Last fall, insurance attorney Ryan Goodwin found himself in a visiting area of the Caddo Correctional Center in Shreveport, La., bracing for an awkward conversation. He had to make an admission to his new client — a 16-year-old who was facing life in prison for stealing someone’s wallet and cellphone at gunpoint.
“I don’t do criminal defense,” he told the teenager, Norman Williams Jr. “But I promise you, I’ll definitely try my best.”
Goodwin typically represents insurance companies in litigation following car accidents. His job involves finding out what injuries the victim claims to have and whether they were caused by the crash. He has no criminal law experience.
But because the Caddo Parish public defender’s office was suffering from a historic, statewide lack of funding, it could no longer provide counsel to hundreds of its poor clients. To fill the void, judges were randomly assigning the neglected cases to all the lawyers in Shreveport, including those specializing in real estate, personal injury, taxes, and adoption. Anyone with a law license, a professional address in the parish, and a pulse was placed alphabetically on a list. They could be called on at any moment to take a criminal case, unpaid.
For Goodwin, this presented a moral dilemma. He knew he wasn’t fit to represent Williams, but a court of law was telling him that he was. “I took generic criminal law and criminal procedure in law school, but that’s just two classes separating me from any person,” he says. “I wouldn’t want me representing me.”
Goodwin decided to write a letter to the judge, John Mosely Jr., who had assigned him the case. “I understand the current status of the indigent defense office as well as my civic duty,” he wrote. “But the possibility that a young man could spend a significant amount of time in prison poses a difficult burden on me considering my rudimentary knowledge of criminal procedure.”
The judge kept him on the case.
So Goodwin wound up at the Caddo Correctional Center, attempting to explain the situation to his young client. “I tried to tell him about the Constitution: that you have rights, that you have the right to a qualified attorney,” Goodwin says.
“But the way things are, I think he was happy just to have any lawyer, period.”
As Louisiana continues to provide insufficient, unreliable funding for the legal representation of the poor — “on a scale unprecedented in the history of American public defense,” warned an open letter by the president of the American Bar Association — public defenders across the state have barely scraped by, foregoing office necessities and laying off attorneys and staff.
Earlier this year, many of these offices had so few staff that they resorted to placing hundreds of their clients — even those sitting in jail, awaiting trial — on “wait lists” to receive a lawyer. “Conflict cases,” with multiple co-defendants requiring multiple lawyers, had become especially overwhelming for the defenders to handle.
Caddo Parish
New Orleans
Public defender office
$3.1m in public defender expenses (2015)
$1.5m in state funding (2015)
Staff 15 attorneys, 19 part-time contract attorneys, 4 investigators, 13 support staff (July 2016)
Underfunded
State funding covers a percentage of the Caddo Parish public defender office's expenses.
49.1%
Overworked
In 2015, the office had 18,761 cases.
Per-attorney caseload
State limit
Note: State limit is the maximum number of cases that an attorney should handle a year. It can be a combination of felony, misdemeanor, juvenile, mental health, traffic, capital, and appellate cases.
State funding does not include local revenue, which fluctuates significantly every month.
Source: Louisiana Public Defender Board
In Caddo Parish, where Ryan Goodwin was asked to help, budget shortfalls forced the public defender to cut 12 attorney positions, leaving only 22 lawyers to handle more than 18,000 cases. In Lafayette, another populous parish 215 miles southeast of Caddo, the defender had to cut 47 of 65 attorneys. The wait list there has more than 4,500 defendants, many facing life in prison.
The issue now facing judges and courts across the state is how to ensure a functional — and constitutional — justice system in the wake of these shortages.
In New Orleans, for example, Judge Arthur Hunter ruled on April 8 that poor defendants sitting on a wait list must be released from jail until the public defender can represent them. Prosecutors are appealing several of those defendants’ cases.
Everywhere else in the state, however, judges have taken more conservative approaches.
