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Louisiana Indigent Defense Boards: An Assessment of Local Indigent Defender Boards

LOUISIANA INDIGENT DEFENSE BOARDS:

AN ASSESSMENT OF LOCAL INDIGENT DEFENDER BOARDS

By James E. Boren 830 Main Street
Baton Rouge, LA 70802
[email protected]

TABLE OF CONTENTS

  • History: An Assessment of the System Promised
  • The Present: An Assessment of the System Delivered
    • Responses of Indigent Defender Boards
      • Minutes of Local Board Meeting
      • Compliance with Procedural Rules of Public Bodies
      • The Lack of Local Oversight
      • The Extent of Local Oversight
      • Professionalism of Local Boards
      • Written Policies and Standards
      • Frequency of Meetings/Quality of Local Oversight
    • Responses of Judicial Districts
  • Conclusion

LOUISIANA INDIGENT DEFENSE BOARDS:

AN ASSESSMENT OF LOCAL INDIGENT DEFENDER BOARDS

I. HISTORY: An Assessment of The System Promised

In 1963, the United States Supreme Court held that the Fourteenth Amendment of the United States Constitution made applicable to the States, the Sixth Amendment’s demand that counsel be provided to indigent defendants facing criminal prosecutions. Gideon v. Wainwright, 372 U.S. 335 (1963). Gideon specifically recognized that our adversarial system of justice could neither be fair nor functional if the trial of paupers was conducted without the guarantees of counsel:

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.

Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.

Gideon v. Wainwright, 372 U.S. at 344.

As the Louisiana Supreme Court noted six years later, “over a century before Gideon v. Wainwright, Louisiana had recognized the right of the defendant in certain felony cases to have the benefit of court-appointed counsel, and we have continually expanded this right.” State v. Austin, 229 So. 2d 717, 718 (La. 1969). Nevertheless, in the years after Gideon, Louisiana has had difficulty fulfilling the promise of a fair and functioning adversarial system.

In 1974, the Louisiana Constitutional Convention attempted to fulfill the promise of Gideon and resolve a number of the deficiencies in the provision of indigent defense. Article 13 of the Louisiana Constitution of 1974 guaranteed not only the right to counsel for indigent defendants but specifically provided that “the legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

In that same year, the legislature attempted to provide a uniform system through the creation of local boards. La. Rev. Stat. Ann. § 15:144 et seq. (Title XIV: Right to Counsel). The local boards relied upon local funds, and handled all administrative functions. The statutory mechanism for the creation of these boards provided that the members of these boards were to be appointed by the district court from nominations by the local bar associations. This continued a tradition of local control of the indigent defense function.

The statute has been amended twice in recent years. First, in 1990, the statute was amended to address racial inequities in the appointment of board members. See Acts 1990, No. 1044, § 1, adding La. R.S. 15:144 (D). The statute was amended again in 2004 to address problems with judicial involvement or management of the district boards. See Acts 2004, No. 367, § 1, eff. Aug. 15, 2004 adding La. R.S. 14:144 (E).

Despite the legislature’s ongoing effort to address the deficiencies in the system, a burgeoning crisis culminated in a series of rulings that detailed the deficiencies. Notably, in 1993, the Louisiana Supreme Court observed:

Specifically, the system has resulted in wide variations in levels of funding, both between different IDB’s and within the same IDB over time. The general pattern has been one of chronic underfunding of indigent defense programs in most areas of the state. . . . The system is so underfunded that there is a “desperate need to double the budget for indigent defense in Louisiana in the next two years.” . . .The unique system which funds indigent defense through criminal violation assessments, mostly traffic tickets, “is an unstable and unpredictable approach.” n10 Id. The underfunding which results from this system has serious consequences.

State v. Peart, 621 So. 2d 780, 790 (La. 1993). In response to this crisis, the Louisiana Supreme Court created the Louisiana Indigent Defense Board to oversee an initial provision of additional State funds. Still governance remained local, as funds were predominantly local.

