New Orleans justice system besieged

NEW ORLEANS -- Every week or so here, the chief criminal court judge and his staff discover someone in jail who shouldn't be.

For the most part, Chief District Judge Calvin Johnson said, they are indigent defendants who were arrested on misdemeanor charges just before or after Hurricane Katrina hit Aug. 29. They often lack attorneys and their cases get ''lost" in the system, he said, leaving the accused to serve weeks or months of extra incarceration.

Around the courthouse, it's known as ''doing Katrina time."

''We're still finding people -- they bubble up weekly," Johnson said, noting that he releases them. ''We can't have people in jail indeterminately."

The flooding after Katrina robbed thousands of people of their homes, drinking water, and other essentials. But it has also deprived many others of another fundamental: the right to legal representation.

The criminal justice system here is besieged on all sides. The evidence room was flooded with several feet of water. Witnesses, like half the population, are scattered all over the country. The district court's 13 judges are restricted to holding court in two federal courtrooms available only four days a week. No criminal jury trials have been held since the storm.

But what may be raising the most troubling constitutional issues, according to judges, prosecutors, and defense lawyers, is the underfunded public defender system, which is required by law to provide indigent defendants with legal representation.

It is at the center of a high-stakes constitutional standoff.

District Judge Arthur Hunter, a former street police officer, has announced that he is suspending the prosecution of cases in which the defendants are represented by the public defender's office -- that is, he says, until Louisiana appropriates enough money to allow public defenders to put on a competent defense. Without action from the Legislature, he indicated, he may soon have to consider releasing those defendants. This month, lawyers began seeking the release of more than 15 of them.

''It's beyond the question of whether these defendants have effective counsel -- it's a question of whether they have attorneys at all," Hunter said.

Even before the hurricane, Louisiana's system for indigent defendants had been considered woefully inadequate, according to a report from the National Legal Aid & Defender Association and the National Association of Criminal Defense Lawyers.

There isn't enough money for the program, according to the report, leaving public defenders in one parish to handle six times the normal full-time caseload -- while working part time.

About 80 percent of defendants in New Orleans are supposed to be represented by the public defender's office. Supported largely by traffic court fines and fees, which evaporated after Katrina, the office shrank from 42 lawyers to 10.

According to Johnson, as well as defense lawyers and law students who have volunteered to represent the indigent, some defendants have been kept in jail after charges were dropped. Others have been kept in jail awaiting trial longer than the maximum possible sentence, and still others were being held in jail after being sentenced to a boot camp that is no longer in operation.

Last month, Johnson's assistant, Shannon Sims, discovered that a woman charged on Aug. 25 with prostitution was still in jail -- having served seven months awaiting trial on a charge for which the maximum sentence is six months. She was released.

''That case certainly was unfortunate," said Donna Andrieu, chief of appeals for the district attorney's office. She noted that ''we have been actively reviewing our files so that we can avoid having anyone's constitutional rights violated."