ACLU files lawsuit against public defenders, challenges broader funding system

The man behind the wheel of a minivan involved in a fatal October wreck became the face of New Orleans’ public-defense crisis Thursday when the American Civil Liberties Union of Louisiana brought a federal lawsuit against the city’s public defenders for declining to represent him.

The lawsuit, sparked after Orleans Public Defenders this week punted on representing the van driver and two other named plaintiffs, also targets the state Public Defender Board, with the ultimate aim of correcting what public defenders say are crushing caseloads and a $1 million budget hole.

The ACLU is in agreement with public defenders about what it calls a “dysfunctional” state funding scheme that has led to budget cuts for lawyers representing the poor across Louisiana in the past year.

Although the lawsuit filed in the federal court in Baton Rouge appears to target public defenders, it takes larger aim at the state’s public legal aid system, financed mostly with fines and fees from defendants themselves. Orleans Chief Defender Derwyn Bunton also has criticized the system.

“Louisiana’s structure dictates that the funding available to a public defender is inherently unreliable,” the lawsuit says. “As a result, public defenders have continually faced funding emergencies like the one in Orleans Parish. These crises have in turn forced offices into extreme measures like refusing clients.”

The ACLU’s suit in Louisiana follows on the heels of similar lawsuits it has brought in the past year against public defense systems in California, Idaho and Washington.

Dane Ciolino, a law professor at Loyola University, termed the case a “friendly lawsuit,” since both parties are in agreement about the need for more funding. If a federal judge rules the ACLU’s way, he said, the result could be a declaration that the current public defense system is unconstitutional, which could then force the state to overhaul how it pays for indigent defense.

“We need to make a structural change to bring us in line with the rest of the country,” Bunton said. “What this lawsuit represents is a belief by the ACLU that state actors aren’t going to do it on their own.”

Asked if he welcomed the lawsuit against his office, Bunton replied, “I welcome reform. I want my home to learn the lessons of Ferguson (Missouri), New York and Cleveland. Instead of ... having to deal with injustices of the system, why not just deliver justice?”

The Orleans Public Defenders office had warned for months that it would begin to refuse clients accused of serious felonies, and it began doing so Tuesday. At least seven individuals, three of whom are named plaintiffs in the lawsuit, have been affected thus far. One magistrate commissioner is denying the public defenders’ motions to refuse cases, but several others have set court dates 30 days out to decide the question of who will represent poor defendants.

Bunton said continuing attrition had left a dearth of experienced attorneys to handle Class 2 cases, the most serious crimes short of capital cases. His office is filing notices declining representation in all of those cases.

The hearings next month in front of magistrate judges and commissioners will set up a second front over the question of who will represent indigent clients accused of serious crimes. Orleans Public Defenders is expected to reach a legal showdown with the dozen Criminal District Court judges over cases that the DA’s Office accepts for prosecution.

In the meantime, the ACLU asserts in its lawsuit, “OPD’s refusal to represent plaintiffs means that they must languish indefinitely in jail without counsel until OPD secures adequate resources to provide them with an attorney.”

Ciolino, the law professor, put the interim situation more succinctly: “It’s a mess.”

The driver of the minivan, 51-year-old Darwin Yarls Jr., was arrested Tuesday and remained in jail in lieu of $75,000 bail Friday. Police allege that Yarls, who is on parole until 2037 for a 1987 armed robbery, had cocaine in his blood when he failed to yield to a Chrysler Town and Country near the corner of Gov. Nicholls Street and North Claiborne Avenue early on the morning of Oct. 22.

The Town and Country T-boned the other vehicle, and Yarls’s back-seat passenger, Patty Spears, was ejected. She died at the scene.

Commissioner Jonathan Friedman ruled that Yarls was indigent based on his statements to the court. But Orleans Public Defenders — in a scene repeated several times this week — declined to represent him.

A court date to determine who will represent Yarls has been set for Feb. 16.

Bunton explained his office’s decision to refuse clients in a notice filed Wednesday in the separate case of Douglas Brown, a 44-year-old accused of robbing the cash register of a Subway store in New Orleans East. Brown is also a named plaintiff in the ACLU lawsuit.

Bunton said that in November one lawyer in his office was juggling 147 open felony cases, while another had 125 such cases. Bunton said those caseloads far exceed national standards — and, according to experts, violate state guidelines for lawyers.

If his office did take on Brown’s case, Bunton wrote, either he or the long line of existing clients waiting for a meeting with their lawyer would suffer. As a result, Bunton said, his office had to decline to represent the alleged stick-up artist.

A magistrate judge informed Brown that he would not be visited or interviewed in jail by public defenders, court records show. He remained in jail in lieu of $25,000 bail on Friday.

James Dixon, the chief state public defender and a named defendant in the case, said that given the state’s funding system, the lawsuit was “just a matter of time.”

“I would think that a Louisiana solution would be a better solution than a federal court solution,” Dixon said. “That was my biggest fear — that it was going to end up in federal court rather than fixing it locally. But now it’s where I did not want it to be.”

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