OPINION AND ORDER

            In State v. Citizen, 898 So.2d 325 (La. 2005), the Louisiana Supreme Court ruled, “a district court judge should appoint counsel to represent an indigent defendant from the time of the indigent defendant’s first appearance in court, even if the judge cannot then determine that funds sufficient to cover counsel’s anticipated expenses and overhead are likely to be available to reimburse counsel, and the appointed attorney may then file a motion to determine funding; if the judge determines that adequate funding is not available, the defendant may then file, at his option, a motion to halt the prosecution of the case until adequate funding becomes available, and the judge may thereafter prohibit the State from going forward with the prosecution until he or she determines that appropriate funding is likely to be available.”

            The court further ruled, “that unless adequate funds are identified and made available in a manner authorized by law as expressed in this opinion, upon motion of the defendants, the trial judge may halt the prosecution of these cases until adequate funds become available to provide for these indigent defendants’ constitutionally protected right to counsel or take other measures consistent with this opinion to protect the constitutional or statutory rights of the defendants.”

            The Louisiana Supreme Court in Citizen, cited the following court remedies when contemplating certain measures to protect the constitutional or statutory rights of indigent defendants:

1. ordering the dismissal of charges against certain defendants if the state cannot make available funds for their defense. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816, 848-850 (1987).
2. when counsel is unavailable to represent indigent defendant despite good faith efforts, such defendants may not be held more than 7 days and the criminal case against such defendants may not continue beyond 45 days.  Lavelle v. Justices in the Hampden Superior Court, 442 Mass. 228, 812 N.E. 2d 895 (2004).
3. holding a legislative body in contempt and/or releasing un-represented persons.  Abbe Smith for Tom Joad and Tim Robinson: The Moral Obligation to Defend the Poor, 1997 Annual Survey of American Law 869, 887.

            In State v. Wigley, 624 So.2d 425 (La. 1993), the Louisiana Supreme Court ruled,
“the appointment of private lawyers to defend indigent defendants must be reimbursed out of
pocket expenses, overhead costs and a reasonable fee.

            Pursuant to R.S. 15:145(B)(1)(a), the court began April 27, 2007 appointing private attorneys to represent indigent defendants.  The court exhausted the volunteer attorney list of 50 attorneys and is currently notifying private attorneys from the non-volunteer attorney list.  The non-volunteer list consists of bar roll attorneys submitted by the Louisiana State Bar Association.

            Questions, however, concerning the appointment of private attorneys must be answered:

1. Who will pay the appointed private attorneys?
2. When will the appointed private attorneys be paid?
3. If it is the state, what evidence is there the state will pay appointed private attorneys to represent indigent defendants, when the state has yet to adequately fund the public defender’s office?
4. How are overhead costs and a reasonable legal fee to be calculated?
5. Should appointed private attorneys be qualified to handle criminal cases?
6. If so, what criteria should be utilized to determine the qualifications of appointed private attorneys to handle a criminal case?
7. If appointed private attorneys must be qualified to handle criminal cases, what happens if there are not enough qualified appointed private attorneys to handle the caseload?
8. Should there be written standards and guidelines for appointed private attorneys regarding:
1. workload standards
2. adequate attorney training
3. conflicts of interest
4. supervision and monitoring to insure compliance with standards and guidelines

The Louisiana Supreme Court in Citizen, cited State v. Lynch, 796 P.2d 1150, (Okla. 1990)
“applauding pro bono legal representation, court nevertheless holds that “voluntary services are
insufficient to accommodate the rights of indigent citizens to the effective assistance of counsel.”

            In Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L. Ed. 377 (1940), the United States Supreme Court held the constitutional right of the assistance of counsel “cannot be satisfied by mere formal appointment.”

            Simply appointing a private attorney does not appear to be the solution, and it is clear the appointment of private attorneys will present the court with the same problem facing the public defender’s office - inadequate funding.

            The responsibility to provide the Sixth Amendment right to an attorney is the state’s responsibility, which cannot be borne entirely by the private bar.  Notwithstanding, the court will continue notifying private attorneys for appointment to represent indigent defendants and await answers to the questions presented and guidance from the appellate courts.

           
Some of you have concerns regarding measures the court must take to protect the constitutional rights of indigent defendants.  I recognize and understand your concerns.  I have a constitutional duty to protect individual rights and an ethical obligation to follow the law.  However, there are several issues you must also recognize, understand, and remember:

                        First, and it is simple enough, the legislature should live up
                        to its constitutional responsibility and adequately fund the
                        public defender’s office.

                        Second, people are presumed innocent until proven guilty in court.

                        Third, you cannot keep people waiting in jail, for who knows how long,
                        without having a lawyer.

                        Fourth, none of these people have been convicted of the charges filed
                        against them.

                        Fifth, would any of you want to be in, or have a family
                        member in the same situation.  Let me share a newspaper
                        editorial to illustrate this point:

                                    “Those who believe the need for a public defender
                                    could never penetrate their middle class household
                                    should remember that virtually every person reading
                                    this editorial would need a public defender if accused
                                    of a crime.  Exempt are those who have connections
                                    and those with tens of thousands in the bank that can
                                    be withdrawn for suitable representation.”*

                        Sixth, having constitutional rights should not depend on whether
                        you can afford an attorney.

                        Seventh, the Louisiana Supreme Court and courts around the
                        country have realized, to make the legislature do what it is
                        supposed to, which is to provide adequate funding to the public
                        defender’s office, certain action must be taken to protect the
                        constitutional rights of people, ensure trials are fair, and make
                        the criminal justice system work.  Without an effective public
                        defender’s office and the same can be said for the district
                        attorney’s office, the police department, the sheriff’s office,
                        the clerk’s office and the courts, the criminal justice system fails.

            Finally, what it comes down to is, what kind of criminal justice system do you want to live under; one based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong.
                       

*The American Press (Lake Charles, La.) October 31, 2004
What is so irritating, difficult and troubling about this entire mess is the state has a budget surplus of 3 billion dollars, 827 million left over from 2006, 1.2 billion for 2007 and another 1.2 billion expected in 2008.*

            This steadfast refusal, even though there is a substantial budget surplus, strongly indicates the legislature has no intention to adequately fund indigent defense and will continue to play “Russian roulette” with the constitutional rights of indigent defendants.

            There are 36 indigent defendants who have been waiting in jail ranging from 21 months to 9 days.

            The most important question to be answered is how long do indigent defendants have to wait in jail and/or have their cases halted before the legislature decides to adequately fund indigent defense?

            The court, as of April 30, 2007, is faced with 140 indigent defendants who do not have attorneys.

            This crisis not only violates the civil rights of indigent defendants, it has now become a violation of human rights.

            Indigent defendants do not have attorneys, unanswered questions stand out concerning the appointment of private attorneys and adequate funding for indigent defense is not available.  Therefore the court must take certain measures to protect the statutory or constitutional rights of the defendants.

ORDER

1. The Motion to Withdraw filed by the Orleans Public Defender regarding the 42 defendants placed on the list submitted by the Orleans Public Defender is Granted.
2. The court will halt the prosecutions of the 98 indigent defendants as of April 30, 2007 who do not have attorneys until further orders.
3. The court will release from custody 20 indigent defendants as of April 30, 2007 who do not have attorneys.
4. The charges against the indigent defendants will not be dismissed.

Date: 07 May 07                                                                  

    ____________________________________                                                                         
                      Judge Arthur L. Hunter, Jr.                            

*Times Picayune April 28, 2007