“I’m not going to be the one that lets one of them out, unless a higher court tells me I must,” says Jacque Derr, the district judge of Winn Parish, a rural area in central Louisiana. “What I’m scared of is some serious offender who is guilty ending up walking down our streets because of this…. All I can do is find a lawyer to agree to do it, or else these suckers are fixing to be home free.”
This summer, that is exactly what many of Louisiana’s judges have done. Judge Derr has conscripted his city prosecutor to also help out as a public defender. And instead of releasing inmates, the judges in Caddo Parish and elsewhere have appointed non-criminal attorneys like Ryan Goodwin to take criminal cases they may not be equipped for.
“It’s a way of trying to paper over a funding problem without funding — to make sure that no matter what, they can keep their prosecutions going,” says Stephen Singer, a law professor at Loyola University New Orleans and formerly the chief of trials and general counsel of the New Orleans public defender’s office. “Their ‘solution’ is to put up cardboard cut-outs of defense lawyers in place of actually spending the money on real public defenders.”
Shreveport, the seat of Caddo Parish, was the last capital of the Confederacy. Directly in front of its courthouse, a monument to the cause reads, “Lest We Forget.”
The city was also home to a branch of the Standard Oil company, but Louisiana’s oil and gas industry has struggled in recent years, leading to an economic downturn that affected funding for public services like indigent defense. Today, casinos and strip clubs light up its mid-rise skyline, and billboards for lawyers (“One Call, Y’all!”) line the highways.
On a humid day in June, many of those lawyers are gathered for a luncheon thrown by the Shreveport Bar Association. Dressed in seersucker suits and bow ties, they are crowded around the buffet, spooning fried catfish and black-eyed peas onto their plates. Between bites, everyone is commiserating about the public defender’s funding crisis and how ill-equipped they are to fill in. “I just got another one this week!” says Richard Lamb, a tax attorney who admits he has never argued a case in court.
The analogies seem to come easy: “It’s like asking a dentist to do heart surgery,” Lamb says.
“It’s like if we told a prosecutor to do a medical malpractice suit,” says Goodwin, the insurance attorney.
“What if private lawyers were appointed to be DAs?” says Steve Baker, an adoption attorney, later in the day. “We’d probably just dismiss a lot of the cases, and they don’t want that.”
Another civil attorney, Jim McMichael, chimes in with a funny story about how a defendant put an arm around his appointed lawyer’s shoulder and said, “Would it help if I told the judge that I also thought you were incompetent?”
Goodwin — whose former client, Norman Williams Jr., made a deal with the district attorney to testify against another defendant and is now doing five years in prison — says he cannot tell if this is all a comedy or a tragedy. “We’re sharing laughs over beers about how my friend was assigned to represent a pimp,” he says. “But then again, someone’s liberty is at stake here.”
On at least three occasions in the past, Caddo Parish has taken the same draft-a-lawyer route out of a public defender crisis — and criminal defendants have fared much worse than Williams. In 1984, the local bar had divided all of Shreveport’s lawyers alphabetically, just as judges did again this year, to represent the indigent. In one murder case, a man named Glenn Ford was randomly assigned to be defended by an oil-and-gas attorney and a slip-and-fall insurance lawyer. They failed to challenge prosecutors’ selection of an all-white jury, which then found Ford guilty after deliberating for only three hours. He spent the last three decades of his life on death row before famously being exonerated in March 2014.
Ford, one of the longest-serving death row inmates to be exonerated in the U.S., died a year after he was released from prison. The state of Louisiana never provided compensation to him or his family.
This time around, to better prepare their lawyers for these assigned cases, the local bar association planned a seminar on criminal law for non-criminal attorneys. (One flier read: “This Will Sell Out, So Make Your Reservation Now!”)
