Chasing Gideon (27 page)

Not that Clarence Jones has spent his life treading the straight and narrow. Indeed, he's been arrested five times in his life and convicted twice: once in March 2004 for a misdemeanor (possession of marijuana) and a second time in May 2004 for a felony (distribution
of marijuana). It's not inconceivable that he did attempt a burglary and is lying about what he was doing in that alley. The point is, who knows? Without a trial, and without an attorney to help him navigate our complicated legal labyrinth, he is languishing in jail, his constitutional rights clearly violated. (Case in point: I personally had to consult three local attorneys to “translate” the docket master and comprehend the loopy history of his case.)

Almost fifty years ago, an indigent man who shared the same first name—Clarence—and the same charge (he was accused of burglarizing a pool hall in Panama City, Florida) helped establish the right to counsel in
Gideon v. Wainwright
. Like Clarence Jones, Clarence Gideon did not have a lawyer and wrote to the court himself. “Petitioner cannot make any pretense of being able to answer the learned attorney General of the State of Florida because the petitioner is not a attorney or versed in law nor does not have the law books to copy down the decisions of this Court. But the petitioner knows there is many of them,” Gideon wrote to the U.S. Supreme Court in April 1962 from his jail cell. “All countrys try to give there citizens a fair trial and see to it they have counsel.”

In March 1963, the U.S. Supreme Court agreed. Writing for the majority, Justice Hugo Black stated the obvious: “[R]eason and reflection require us to recognize that in our adversarial system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Echoing Clarence Earl Gideon—in corrected syntax and spelling—Black further insisted, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

Is it? When I speak to retired Judge Calvin Johnson in April 2012 at his Common Street office in New Orleans, it is clear that he has a profound understanding of how the legal system fails poor people in Louisiana. He is the judge who decided, in
State v. Peart
, that the state legislature must properly fund indigent defense, and the one who, as chief judge, spearheaded public defender reform in the aftermath of Hurricane Katrina. He sees the interconnectedness of the personal, political, and legal—and the value of working all
three angles at once. At sixty-five, with cropped gray hair, a mustache, and a colorful pink-and-white striped shirt, he has left the law for a new job heading up New Orleans's Metropolitan Human Services department. But his heart—and hand—are still in the criminal justice arena.

Over the years, he has been a public defender in the city. (“Those who know me well say I left because I wasn't very good at it,” he says. “I say I left because I was overwhelmed by it.”) Then he ran the criminal law clinic at Loyola University Law School for a decade. In the '90s, he became a judge. “Full disclosure,” he says. “It was apparent to me in 1979 that the way the system operated here was not in the best interest of those who needed representation. That's what generated
Peart
.” Johnson thinks back to the 1993 case
State v. Peart
and says he'd like to correct the record on that. “One of the misnomers about
Peart
is that it is always associated with capital cases or serious matters,” he says, explaining that the defendant, Peart, was charged with rape and murder and, due to the seriousness of these charges, was actually quite likely to get some attention as the public defender involved triaged cases and the most serious rose to the top of his to-do list. “But what about all the other people Rick [Teissier] could not represent properly because he had to focus all or most of his attention on cases like Peart?” Those charged with low-end, petty crimes, “these are the guys getting screwed,” he says. “Getting convicted of a misdemeanor or low-level felony could be a life sentence in Louisiana. Here, it's a life sentence [to have that conviction on your record] because you are banned from some schools, some houses, some jobs. You can't, can't, can't.” The conviction can be for a minor case. Maybe a person was convicted and got probation, but it still stays on his or her record. “The conviction is a life sentence. That conviction will go with you till the day you die.”