Subsequently, as directed by the Supreme Court, the legislature took over the responsibility for the Board, transforming it into the Louisiana Indigent Defense Assistance Board (LIDAB). See Acts 1997, No. 1361, § 1, eff. Dec. 31, 1997 enacting La. R.S. 15:151 (“To create the Indigent Defense Assistance Board in the office of the governor and to provide with respect to the appointment of its members and officers.”).

LIDAB has had some oversight and funding responsibilities since its inception. As noted below, however, the creation of LIDAB did not resolve the indigent defense crisis in Louisiana. In 2005, the Legislature amended the statute creating LIDAB to require reporting standards and to widen the make-up of the state board. See Acts 2005, No. 343, § 1, eff. Aug. 15, 2005. Funding for LIDAB, however, remained at a relative standstill, or at least relatively so, from 1996 to 2005. Indeed, the Legislature saddled the Board with additional responsibilities, like La. R.S. 15:149.1 which requires LIDAB handle capital post conviction, by adding Acts 1999, No. 1012, § 1., without providing additional funding. Only in the legislative session of April 2006, did the budget provide an additional ten (10) million dollars for indigent defense funding, during a session after which the legislature had recognized that to satisfy constitutional minimums, indigent defense funding was required at, a bare minimum, at fifty-five (55) million dollars. See SCR 25 (Spec. Sess. Feb. 2006) (“the 2006 fiscal year estimate for Louisiana indigent defense services is fifty-five (55) million dollars.”).

While LIDAB remains able to distribute the moneys set forth by the legislature, it appeared effectively unable to provide the regulatory supervision necessary to ensure the effective provision of indigent defense services. In 2003, the Louisiana Association of Public Defenders adopted standards to ensure the effective provision of indigent defense services. These standards were the first and significant step forward to ensuring a uniform provision of indigent defense services. Those standards were not adopted by the State Board until 2006, and the Board has made the standards merely aspirational. While the Board reportedly voted to impose LIDAB case-load standards, the minutes of the March 2, 2006 Board meeting where this vote occurred reflect that they apply solely in districts receiving emergency funds . [1]

Similarly, although the legislature has clearly intended to structure the indigent defense delivery system in a manner that reduced vestiges of racism or sexism, and ensured independence from the judiciary, the system that exists in Louisiana today – with local boards – has been left without oversight or uniformity. A history of patronage and political influence has been difficult to eradicate. See e.g. Walker v. State through the Louisiana Legislature, 40,402 (La. App. 2nd Cir. 2005), 917 So. 2d 1229, 1234 (noting claim that “judges have premeditatively used the appointment process to take control of the indigent defender system in Caddo Parish”).

In State v. Citizen, 04-1841 (La. 4/1/05), 898 So. 2d 325, the Louisiana Supreme Court observed that it was the legislature’s responsibility to provide a uniform system of indigent defense services:

[T]he constitution explicitly places the duty of providing a working system for securing the representation of indigent defendants squarely on the shoulders of the legislature.

Citizen, at 337.

The local boards have been long touted as an effective method of providing the oversight necessary to establish that uniformed system.

Because LIDAB was designed as a mere funding mechanism, it was left to the local boards to implement case-load and performance standards, to provide appropriate training for administrators, supervisors, and support personnel, as well as oversight – not just of lawyers but of others performing the defense function under their auspices, such as investigators, experts, and support staff. This author believed a review of the efficacy of such a locally run system was necessary to assess whether local control provides the structure and supervision necessary to ensure that the adversarial system is fair and functioning.

II. THE PRESENT: An Assessment of The System Delivered

While there has been significant critiques of the local boards for being vestiges of patronage, and for failing to ensure the independence of the indigent defense function, 2 there has been no overall study of the make-up of the local boards. Indeed whenever criticism turns to a specific local board, see e.g. NLADA Avoyelles Parish study, the suggestion is usually made that the problem arises as an aberration rather than the norm.

