New Orleans judge orders release of inmates charged with murder, rape, armed robbery, for lack of money for defense
BY JOHN SIMERMAN| jsimerman@theadvocate.com
http://www.theneworleansadvocate.com/news/15428394-148/orleans-judge-orders-seven-inmates-facing-serious-charges-released-for-lack-of-money-to-defend-themApril 8, 2016; 10:29 a.m.
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In a blockbuster ruling Friday, an Orleans Parish judge ordered the release from jail of seven indigent inmates for lack of state money to represent them amid a squeeze on public defense funding in New Orleans and across Louisiana.
Criminal District Judge Arthur Hunter stayed his order, which also included a suspension of their prosecutions, pending an appeal from Orleans Parish District Attorney Leon Cannizzaro’s office. Assistant District Attorney David Pipes told Hunter an appeal is coming, and Hunter gave him 10 days.
The seven men will remain behind bars pending the outcome of those appeals. All of them face serious felony charges — including murder, armed robbery and aggravated rape — and all have been deemed indigent. Most have spent more than a year behind bars, going months without legal help on their cases, their attorneys said.
Hunter ruled that the lack of state funding for the defense of the seven men violated their Sixth Amendment rights, and the resulting uncertaintly of when their cases might move forward warrants their release,
“The defendants’ constitutional rights are not contingent on budget demands, waiting lists, and the failure of the legislature to adequatley fund indigent defense,” Hunter wrote in his 11-page ruling, portions of which he read from the bench.
“We are now faced with a fundamental question, not only in New Orleans but across Louisiana: What kind of criminal justice system do we want? One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?”
A spokesman for Cannizzaro’s office did not immediately respond to a request for comment.
Tulane Law School professor Pam Metzger, who is representing all seven in their bid for release, said she was “thrilled that the juge appreciates the extraordinary constitutional obligations of providing poor people wiht counsel and due process of law.” She said she was disappointed that Hunter stayed his ruling but that the attorneys would continue pressing to free them men. Among them:
Alex Bernard, 48, faces charges of first-degree robbery, simple battery and two counts of aggravated assault. According to his attorneys, he’s been without legal help for more than three months.
Darrian Franklin, 40, was indicted early last year on a second-degree murder count and obstruction of justice. He is accused of killing 35-year-old Trenton Gary in March 2014 near Behrman Highway in Algiers.
Henry Campbell, 21, was indicted three years ago on a first-degree rape charge and now faces additional counts of obscenity and battery of a correctional employee from his time behind bars.
Malcolm Smith, 23, is charged with armed robbery with a firearm and has remained behind bars for more than a year, including close to four months without counsel, according to Metzger.
Donald Gamble, 28, faces two counts of armed robbery and a charge of aggravated assault with a firearm, among other charges.
Joshua Vaughn, 22, is charged with armed robbery, armed robbery with a firearm, possession of a weapon by a felon and illegal possessoin of a stolen vehicle.
Benny Walker, 32, faves a host of charges that include two counts of attempted armed robbery with a firearm. According to his attorneys, he’s been jailed for 491 days, including more than three months without counsel.
Chief Public Defender Derwyn Bunton’s office had turned away the cases, citing a steep budget shortfall, bloated workloads and the attrition of several experienced attorneys in his office.
Hunter, who has taken drastic measures amid past funding shortfalls in the public defender’s office - he ordered the releases of several inmates in the aftermath of Hurricane Katrina - doled out the cases to private attorneys, who promptly sought a halt to the prosecutions and the release of the men.
Hunter’s ruling came after a series of hearings that began in November in his courtroom, with testimony from Bunton and Jay Dixon, who heads the Louisiana Public Defender Board, among others.
Their testimony supported the view that indigent defense in Louisiana is laboring under a constitutional crisis attributed to a system in which local public defender’s offices are funded largely through fines and fees leveled on criminal defendants, mostly traffic scofflaws. Those revenues have slid steadily over the past several years, in some parishes more than others. All told, almost a dozen district defenders offices across the state have formally instituted austerity programs.
In New Orleans, that has meant a hiring freeze since last summer and, beginning in January, a refusal by Bunton’s office to accept appointments in 110 serious felony cases, and counting, for lack of experienced attorneys to handle them, according to Bunton.
“Obviously the charges involved in these cases are really serious, so I do think folks should be concerned about public safety,” Bunton said Friday. “We wouldn’t need to be in this position if we provided the resources that were necessary under the constitution. You can only prosecute as fast as you can defend, and if you can’t defend you can’t prosecute.”
The news of Hunter’s order caught Myra Gary off guard. Franklin is accused of killing her brother on March 12, 2014, after a robbery attempt, she said. The men knew each other, she said.
“They were coming from WalMart, they tried to rob him, they had a scuffle in the car. He jumped out of their truck and ran. They shot him while he was running,” she said.
Trenton Gary left behind a son who is now 17, she said.
A paralegal for the district attorney’s office in Atlanta, Myra Gary said she understands due process, but not what happened Friday.
“It is horrible. He was killed two blocks from my mother’s house,” she said. “It’s just hard to hear this guy’s going to be walking the streets because of a technicality. How are we violating their constitutional rights when they took someone’s life? They violated their own rights by breaking the law.”
Metzger has argued that the legislature’s failure to adequately fund public defender’s offices in Louisiana is to blame for an inability to provide the accused criminals with a constitutionally adequate defense.
Advocates fear the funding troubles are only getting worse. In Baton Rouge, lawmakers now grappling with the state’s deep budget morass have threatened deep cuts in the $33 million in annual state funding that has supplemented local revenue, to the tune of about a third of the overall funding for indigent defense across the state.
The Louisiana Supreme Court has in the past endorsed a halt to prosecutions until adequate funding becomes available. But the state’s high court has stopped short of ordering action by the legislature.
At a recent hearing, Metzger described an “abject state of financial crisis. There is no money to fund these defenses...The cause of the delay rests entirely with the state. The legislature has been on notice not simpy for weeks, or months, or years, but for decades.”
In a legal filing last week, however, Cannizzaro’s office described the private attorneys as bent on “nothing less than anarchy” by pressing for the defendants’ release and a halt to their prosecutions, while “hoping for a paycheck” at the expense of justice.
“They are seeking to bring down a system they disagree with rather than protecting the rights of those individuals this court has appointed them to represent,” Pipes wrote.
Earlier this week, Hunter nominally granted requests by the attorneys for the seven inmates to lower their bonds. The judge granted only slight reductions to each of them, pending Friday’s ruling. That move appeared only intended to cross a legal hurdle to hold individual bond hearings before Hunter could take the drastic measure that he took on Friday.