What he hoped would happen with
Peart
was that the legislature would take decisive steps to fund public defense adequately. In fact, they made some funding increases but remained troubled by lack of sufficient resources. In 2007, legislators passed the Louisiana Public Defender Act, which created a statewide board to oversee public defender services in the state, and gave them a budget to disperse. But
it remains terribly difficult to persuade the general public that this is a budget item worth funding. Politicians, then and now, recognize this is not a popular cause. “It's difficult in America to talk about this, to really engage people in a conversation about public defense,” Judge Johnson says, explaining that even his own mother used to say back when he was lawyering, if they're not guilty, how come they got themselves arrested? “That notion still prevails. People believe that individuals who go to jail ought to be there. You have that kind of stigma attached to those folks, but also those folks who are defending them.” That makes it hard to muster up the political will for reforms, especially when budgets are tight. “We have a state like so many in America that is having revenue shortfalls,” Johnson says. “So how do you make determinations? You look at all of the needs around the state, again triaging, to decide, whom do you fund first and foremost? Public defense is obviously not going to be that high up on the totem pole. That's just the reality of that.”

How do you make the general public understand the value of the right to counsel for the poor? Johnson says you have to make it personal for people, to say, “let's talk about your own life and your family and community and those you know and love—and invariably you find, regardless of their station in life, that they have friends or family who have gone through the justice system.” He says he asks these questions: “Should they be represented by someone who can't even go and speak to them in jail, interview them, think about them?”

Pair that educating with the force of the law, he says, which is what he tried to do with
State v. Peart
. The way he sees it, “changes in the law don't happen because a case is filed, but because there is a bubbling up of things.” Around the country now, that bubbling is beginning to happen. “It takes one case and then another case and another [challenging the system]. That's how we finally get to
Gideon
because of lawyers constantly pushing the envelope and making judges deal with these issues, until finally there are the right facts and circumstances and you get that landmark decision.”

 Seen that way,
Peart
is one tiny bubble that rose to the surface and everyone in state and local politics could see it. And the decision, demanding that the legislature do its job and fund what
is constitutionally required, flowed seamlessly out of Johnson's life history. Johnson, growing up as a black man in the South in the fifties and sixties, was intimately acquainted with the way the law was used to force change. His father was a plaintiff in a lawsuit filed by Thurgood Marshall in 1949 to equalize teachers' pay in Louisiana and a plaintiff in lawsuits to integrate schools. Johnson himself met Thurgood Marshall when he was eight years old and figures he met “damn near every black lawyer in Louisiana in my living room” during those years. He laughs, “not that there were that many.” His dad was the third black man to register to vote in Plaquemines Parish, Louisiana, a feat he accomplished by having the woman with the finest minute handwriting in the community transcribe the Bill of Rights up his hand; he could recite it, even if his memory failed during the voter test requiring it. Judge Johnson himself was arrested and convicted of inciting a riot in 1964 when he was seventeen, after a civil rights protest—inadvertently proving his point that one doesn't have to look too far to find someone who has been jailed, hauled into court, and desperately relied on the skills and attention of a lawyer.

Greg Bright was finally released from prison on June 23, 2003, thanks to the herculean efforts of a team of lawyers who, working for a tiny nonprofit, randomly stumbled on his case and agreed to work his appeal. According to the parameters established by
Gideon
, he had been given a lawyer for his initial trial. But regardless of how ineffective his counsel was, he had no right to an attorney to represent him in most of the complicated legal processes that followed. The fact that there was no possible way for him to do the legwork necessary to investigate the case—visit the crime scene, interview witnesses, secure documents, obtain witness rap sheets, consult psychiatric experts—is considered inconsequential by the government. Making matters worse, Louisiana joins Michigan, Arkansas, and Washington in limiting felons' access to public records, including police reports and DA files. While the federal government recognizes the absolute necessity of a lawyer for appeals in the federal courts, at the state level, where most cases are tried, there is no such right. In Louisiana, prisoners have this right if they get a hearing—
which usually means the judge assigns the court public defender to do it on the fly, or a private lawyer unfortunate enough to be in the room at the time. But in federal court, an inmate will get dedicated counsel for a hearing that will do more than this, thanks to a much better funded federal public defender system.