On April 20, 2006, a study was initiated to determine whether boards are in general compliance with the statutory mandates and, perhaps more importantly, whether the district boards were serving the goals underlying the statutory system. Public records requests were sent to each of the forty-one (41) judicial indigent defense boards seeking specific information concerning the actions of the boards. See Appendix A, filed on line at www.jameseboren.com.

Public Records requests were also sent to each of the Chief Judges for the forty-one (41) judicial districts seeking information on the method of appointment, the make-up of the boards, the involvement of the local bar associations in the appointment process and the extent of judicial involvement in the process. See Appendix B, filed on line at www.jameseboren.com . What follows is a statistical analysis of the responses to these requests, and an assessment of the effectiveness of the statutory enactments creating local indigent defender boards.

It is perhaps appropriate to note as a general matter that each of the Chief Judges for the judicial districts promptly responded to the public records requests – whether the information was available or not. On the other hand, responses from the local boards were neither timely nor complete. Many had different views about whether they were required to respond, how much money had to be paid for gathering the information, and even whether the Sunshine laws applied to the local boards. Some just refused to answer. Some were offended by the request and called it bothersome. This diverse approach to whether they should or not respond to the Public Records Requests is perhaps the first indication that uniformity does not exist throughout the state’s local boards.

A. Responses of Indigent Defender Boards

The public records request asked for a small number of documents reflecting the management and operation of the local indigent defender boards. This included, (1) Minutes of the board meetings; (2) Policies or standards adopted by the local boards, and (3) Nomination information concerning the membership on the boards. Given the enacting legislation, responses concerning these items were expected to provide some indication whether the local boards were performing their function.

1. Minutes of Local Board Meeting

Public records requests were sent to each of the forty-one judicial indigent defense boards, requesting inter alia, minutes of the meetings of the board. 3 Five indigent defense boards simply failed to respond to the request. 4 Of the remaining thirty-six districts, an additional four districts kept no minutes at all, despite a statutory obligation to do so. 5 Illustrative is the response of one of these districts was:

“IDB conducts no formal meetings. Last formal meeting was either in 1998 or 1999. Informal meeting are held over the phone and no minutes are kept.” 28th JDC.

This response appears to be in direct contradiction to the prevailing legal view articulated by the Attorney General and relied upon by the current LIDAB, in response to a question concerning the legality of teleconferencing:

You have requested a clarification of Opinion Number 00-423 on behalf of the Indigent Defense Assistance Board (hereinafter referred to as the “Board”), regarding Louisiana’s Open Meetings Law. Specifically, you ask: Is the Open Meetings Law violated if a number of Board members meet in a public place, noticed and open to the public and a “few” members attend the meeting through teleconferencing?

LSA-R.S. 42:5 provides:

A. Every meeting of any public body shall be open to the public unless closed pursuant to R.S. 42:6, R.S. 42:6.1, or R.S. 42:6.2.

B. Each public body shall be prohibited from utilizing any manner of proxy voting procedure, secret balloting, or any other means to circumvent the intent of R.S. 42:4.1 through R.S. 42:8.

C. All votes made by members of a public body shall be viva voce and shall be recorded in the minutes, journal, or other official, written proceedings of the body, which shall be a public document.

The ” viva voce” voting requirement in the above cited provision is a “living voice” or “live voice” requirement. This office is of the opinion that a vote by viva voce requires the person voting to be physically present. An appearance by telephone or video telephone does not satisfy this requirement.

This reasoning is reinforced by LSA-R.S. 42:7.1 which requires the written minutes of a public body to include the “members of the public body recorded as either present or absent.” In order to establish a quorum of a public body, it is the opinion of this office that the physical presence of a simple majority of the total membership of that body is required.

While we regret any limitations that may cause Board members to miss a meeting of the Indigent Defense Assistance Board, deliberation or action via teleconferencing would not satisfy the presence requirement for purposes of the Open Meetings Law.

