The Orleans Public Defenders office announced Monday (Jan. 11) that it will begin refusing certain felony cases in which defendants face lengthy or life sentences. In addition to murder cases, these can include attempted murder, forcible rape and armed robbery, said Colin Reingold, the office's litigation director.
The action, which Chief Defender Derwyn Bunton first threatened nearly two months ago, presents uncertain options for indigent defendants charged with serious violent crimes. The office either needs more funding or reduced caseloads, Reingold said.
"Either those defendants will have to hire a lawyer, or the court will find them a lawyer, or they will wait for a lawyer until one of those things happen," Reingold said. "On a purely practical level, each judge could make their own call."
Mayor Mitch Landrieu's administration has increased direct appropriations to the office from $831,000 in 2014 to more than $1.5 million this year, the administration said in a statement. But these increases have barely kept pace with state funding cuts, the administration said, adding that the state "has primary responsibility in this area."
The additional local funding is enough to stave off mandatory furloughs, but not enough to provide representation in serious felony cases that is constitutional or ethical, Reingold said. Reingold acknowledged the possibility a judge could order the Public Defenders office to proceed with representation, adding this could ultimately harm prosecutions.
"We would continue to do the best we can with the understanding that we are warning them it is our opinion that the representation we are providing is deficient, and the case will be vulnerable to an appeal," Reingold said, adding that the Public Defenders office would likely seek appellate relief if forced to provide deficient representation.
Orleans Parish District Attorney Leon Cannizzaro's office did not respond to a query on Monday evening.
Reingold said the public defenders are currently juggling about 350 cases of the type they will begin refusing, and they are spread among only eight full-time staff attorneys qualified to handle them. These cases include 85 cases in which defendants face mandatory life sentences.
The office's caseload is two to three times greater than recognized national standards stipulate, Cardozo School of Law legal ethics expert Ellen Yaroshefskytestified in November before Criminal District Court Judge Arthur Hunter. Yaroshefsky said this forces the Public Defenders office to triage cases, which constitutes a conflict of interest.
"I believe this entire office is operating as a conflict of interest. The lawyers here are compromising some clients in other to represent others," Yaroshefsky said.
Reingold said the overburdened office is unable to comply with the Louisiana Rules of Professional Conduct, American Bar Association guidelines and the 6thAmendment of the U.S. Constitution.
"Those things require that we have capacity on a day-to-day basis to do the investigation into our clients cases, to visit our clients, to take their phone calls and be able to advise them," Reingold said.
The action aligns with a growing movement among public defenders offices across the country. The Florida Supreme Court ruled in 2013 that the Miami-Dade County Public Defender office could refuse cases when it couldn't provide proper representation, and similarly situated offices have followed suit. Public defenders offices in several Louisiana parishes, meanwhile, have imposed waiting lists or threatened to do so.
While higher courts are sympathizing with public defenders officers, they haven't provided much direction for what to do with defendants while officials work out permanent remedies, Reingold said.
"They leave it up to a particular judge to say 'am I willing to wait and risk this defendant's liberty while they are in jail without a lawyer, or do I find them a lawyer to work for free?'" Reingold said. "There's not a lot of good choices here."One more time: America is irredeemable.