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Case files stacked atop file cabinets at the Orleans Public Defenders office in New Orleans, La.

Why Getting Sued Could Be the Best Thing to Happen to New Orleans’ Public Defenders

The ACLU takes the cash-poor agency to court to force the cash-poor legislature to pay.

The public defender’s office in New Orleans says it is so understaffed and overwhelmed that it can no longer fulfill its Constitutional mission: to provide legal representation to the city’s poor. So it has refused to take most new felony cases.

Since 2012, the office’s budget has been slashed from $9.5 million to $6 million, including $700,000 in new cuts this year. With no money to pay additional staff, caseloads have become so onerous that the lawyers can spend only seven minutes preparing for each of their cases.

Fed up, the office announced its plan to decline more work on Jan. 11. Within a week, the American Civil Liberties Union — a customary ally — sued them for doing so. But though the two organizations will now be adversaries in federal court, their goals and their strategy are complementary: to compel the state legislature to come up with enough money to guarantee the Constitutional right that the public defenders say they can no longer protect.

It is an unusual strategy, but a closer look at similar efforts in other states shows it has proved successful in the past.

In 2003, state-appointed pro bono lawyers for the indigent in Massachusetts initiated a “caseload stoppage,” complaining that they were underpaid. It caused so much gridlock in the courts there that the state legislature had to increase their funding, even over the protestations of the governor, Mitt Romney.

In 2008, Miami-Dade County’s public defender’s office also began turning down new cases. Five years later, the Florida Supreme Court ruled that such a refusal was justified, in a decision that was cited by some as the most significant re-affirmation of the Sixth Amendment right to counsel since the 1963 Supreme Court case Gideon v. Wainwright.

Miami’s chief public defender, Carlos Martinez, says that his office has gotten more money from the Florida legislature ever since. “Refusing cases was absolutely what stopped the budget-bleeding,” he says.

In 2011, after Missouri public defenders stopped taking cases, they too were vindicated by their state’s high court, though the lack of funding for indigent defense there is ongoing. And in 2013, the Montana public defender filed a motion seeking to decline new cases, and the governor stepped in to fund them, hoping to avoid the cost of further litigation.

In New Orleans, the ACLU’s lawsuit is just one more part of the same attempt to force the legislature’s hand. To do that, they must first get a court to acknowledge the Constitutional violation.

But they can't sue the legislature directly, in part because the state would cite the separation-of-powers doctrine: that courts cannot tell the legislative branch to spend more money. “It's unusual we’re suing somebody we agree with,” said Brandon Buskey, the ACLU lawyer who is spearheading the lawsuit. “But it’s a different tactic in service of the same goal — more funding. If we can establish that [what the public defenders are doing] is unconstitutional, then the legislature would” be in contempt for not providing the funds. The public defender’s office, which now has a few months to get its own lawyer and respond to the lawsuit, may even agree with the ACLU’s claims — and if both sides agree, the courts would likely have to agree, too.

That’s also part of the strategy.

“We don’t necessarily welcome being sued,” says Derwyn Bunton, New Orleans’ chief public defender, “and I can’t pretend to know the ACLU’s strategy. But we’re approaching this lawsuit as an opportunity.”

How that plays out in the legislature is unclear.

Eric LaFleur, the chairman of the Louisiana Senate’s finance committee, is in charge of vetting next year’s budget. He says that the public defenders “have certainly got our attention,” because some “bad guys will go unprosecuted if they don’t have a lawyer.” But the likelihood of more funding for indigent defense, he says, remains slim. “They can draw attention to their plight, but the basic fiscal situation remains the same: With the budget deficit we have, people who commit crimes are still a low priority.”

Most of the defenders’ funding now comes from a fee attached to traffic tickets, and when people are driving safely, less money comes in.

“We can’t fund the Sixth Amendment on traffic violations,” says Bunton.

Facing lower pay (staff attorneys make between $45,000 and $77,000 a year) and fewer resources for winning cases, the most experienced staff members are quitting in droves. In three years, the office has gone from 70 lawyers to 47. And those who remain are handling a combined 20,000 cases a year, and have no time to file motions, do legal research, find and interview witnesses while memories are fresh, or secure video footage before it is overwritten.

As a result, the “waiting list” for defendants who need counsel has grown, and many are languishing in jail for weeks, even months, without a lawyer to challenge the amount of their bail, give them advice during interrogations, or negotiate with prosecutors.

On Nov. 20, a lawyer for the public defenders asked a judge to stop assigning them any more cases, because they were too overloaded to perform up to the standards of the Constitution, the Louisiana bar’s Rules of Professional Conduct, and their own code of ethics. The judge ruled that they had a “compelling” case, but that he was “unable to offer remedy at this time.”

By January, Bunton had decided to simply refuse the cases.

The cost for the individual defendants who will now go unrepresented could be devastating. On the one hand, judges could conceivably dismiss these cases or appoint pro bono attorneys to fill in. But the more likely scenario, says Katie Schwartzmann, co-director of the MacArthur Justice Center in New Orleans and an expert on the city’s justice system, is that everyone whom OPD refuses to help will end up stuck in jail. Without public defenders, she says, “We can expect that innocent people will be convicted… If cases cannot move forward, our jail population is going to balloon and all of the recent progress [in reducing incarceration levels] will be undone.”

But as a matter of strategy, the public defenders’ plan looks more promising. If their work slowdown garners enough national media coverage, or if the New Orleans justice system grinds to a halt as judges scramble to find replacement lawyers, the legislature may have to offer more funding when it convenes in March.

Colette Tvedt, the director of public defense issues for the National Association of Criminal Defense Lawyers, hopes that this may even be a “tipping point” in the fight for adequate funding for indigent defense. “Other public defender’s offices are really taking note,” she says. “Across the country, they’re doing ‘workload studies’: Hiring accounting firms so they can actually document the number of cases they’re handling, so that if they try something like what New Orleans is doing, legislatures will have to understand what ‘overworked’ really means.”

As for Bunton, he is struggling with his decision not to represent some of New Orleans’ poorest defendants — but insists that he “completely rejects the notion that the poor only deserve what we can give them.”

“What I don't understand,” he adds, “is why we have to be so creative to compel the government to protect a Constitutional right.”