Attorney General Op. No. 2000-423, 2001 La. AG LEXIS 231.

Six Boards provided no minutes, five had none, and thirty had minutes.

2. Compliance with Procedural Rules for Public Bodies

Public bodies are required to provide public notice in advance of meetings, so that the public can attend and monitor the probity of action of public officials. Of the districts capable of responding to this 6 modest request, almost 25% simply failed to comply with the most basic of existing rules and regulations. Only thirteen of forty-one districts provided any public notice whatsoever of their meetings. In some cases, meetings are held without a quorum or over the phone.

It appears that the vast majority of the local boards are simply not complying with the prevailing law concerning the notification of public meetings and the maintenance and publication of minutes.

3. The lack of local oversight

While the lack of actual compliance with the public meetings laws presents a significant concern over the local board’s fidelity to their obligations to indigent defendants, of as great a concern are the minutes that were returned in response to the survey. These minutes reflect a general lack of oversight by the local boards.

The minutes provided by the districts reflected that only four of forty-one indigent defense boards had even addressed the issue of case-loads. Two of these districts (the First and Ninth District) addressed the case-load issues only in the face of litigation and expert reports concerning case-load problems. A third set the case-load at three hundred and fifty cases a year, significantly higher than the case-loads adopted by the Louisiana Indigent Defense Assistance Board – which are themselves higher than national average. Although these local boards are responsible for all oversight of the indigent defense function, the minutes do not reflect that the local boards made any comprehensive assessment of: the professionalism of the provision of indigent defense services; the quality of representation; compliance with LIDAB case-load standards; ability to meet the Standards of Practice adopted by the LPDA and LIDAB. This is particularly surprising in that LPDA’s Board consists of the Chief Public Defenders across the state; since LPDA adopted the standards in 2003, caseloads and standards have not been on the agenda of any local Board in the three years since the Chief’s endorsed them.

The minutes provided by the local districts reflected that not a single board had adopted either mandatory or aspirational standards for the delivery of indigent defense. Nor had they even been on the agenda for discussion.

4. The Extent of Local Oversight

Where the minutes did reflect some action by the local boards concerning the conduct of the local defender offices, questions still remain about the quality of that oversight. Indeed the minutes reviewed in Appendix A reflect that only ten of the forty-one district boards provided any minimal amount of oversight in the review process. One board directed that staff attorneys visit with their clients when held at jail within seven days, but this was the exception among boards rather than the rule. Generally the oversight was responsive to specific complaints. Perhaps even more disturbing, the minutes of the board meetings reflect that oversight was generally initiated from judges who had complaints about the service of lawyers rather than by the Chiefs or staff. Independence from judicial and political influence is the initial and paramount principal of the American Bar Associations, 10 Principles of an Indigent Defense System.

Mostly the minutes reflect oversight concerning the salary of lawyers, the issuance of contracts, or the payment of funds to experts or for membership dues. For instance, the minutes from the 31st JDC reflect simply that the Board agreed to pay a three hundred ($300) dollar fee per attorney, for five attorneys, for membership in a professional association.

In the 10th JDC, the minutes reflect without fail, that the local board awarded contracts to the lowest bidder (some of the rates are so low as to push the envelope of current wage practices. For instance the rate for payment of a contract counsel to represent presumably all indigent children and defendants in the district in civil matters was on one occasion $900 per month, just over $10,000 per year. 7 .

In still other districts, the local board appeared to simply split District Assistance Funds between attorneys without any supporting data, and then split remaining revenue between attorneys and the Chief’s office expenses “for tax purposes.” Minutes 13th JDC. Even this oversight was better than that provided in other districts: in the 11th JDC, for instance, the Chief did not attend the board meetings, and had no knowledge of what occurred there.

