Chasing Gideon (24 page)

Unfortunately, it was not enough to prove the cops were on the trail of other suspects but withheld this information from the defense. Greg—functioning as his own attorney—also had to prove that this information and additional evidence gathered might have caused the jury to deliver a different verdict. But from prison, he couldn't pursue any leads, interview witnesses, access most documents, or properly investigate his case. He was growing increasingly despondent. His chances of proving his innocence were dwindling as the years passed. There was a sign over the majestic stone courthouse in New Orleans that haunted him. “This is a government of law not of men,” it said. But Greg was discovering that men—in particular, the influential white elite of New Orleans—had complicated backstories and powerful allegiances. The obstacles this created for a poor black man were nearly insurmountable.

Earl's attorney, Edward Haggerty, for example, had been an assistant DA in the city for eleven years and then a judge in Orleans Parish Criminal District Court for fourteen years.
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He was booted from the bench in 1970 for “willful and intentional” misconduct “so seriously delinquent as to bring disgrace and discredit upon the judicial office.” In fact, he had been caught in a vice raid at a local motel that year. “Haggerty has described the occasion as a before-the-wedding bachelor party,” reported the
New Orleans States-Item
in November 1970.
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“The state contends admission was charged and prostitution was to take place.” Porn is euphemistically described as “stag films” and fourteen people were arrested in the raid, including several prostitutes. Police seemed as surprised as anyone to find Judge Haggerty there; Haggerty allegedly resisted arrest, slugged one of the officers, and had to be subdued. Haggerty defended his actions at the time, insisting that such stag parties were an old New Orleans tradition, while his attorney told the
States-Item
that “if all men in the city who had attended such functions were placed on the police blotter, it would read ‘like a telephone directory.'” His attorney in the case? Robert Zibilich. The judge in the criminal case was Matthew Braniff, the same judge who would later preside over Greg and Earl's case (argued by Haggerty and Zibilich). Braniff threw out the criminal charges against then-judge Haggerty due to insufficient evidence, but the state's judiciary commission ordered Haggerty removed from the bench.

Such overlapping histories and allegiances would trip things up for Greg Bright—and ultimately for indigent defense reform in the city. Consider this: two prosecutors tried Greg's case, one of them would go on to become the judge hearing all his appeals (i.e., the judge was empowered to weigh in on accusations about his very own prosecutorial misconduct). How could this happen? In Orleans Parish, post-conviction appeals are heard by the same section of the court that heard the original trial. If the original judge left or died, whatever judge was elected to that section (courtroom) to replace him would hear the post-conviction appeals. In Greg's case, the judge who heard the original case, Judge Braniff, was no longer on the bench. His successor was a judge named Patrick Quinlan, who was also the assistant district attorney who prosecuted Earl and
Greg's case. When Greg and Earl filed their post-conviction applications themselves, they automatically went to now-judge Patrick Quinlan. He should, of course, have recused himself from their case as he prosecuted it. He did not. If there had been the right to counsel in noncapital post-conviction appeals in Louisiana, the lawyer representing them would have known Quinlan was now on that bench and have moved to have him recused. The case would have been randomly reallocated to another courtroom—and judge. But Greg and Earl, representing themselves, did not know who the new judge was in that section of the court. Finally, Greg saw Quinlan's name on some court documents and once that happened, he tried to figure out what he should do. It didn't seem fair, but what were his options?

Consulting the law books, Greg learned he could take a writ to the Louisiana Supreme Court saying that his and Earl's post-conviction appeals had been denied by a judge who had originally been a member of the team that prosecuted them. The state supreme court agreed that Judge Quinlan should have recused himself, overruled his denial of the appeal, and ordered that the cases be randomly reallocated. They were, and then strangely, ended up in different courts.

Today, Greg insists there were some shenanigans going on with the “random” reassignment of his case. His appeal was randomly reallocated to Judge Charles Elloie's section. But then he was brought into Judge Dennis Waldron's court in error. Judge Waldron, says Greg, was Quinlan's supervisor in the DA's office. “So then he's denying my appeal,” says Greg. “That went on and on till I felt like [I was] boxed in.”

