The indigent defense crisis in Louisiana continues, but it is now taking a new and more ominous direction. In order to fund local public defenders, the state has taken $3 million from capital defenders, leaving at least 11 Louisiana defendants who are facing the death penalty without a lawyer.
New Orleans Chief Defender Derwyn Bunton’s decision to refuse new clients made national news, and the Louisiana legislature took action. In June 2016, Gov. John Bel Edwards signed into law a bill requiring the state’s indigent defense agency to spend more on local public defenders. A $5 million infusion propped up local indigent defender offices statewide.
But $3 million of that came from the fund used for the defense of those facing the death penalty. “They robbed Peter to pay Paul,” said Jay Dixon, chief defender for the Louisiana Public Defender Board. “We’re still in crisis; it’s just a different crisis. And now they can’t shift any more money around, so we could be facing an even greater crisis next year.”
A Marshall Project report issued on November 28, 2017 indicates that of the 11 indigent defendants facing a death sentence without a lawyer, five have already been indicted. Though some of these defendants may get a temporary attorney who can try to continue the case until there is money for a proper defense, they won’t get experienced death penalty attorneys until there is money to pay them.
Louisiana does not employ state-level capital defenders. Instead, the state pays private law firms and nonprofits to handle the defense of death penalty cases. Ben Cohen, an attorney with The Promise of Justice Initiative, one of the capital defense firms, said that they are overloaded.
“Imagine a conveyer belt of [capital cases], and we’re grabbing them off as they come,” said Cohen. “But with the funding cuts, they essentially pulled some of us away from the line, and now the cases are piling up and crashing to the floor.”
Longtime death penalty prosecutor Hugo Holland blamed the state’s policy of hiring qualified private lawyers to defend indigent defendants facing the death penalty for Louisiana’s Sixth Amendment crisis.
“The defense that the state of Louisiana provides people charged with capital crimes, Donald Trump would have trouble affording,” said Holland, who is now chief lobbyist for the state’s district attorneys’ association. “The bottom line is this simple: you guys over there at your boutique law firms, do your fucking job and provide anyone represented by you with constitutional representation…. Stop intentionally thwarting the administration of justice.”
Holland’s understanding of what comprises “constitutional” representation may be different from death penalty-qualified defense attorneys, and perhaps appellate court judges. According to The Advocate in Baton Rouge, 96 percent of Louisiana death sentences have been reversed by higher courts since 2000. If by “constitutional” Holland means ineffective, which is apparently what Louisiana’s previous death penalty defense scheme was, he’s in for a fight from the firms that now provide effective capital defense services. According to the Marshall Project, the capital defense offices are considering a lawsuit over the lack of funding.
Nick Trenticosta, a capital defense attorney in New Orleans, said that the state must find more money. “The fact is, capital defense is very costly; that’s just the nature of the beast,” said Trenticosta. “If you want to have the death penalty, you’re going to have to pay for it. You can’t try to put a man to death on the cheap.”
Sources: www.theadvocate.com, www.themarshallproject.org
Originally published in Criminal Legal News on February 16, 2018.