5. Professionalism of Local Boards

This research sought to assess whether the members of the local boards were selected in a manner that recognized the professionalism and experience of the appointee, or whether the appointments were made based upon personal relationships between judges and appointees. Specifically, the research sought to determine whether the members were selected impartially and objectively from a series of individuals, or were selected on a basis of friendship, patronage or other personal relationship. In terms of the professionalism and competencies of the local indigent defender boards, only three Boards furnished the resume of any of the board members suggesting, inter alia, that judges were not making an independent and studied assessment of valid candidates but rather appointing individuals based solely upon their knowledge of that individual.

Such “selection” process is similar to a practice criticized in Guice v. Fortenberry, 722 F.2d 276, 281 (5th Cir. 1984) (“Judge Adams’ testimony revealed that no objective criteria were used in his selection of grand jury foremen; rather, he selected individuals, always white, who were known to him. The dissent notwithstanding, Judge Adams’ testimony regarding the qualifications of the particular individual he chose as foreman of the grand jury does not undermine our reasoning when considered in the light of the fact that he testified that he made no inquiries regarding the qualifications of any of the other venire members.”).

As noted in Guice, the current manner of selection of Board members by the judges leaves the process open to discrimination and, at best, the appearance of discrimination. The public records suggest that only twenty-seven (27) persons of color were appointed to the local boards out of over two hundred and eighty board members. In twelve instances, the local boards provided no response concerning the racial or gender diversity of the local boards. In a significant number of other instances, it appeared that no person of color served on the local board, with minimal inclusion of women. In at least six instances, the local boards were made up of nothing more than white men. The legislature’s effort to insure gender and racial diversity on the boards, has failed.

6. Written Policies and Standards

Only four of the local boards appeared to have written policies in place concerning the appointment of new board members. No board responded with written policies detailing expectations concerning the quality of representation, and only one of forty-one boards had developed or promulgated written policies to ensure the protection of an indigent defendant’s constitutional rights.

Despite the promulgation of the Louisiana Public Defender Association Standards, and the acceptance of those standards by LIDAB, not a single local board had adopted those standards as aspirational let alone mandatory standards. It has never even been brought up as an agenda item.

7. Frequency of Meetings / Quality of Local Oversight

Local control is occasionally justified by reference to the ease of oversight, and the proximity of review, but inspection of the district’s responses to the public records requests makes clear that oversight is not ensured through meetings of the local boards. The majority of the local boards met less than two times a year, on average roughly 1.7 times a year, over the last five years. While it is conceivable that a functioning system of indigent defense might be maintained with this infrequent number of meetings, it is clear that the system, so consistently publicly and judicially noted as dysfunctional, cannot be transformed or enhanced with such weak oversight.

The minutes of only four judicial districts (less than 10%) reflect that any significant amount of time was spent on anything besides budgets and other financial matters, and no board (except East Baton Rouge) addressed the need to comply with the American Bar Association’s Ten Principles for the Delivery of an Indigent Defense System, caseload standards, practice standards, the Legislative Task Force (which has met often for two years), or LIDAB standards.

B. Responses of Judicial Districts

Records requests were sent to each of the forty-one judicial districts seeking information on the method of appointment, the make-up of the boards, the involvement of the local bar associations in the appointment process and the extent of judicial involvement in the process. Overall, the responses indicated that few districts: complied with the statute’s appointment requirements (2 districts); secured nominations from the local bar associations (2 districts); had written rules or policies on appointment of the indigent defense boards (4 districts). Moreover, zero districts had, as required by statute, a written policy to ensure that the race and gender of the board members reflected the general population within the district, and no judicial district provided policies for ensuring compliance with the enabling statutes, which have existed since 1990.

It is clear that the vast majority of the districts did not have or provide information detailing their compliance with the statutory nominating procedures – which require that the district court judges appoint from a list provided by the local bar. Only four judicial districts had written rules concerning the nomination process. The remainder appeared to have no rules, or no published rules.

In several districts, the local bar had not met or provided nominees for over five years. In others, the responses indicated that the local bar had never made a nomination. In the vast majority of instances, there was simply no record of the process by which board members were nominated.