Greg was deeply discouraged. For years, his mother had regularly buoyed his spirits with her visits to the prison. “It's painful to watch someone else's pain,” Greg says. “So we're both trying to cheer each other up. I tried to always have something positive to tell her when she came. I'd say, ‘Mom, I just found this out [with my case]. It's a huge discovery right here.' Or I'd say, ‘I'm going to file this or that.' She'd say, ‘I don't really know what you saying, but it sound good.'” But good news about the progress of his case had ceased. And his mother had died the year before. Greg found himself in deep despair,
ready for the first time to give up on his case, and the chance of freedom.

The right to counsel in a criminal case seems so fundamental, most Americans would be shocked to learn the extent of constitutional lapses that continue to exist. But consider how the kind of problems Greg Bright had with getting effective counsel span the decades—and spill into contemporary New Orleans.

On April 18, 2011, New Orleans police arrested Clarence Jones, a forty-one-year-old African American man. Clarence contends that he was walking with his cousin Keitha Hyde, running some errands around 11:30
A.M.
, when he ducked into an alley to relieve himself. “It was just an empty house, so I went in the backyard out of sight,” he says. When the cops turned the corner, he looked guilty. But police assert that Clarence was climbing out of a window with pliers in his left hand, apparently scrapping for metal or copper wiring in the gutted building. The cops arrested him and his cousin and took them to the Orleans Parish Prison. On May 13, nearly a month later, Clarence finally appeared before a magistrate in Orleans Parish Criminal Court, who arraigned him on the charge—simple burglary—and set his bail at $10,000 (before raising it four days later to $20,000).

More than sixteen months later, Clarence is still sitting in jail waiting for an attorney to be assigned to represent him. “It's been hell back here,” he says, explaining that he is living, along with approximately four hundred other prisoners, in one of the “temporary” tents.
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“It's like we animals,” he tells me via phone one afternoon in June 2012. “They're just packing more and more people in. They got us packed to capacity. Lots of us have no attorney,” says Clarence. “Can't do nothing but sit back here. We're just stuck.”

As an impoverished, incarcerated defendant in a criminal case, Clarence has a guaranteed right to free counsel. But in Louisiana, even today, such rights are routinely flouted. Indeed, Clarence was one of 230 defendants sitting in limbo at the Orleans Parish Prison in June 2012, as a $2 million budget shortfall forced the Orleans Parish public defender's office to lay off twenty-seven employees, twenty-one of them lawyers. Hundreds more defendants are out
on bond, trying to make sense of the court documents being sent to them and wondering whether they will ever be assigned a lawyer to help. As post-Katrina federal dollars dry up and the fiscal crisis forces drastic budget cuts at the state and local levels, one of the areas hardest hit in New Orleans—and in the nation at large—has been public defender offices. When money gets tight, the lawyers charged with protecting the rights of the poor in criminal cases are considered expendable.

Describing the situation as “dire,” Norman Lefstein, a member of the American Bar Association's Standing Committee on Legal Aid and Indigent Defendants and the author of several books on the topic, says the system was already severely overburdened prior to the current economic crisis. “Now, across the country, these strapped public defender offices are seeing freezes and outright reductions in their budgets,” says Lefstein, “resulting in even fewer lawyers available to provide services.”

The stories mount. A 2011 Justice Policy Institute report cites example after example: California cut costs by implementing low-bid contracts for public defense (the aforementioned fraught arrangement where the winning attorney has to take on hundreds of clients for a flat fee); in Kentucky, the state cut the Department of Public Advocacy budget by $500,000 and, with deeper cuts expected in 2012, anticipated a reduction in services; Minnesota lost 15 percent of its public defender staff due to layoffs.

Something very similar happened in New Orleans. Squeezed by budget shortfalls, chief public defender Derwyn Bunton announced that he was laying off nearly a third of his lawyers. Bunton cut the entire staff of his conflicts division, the department responsible for representing additional defendants in cases with more than one person charged. (An example of a conflicts division case: two people rob a liquor store and one of them shoots the cashier. Each of the men points to the other as the shooter; they'll need two separate lawyers.) As a result, a slew of people suddenly lost their lawyers.