What this means is that we as a public assume our justice system is foolproof and never errs. Or if it does, the indigent client who is convicted ought to be able to navigate the appeals process on his or her own.

If Emily Bolton and Innocence Project New Orleans hadn't taken on Greg Bright's appeal, he likely would now be looking at his thirty-seventh year in jail for a crime he didn't commit. Bolton wonders how many more like Greg are out there. Within a year of opening their doors in Louisiana, Innocence Project New Orleans had received more than two thousand requests for help with appeals from the guilty, the innocent, and the vast swath in between. The organization exonerated twenty-one clients. It has taken a decade, Bolton says, for legal representation for post-conviction appeals to evolve from “just a fuss to a credible fuss to a fuss which we must do something about.”

Meanwhile, New Orleans is backsliding on providing the most basic right to free counsel for the poor in the original criminal case as well. As the summer of 2012 drew to a close, Willie Cheneau Jr., the man arrested and jailed for marijuana possession, was finally appointed a lawyer, who promptly got his charge reduced from a felony to a misdemeanor. Willie pleaded guilty to possession of marijuana and was released within two days—after two months in jail. Clarence Jones finally got a pro bono attorney who specializes in tort, product liability, construction, and insurance law. The attorney, Kirk Gasperecz, said that he was already “up to his armpits in alligators” at work, but nonetheless agreed to take Clarence's case when a local judge told him Clarence had been sitting in jail for more than a year. Gasperecz says he will work closely with colleagues who have criminal experience to get Clarence out of prison. Also, the Orleans Parish public defender's conflicts division was finally revived in August, but is struggling along with only three attorneys.

A weak public defender system has societal impact above and beyond the personal impact on folks who are wrongly convicted and spend years of their life behind bars. Katherine Mattes, of Tulane's law clinic, calls it the “trickle-down theory of community safety.” “The public defender system is one of the most important public safety systems we have—a strong public defender who challenges the prosecutor ensuring that the prosecutor can make his case, forces the prosecutor to make sure that the police are investigating and making solid arrests based on evidence, not bias, attitude, or laziness; this in turn leads to a safer community,” she says. “In a community without an effective public defense system, as has been the case for decades here in New Orleans prior to Katrina, the prosecutor doesn't need to worry about whether his cops are bringing him well-investigated, solid cases, and if the prosecutor isn't worried, then the police have no systemic incentive to investigate thoroughly and confirm that their arrest is solid. I think it's essential for the public to understand this relationship between effective, well-funded public defense systems and their own safety.”

Case in point? Whoever killed fifteen-year-old Elliot Porter remains on the loose.

Today, Greg Bright, fifty-six, sits on the cement porch of his yellow clapboard house in New Orleans's 7th Ward and rests his hand on the head of his yellow dog, Q. It is 2012, and he often finds himself musing over the notion of time—time past, time lost, time wasted. “It feels like a minute since I been out here,” he says. It took some time to adjust to life on the outside, he admits, and once, on a dark, rainy morning as he found himself biking seven miles in the rain to his miserable job working the line in a chicken plant in Mississippi, he felt real despair—just recognizing that he was forty-seven years old and had never owned a car. He tried hard to dismiss the sobering thought that, arrested at age twenty and doing twenty-seven years of time, he'd been “seven more years in prison than I was on the streets.” Sometimes, he says, “it's little things like that” that really threaten to drag him down into sorrow.

So he chose to do something that both keeps those wasted years fresh in his memory yet also mitigates the sense of powerlessness
he sometimes feels. He helps to educate others in the hopes that his story will spur reforms. He is not an educated man—his formal schooling stopped in sixth grade—but he is one of dozens and dozens of ex-cons who form a vital link in the post-Katrina criminal justice reform efforts through various organizations such as Resurrection After Exoneration, the aforementioned holistic reentry program for ex-offenders, and Innocence Project New Orleans. Greg tells his story to students, activists, politicians, church groups, friends, strangers—anybody with time to spare and an inclination to listen—doggedly putting a face on an abstract idea, injustice.