On a Friday in May, more than 20 private attorneys filed into the basement of the Caddo Parish courthouse, where they learned the “Do’s and Don’t’s of Providing Effective Assistance” in criminal cases. Over a three-hour period, a judge, a representative from the DA’s office, a former DA, and a former public defender showed them PowerPoint presentations on how to interview a client (compare what the client is saying with what you know from the police report); how to visit a jail (show your bar card); and how to file basic motions. They also provided examples of the differences between criminal and civil rules for evidence. In the final few minutes, volunteers were chosen to practice their newfound skills in several courtroom scenarios, including a mock arraignment and bail hearing.
“We ran out of time before all the questions could get answered,” says Jim McMichael, the bar association attorney who helped organize the seminar. “People were so concerned, saying, ‘I don’t know what I’m doing.’”
Some in attendance were unimpressed with the crash course. “In three hours, they’re supposed to become criminal defenders?” says Henry Walker, a longtime criminal defense attorney in Shreveport and the former president of the Louisiana criminal defense bar. “They just learned how to trust the DA, make quick deals, dispose of the case, and go back to their real jobs.”
But Judge Brady O’Callaghan, who helped implement Caddo Parish’s system of appointing private lawyers, believes many of them are more capable than they have given themselves credit for. “If someone can depose a doctor for five hours, they can do a plea hearing,” he says. “I’ve never known a lawyer to tell a paying client, ‘I can’t learn this, I’m sorry.’”
In O’Callaghan’s view, all of these lawyers have a professional obligation to offer their assistance, when needed, to the poor. “This is not something we’re ecstatic about,” he says. “It’s not like we’re just picking out of a hat and saying, ‘Hey, let’s see what happens.’... But as a temporary solution, it is better than either releasing these defendants from jail or incarcerating them without any lawyer.”
The appointed lawyers say their lack of experience is only part of the problem. The court also does not pay them to take the cases and rarely offers funds for hiring investigators or expert witnesses. They have little incentive, in other words, to investigate crime scenes, call witnesses, meet with clients and their families, and study up on the developments in criminal law in the years since they left law school.
“We’re going to prioritize our paying cases, there’s no denying it,” says David Turansky, a former divorce lawyer who now focuses on personal injury cases. “We’re just not going to spend our time learning constitutional law or what a ‘Batson challenge’ is.”
Steve Baker, a chatty adoption attorney with a thick book of New Yorker lawyer cartoons in his office, says it would be unethical for him to take the cases. His strategy has been to object to the appointments outright, and to share useful legal motions and pleadings with his colleagues so they can get out of them, too.
In one case, Baker was appointed to represent a defendant who faced life in prison — but he took no action and never visited the person in jail (the case was reassigned to another lawyer more than seven months later). In another, a partner at his firm instructed his son, a junior associate, to walk down to the courthouse and take a plea as quickly as possible.
“Most of us are just trying to get in, get out,” he says.
On July 1, Louisiana’s new fiscal year began, and public defense offices in several parishes received a small influx of funds. National attention on the crisis waned, and in Caddo Parish and elsewhere the public defenders have temporarily reduced their wait lists and stopped actively appointing non-criminal attorneys.
But because the fundamentals of how the state funds public defense — primarily through traffic tickets — have not changed, the defenders say their money will inevitably run dry in the course of only a few months. In Caddo, any private attorneys who have already been assigned cases still have to see them through, and the appointments may resume later in the year.
“We’re trying not to have to do this,” says Pam Smart, the district’s chief public defender, referring to the appointment of non-criminal attorneys. “But we’re going to always be teetering on the edge of it.”
A few hours southeast, in an office decorated with a wall-sized map of the state of Louisiana, a lawyer named J. Keith Gates sits behind two heaps of files: one for his job as a prosecutor, the other for his job as a public defender.
“Look, it’s all courtroom work,” he says, pulling a file from each stack to show their similarities. “There’s no conflict unless you’re prosecuting and defending at the same time.”