If these conflicts division defendants aren't provided with an attorney and a “speedy trial” can't proceed, by law they ought to be released from prison. But most of them aren't released, despite this
clear violation of their constitutional rights. Why? For several reasons. First, it's a catch-22 for the jailed defendants: most of them need a lawyer to fully grasp how their rights are being violated and help them make that argument in court. Second, there is some linguistic fudging going on: it's not that they're being
denied
representation; these defendants are simply “on a wait list” for private, pro bono representation. (Since February 2012, the number of defendants on the pro bono wait list has shot as high as 543.) Third, due to quirks in Louisiana law, folks can be held up to four months (depending on the alleged crime) before the district attorney decides whether or not to pursue the case. It's possible that some particularly proactive judge could step in and start setting these jailed defendants free—but it had better be someone who doesn't mind losing the next election for being “soft” on crime.

Meanwhile, the poor languish in jails. For example, on June 11, 2012, I spoke by phone to Willie Cheneau Jr., a thirty-two-year-old unemployed handyman who'd been sitting in Orleans Parish Prison for nearly two months, ever since his arrest for possession of a nickel bag of marijuana on April 24. The fact that this was his second arrest for possession bumped the charge up from a misdemeanor to a felony. Although he is very poor and qualifies for a public defender, Willie had no attorney assigned to represent him. His friend had been picked up in the same bust and merited a public defender, so Willie's case was relegated to the now-defunct conflicts division. The judge set Willie's bond at $1,000; to bail him out, someone would have to pay 13 percent plus fees, or $180.

Willie is single and had been living with his mother. When she was contacted by a bail bondsman to show up in court with the $180, his mom refused, according to Willie. She figured he needed to get his life together. “She tired,” Willie explains. “She tired of me. She's turning fifty, all her children are grown. She's been raising kids since she was sixteen, and she says, ‘Y'all grown—now I'm going to live my life.'” He isn't angry with her for not coming up with the $180 bail, but he desperately wants out of the Orleans Parish Prison, where he's housed in a tent with eighty-eight other inmates. “It ain't no place to be,” he says. “There's a guy in here trying to see the nurse. He hasn't eaten in eight days, coming down off
heroin. They won't medicate him. Just stick him in here and make him go cold turkey.”

Willie doesn't deny that he had the weed or pretend that he hasn't been in trouble before. (As a teen, he was convicted of stealing a car and then, a few years later, on a burglary charge.) But he doesn't understand why he should sit in jail for two months without being able to talk to a lawyer. He'd like to plead guilty to the marijuana charge—but he can't even do that without a lawyer to represent him and get him into court.

Willie's pretty typical of the people who flood the public defender's office, and the folks waiting for attorneys to represent them. But his plight doesn't generate a lot of sympathy.

Chief public defender Bunton has tried, but it's hard to rally support for the program. The state is funding 53 percent of New Orleans's budget for public defense, while the city pays 1 percent. “And the remainder we pray for,” Bunton says, explaining that the rest of the budget for the forty-seven-person office depends on traffic tickets and court fees or fines from the mostly poor folks processed by the courts here—a practice not unique to New Orleans, but one that makes the funding variable and unreliable.

Today, public defenders in the city represent more than 28,990 criminal defendants each year. But even as the 2012 Orleans Parish public defender's budget shrank from $9.5 million to $7 million, there was an uptick in the number of cases prosecuted by the local district attorney: 30 percent more felonies alone than the preceding year (arrests during the same period held steady).
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The district attorney's budget—$14 million—is far larger than the public defender's $7 million, giving prosecutors a serious manpower advantage. Add to the mix the national economic crisis, the local public defender budget cuts, and new super-aggressive Orleans Parish district attorney Leon Cannizzaro, who has been criticized by public defenders for accepting more cases, overcharging for crimes, and bringing more defendants to trial—and the confluence of events produces a disaster.