A Cry for Relief
In 2013, Chief of the Louisville Public Defender’s Office, Dan Goyette, and I conducted an assessment of the Orleans Public Defender’s Office. When we did so, we worked in the backdrop of several post-Katrina assessments, including the 2006 BJA Assessment. In the earlier report, the authors had found an indigent defense in shambles with inadequate funding, no caseload numbers, and attorneys who rarely met with their incarcerated clients. The immediate hiring of 70 attorneys was recommended. An NLADA Report and a subsequent BJA Report followed. By 2013, we found an office that had been reborn.
One of the issues we looked at was excessive caseloads. We found that felony caseloads were under control. The most problematic area was in municipal court, where 8 lawyers were trying to handle over 2800 misdemeanors each. Overall, however, in the context of the situation both pre and post-Katrina, OPD had made much progress.
So it was that on September 3 I read an op-ed penned by OPD lawyer Tina Peng in the Washington Post. It is one of the most significant articles that I have read, not only on the situation in New Orleans, but on indigent defense in general.
Its title is heart breaking: “I’m a public defender. It’s impossible for me to do a good job representing my clients.” The details are worse. She reports that in 2014, she handled double the level of 150 felonies recommended by the NAC Standards. When she passed the bar in 2013, she immediately began to defend persons charged with a crime carrying an LWOP sentence. She states that she is often able to see her clients only once every two months. Support services like investigation and social work is being rationed. The effect is dramatic: “…I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.”
OPD is adapting. Lawyers are taking the equivalent of four unpaid weeks per year in furloughs, increased caseloads, and hiring freezes. Just work harder. Do more. Bend your back and handle whatever the state dishes out. The public defender as pack mule.
The judiciary is also responding. As of this writing, Judge Hunter had set a hearing directly in response to Ms. Peng’s op-ed. He then rescheduled the hearing for November, at Chief District Public Defender Derwyn Bunton’s request. You can see that here
Ms. Peng knows better. She knows that her clients and the clients of OPD are suffering. She knows their constitutional rights are being violated. And she doesn’t see a light at the end of the tunnel. Instead, she sees what is going on in New Orleans as occurring as well throughout Louisiana, Knoxville, Missouri, Idaho, and nationwide.
This is one of the most significant articles about indigent defense in recent times. Why? How about all those other reports like those written by the ABA and the Constitution Project? Of course those reports have been important and influential. What’s important about Tina Peng’s article is that it is honest, raw, and comes from the heart of a defender in the trenches. It speaks the truth. She is saying to Louisiana and to America—my 300 felony clients are not being represented as provided by the Constitution. She is saying that this is not only occurring with me but also with public defenders all over America. She is crying for relief, asking, when, America are you going to do something about this?
America has also been informed that controlling caseloads works. Only recently, in a study found here, the authors found by limiting caseloads, “these investments led to critical enhancements in indigent defense representation. Moreover, this study identified numerous areas in which the implementation of case caps and related state funding spawned tangible improvements in the quality of indigent defense representation.”
But here’s the thing: after all this time, following all of these reports, Tina Peng, a New Orleans public defender, admits what we all need to admit. It is impossible to handle all the cases being assigned to us, and our clients are suffering as a result. Will her cry for relief be heard this time?