Winn Parish
New Orleans
Public defender office
$191,803 in public defender expenses (2015)
$153,244 in state funding (2015)
Staff 2 part-time attorneys, 1 part-time investigator, 1 part-time secretary (July 2016)
Underfunded
State funding covers a percentage of the Winn Parish public defender office's expenses.
79.9%
Overworked
In 2015, the office had 742 cases.
Per-attorney caseload
State limit
Note: State limit is the maximum number of cases that an attorney should handle a year. It can be a combination of felony, misdemeanor, juvenile, mental health, traffic, capital, and appellate cases.
State funding does not include local revenue, which fluctuates significantly every month.
Source: Louisiana Public Defender Board
It is a situation practically unheard of elsewhere in the U.S. — a half-prosecutor, half-defender — but in Winn Parish, where the funding crisis left the public defender’s office even more decimated than in Caddo, it was perhaps the only option.
Last year, the Winn public defender saw its staff of three attorneys, two investigators, and two secretaries slashed to one part-time lawyer — a former Louisiana State University football player named Herman Castete — one part-time investigator, and a part-time assistant.
Castete implemented a wait list, and poor defendants in conflict cases were sitting in jail without an attorney. “It may be impossible for the public defender’s office to remain open,” he wrote in an internal report to the state public defender board. “There is simply no money available.”
To temporarily resolve that situation, the district judge, Jacque Derr, began appointing attorneys from the private bar, just like in Caddo Parish. But Winn is more rural, with fewer available lawyers, so Derr had to take the additional measure of enlisting Gates.
It is against Louisiana Public Defender Board policy for anyone serving with any public defender’s office to also serve as a prosecutor within the same district. But in this case, the defender himself, Castete, had signed onto the idea.
Gates says that he, Derr, Castete, and the DA are all very diligent about avoiding potential conflicts of interest. As city prosecutor, he mostly handles minor cases brought to him by the city police (battery, disturbing the peace, DUI, shoplifting, theft), while in his new role as a district defender, he is handling more serious felonies (armed robbery, weapons crimes, drug crimes). If there is any overlap, he has promised to recuse himself. “We don’t want the appearance of impropriety,” he says.
But to Stephen Singer, the former member of the state public defender board who objected to using Gates as a defender, this is more than just a rural parish performing triage during a funding crisis. “He’s a prosecutor. He plays for the other team,” Singer says.
For example, many defendants charged with felonies in district court, where Gates would be their defender, have also been charged with misdemeanors in city court, where he is the prosecutor. In short, Gates could have defendants whom he has both prosecuted and defended.
Derr — whose chambers are decorated with a sign reading, “Be Still And Know That I Am Boss” — agrees there is a conflict, but, “Nobody’s ever said, ‘Hey, judge, he prosecuted me, I don’t want him defending me.’”
Besides, he says, there are more pressing issues for Winn Parish to resolve than Keith Gates’s dual role — like whether the public defense crisis will slow down the very important prosecution of Kenneth Bratton, a defendant whom the judge calls “a one-man serial crime wave.” Bratton has most recently been accused of at least three counts of burglary, three counts of trespassing and damage to property, and stealing gasoline. He also led the sheriff’s office on a nine-day manhunt.
“Ain’t no question that dude did it,” says Derr, who will be presiding over Bratton’s case.
The only problem is that Bratton has been sitting in jail for over a year without an attorney, trying to write his own legal motions, because the defender’s office is so undermanned. In order to make sure that he has no constitutional claim to be released, the judge first tried to appoint two civil rights attorneys from all the way in New Orleans without notifying them. They found out and objected.
Anna Lellelid, one of the attorneys conscripted from afar, says that being 250 miles away from her client would make her just as ineffective as a non-criminal lawyer. “He’s just shuffling attorneys around,” she says of Derr, “trying to do whatever he can to moot the underlying issue, which is the funding of the public defender’s office.”
But now the judge is excited about his new strategy: he will have the prosecutor, Gates, represent Bratton.
“Kenny’s got a lawyer,” Derr says. “So now we can convict him.”