While in two instances it appears that the local board members were also employed by the local indigent defense board, this did not appear to be the case in the majority of cases. It remains difficult to ascertain, however whether patronage relationships exist between members appointed to the boards and the judges, or to the attorneys working for the local boards. The only thing certain, is that no records concerning this issue, are kept by the board or courts, so review is impossible.

III. CONCLUSION

The endorsement of standards for the provision of indigent defense is a strong step forward by LIDAB and the LPDA. The adoption of these standards, along with case-load limitations, provides a basis to professionalize indigent defense services.

What is clear however from the review of these documents, published at Appendix A is that local boards are generally ill-suited to provide the type of expertise, oversight and independence to ensure that indigent defense services are provided in an effective, cost-efficient and uniformed manner.

Local boards remain ill-suited to avoid the political or judicial influence, and depend too extensively on the management and supervision provided by volunteers. As the NLADA recently observed, changes in the manner in which defense systems are managed renders the role of local volunteer boards obsolete:

At the time of the 1974 Louisiana Constitutional Convention the idea of local indigent defense boards made sense. The practice of law was not as complex, not requiring as much specialization or continuing training, and requiring less oversight and accountability. The move to regionalization diminishes the need for local boards. The time has come to eliminate the local boards.

The real question is not whether to abolish the local boards but rather how to do it.

Report by the National Legal Aid and Defender Association (NLADA) ” A Strategic Plan to Ensure Accountability & Protect Fairness in Louisiana’s Criminal Courts“, at 21, commiss. by the Louisiana State Bar Association (LSBA) and the Louisiana Bar Foundation (LBF).

1 http://www.lidab.com/Minutes/2006/3-2-06.htm (“Mr. Boustany moved to amend the motion by requiring all indigent defender boards receiving emergency funding from the LIDAB be required to adhere to LIDAB caseload standards. Mr. Sanchez accepted the amendment, which was seconded by Mr. North. The motion, as amended, passed without opposition.”).

2 See BJA Report, An Assessment of the Immediate and Long-Term Needs of the New Orleans Public Defender, April 10, 2006. The BJA report recognized that a series of long-standing problems in the Orleans indigent defense system resulted in under-representation of defendants. The report noted under-funding and a culture that supported “court-centered rather than client-centered” representation as critical issues. See BJA Report at 8. The report also indicated that the use of part-time attorneys created both unfair, and potentially unethical situations. Id. at 8-9. See also Report by the National Legal Aid and Defender Association (NLADA) ” A Strategic Plan to Ensure Accountability & Protect Fairness in Louisiana’s Criminal Courts.” Com. by the Louisiana State Bar Association (LSBA) and the Louisiana Bar Foundation (LBF).

3 Indigent Defense Boards are public entities and the laws concerning public meetings apply in full force to meetings of indigent defense boards. See e.g. Attorney General Op. 04-0284, 2004 La. AG LEXIS 423 (noting that indigent defense boards are created “pursuant to LSA R.S. 15:141 et seq., and is considered a political subdivision of the state.”) citing Attorney General Op. Nos. 94-529 and 96-478. See also Attorney General Op. No. 00-423, 2001 La. AG LEXIS 231 (noting that public meetings law applies in full force to indigent defender meetings).

4 These five districts were Orleans, the Second Judicial District, the Eighth Judicial District, the Fourteenth Judicial District and the Thirty-Third Judicial District.

5 These four districts were the Sixth District, the Eleventh District, the Twenty-Eighth District and the Thirty-Eighth District.

6 An additional district indicated that these records had existed but were destroyed during Hurricane Katrina.

7 The Louisiana Supreme Court web cite reflects that over one thousand two hundred (1200) juvenile cases were filed, for instance, in the 10 th JDC during the year of 2005. See La. Supreme Ct. Annual Report, 2005; www.lasc.org/press_room/annual_reports/reports/2005_ar.pdf.