutes practice law for their five thousand incarcerated clients.

In this manner, but largely through his own initiative, Greg Bright appealed his conviction and tried desperately over the years to procure the documents he knew would help prove his innocence. Between them, he and Earl Truvia made dozens of requests for documents—such as copies of the original police report, the coroner's report, and trial transcripts—from every conceivable government body in the state of Louisiana, including the Department of Agriculture.

Very quickly on the heels of the trial, Earl's attorney appealed the conviction. But no appeal was filed for Greg, because his original attorney Robert Zibilich missed the deadline. According to court documents, Zibilich sent a one-sentence letter to the court saying that Gregory Bright “adopted” the appeal of “Carl Truvia” (sic). But on March 15, 1978, the state supreme court upheld the convictions.

Greg went on to use the knowledge of the law that he gleaned from his prison studies to represent himself in two post-conviction applications. In 1982, he tried to claim ineffective assistance of counsel and denial of compulsory process. He lost that, as did Earl. In 1991, he again argued that he had ineffective counsel, that there was insufficient evidence, and that the jury had received the wrong instructions. He lost that. He also filed a federal habeas corpus application by himself (as had Clarence Earl Gideon some thirty years earlier, similarly insisting he had been wrongly imprisoned), again arguing he'd received ineffective counsel. A certificate of probable cause was granted, but only on the narrow issue that his attorney had failed to call any alibi witnesses. There was a hearing on the issue in May 1982 in which Haggerty and Zibilich were called to testify. Haggerty, who had himself been an assistant district attorney for more than eleven years, clearly did not believe for a minute that his client was innocent. Testifying in 1982 that he saw Sheila
Robertson's name on the witness list and questioned Earl about her, Haggerty said: “He feigned complete ignorance of Sheila Robinson [sic], claimed he didn't know anything about it.”
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By arguing that their failure to call any witnesses was a tactical decision—and a wise one, at that—the two lawyers managed to protect their reputations and tossed Greg and Earl to the wolves.

Meanwhile, Greg kept requesting copies of the police report, which he knew existed in fairly detailed form since on the stand at the trial a detective had been handed a copy of it by the prosecutors to help refresh his memory. In 1994, after eighteen years of asking for it, Greg finally got a copy of the original fifteen-page police report. He found what he had suspected all along: Multiple witnesses fingered two others for the crime, explaining that it was a drug deal gone bad when Elliot Porter skipped off with $300 from two customers but failed to produce the marijuana they thought they were purchasing. Several witnesses named the buyers and insisted that the buyers sought revenge by shooting Porter. But the two people named in the police reports had apparently skipped town and headed to Thibodaux. Cops pursued this a bit and then, suddenly, when Robertson came forward out of the blue, the detectives simply dropped the investigation, arrested Greg and Earl, and closed the file—keeping it from Greg for almost two decades.