Originally posted at New International Times
Some three weeks after Katrina made landfall, I referenced (at the NIT)the complete collapse of the judicial system in Orleans and the surrounding parishes. There were some 69,000 parolees that were unsupervised, their whereabouts unknown; an additional 7,000 registered sexual offenders in New Orleans alone had been evacuated to localities in Louisiana and elsewhere that did not know their offender status. In the wake of Katrina, 10,000 violent offenders were transported, after a fashion, to other jurisdictions in Louisiana without proper paperwork to identify them, or their crimes. Many, many others under incarceration in New Orleans for lesser crimes were also sent to parish detention facilities farther north. An unknown number released on bond await their day in court.
The firm that I work for does not do criminal representation per se, but does represent municipalities and their law enforcement agencies. This has been a major headache for us, as the accused have been pursuing their rights to a speedy trial or being released without charge. There is a clash ongoing between the tenets of Louisiana law that provides for detention without charge for 60 days on felony charges and 45 days for misdemeanors and outsiders interpretation of civil rights under the constitution.
Obviously, both of these deadlines would have long expired for anyone held prior to Katrina and there have been many arrests in the wake of the storms. There are several issues besides the constant ticking of the clock at hand, namely, the destruction of every court in Orleans parish and all of the repositories of evidence and paperwork. New Orleans no longer has a single functioning courthouse; the main Criminal District Court compound remains shuttered and dark. Court records, the city’s two primary evidence vaults, coroner’s reports and the city crime lab were all flooded. Eye witnesses to crime have been flung across the nation, as have many of the attorneys. Defendants who were out on bond are now located across the country, some of them relocated to states far away with no prospects or means to return if called to make an appearance. And, of the former 1.5 million people that lived in the metro area, only 60,000 have returned on a permanent basis, so there is hardy much of a population to draw a jury pool from.
So, can the state provide defendants with the trial by jury that they are guaranteed by law? It doesn’t appear so, but when the state is struggling with so many financial and infrastructure issues, they are trying to walk a fine line in reestablishing law and order. Louisiana Gov. Kathleen Babineaux Blanco and the state Supreme Court have given prosecutors extensions, which defense attorneys say might be illegal considering that the state and U.S. constitutions guarantee defendants the right to a speedy trial. New Orleans police are patrolling during the day to prevent continued looting, but abandon the city patrols by night. Cases are piling up, both old and new.
Recently, an attorney in our office, representing a local detention center stood by as the Orleans Parish’s chief Criminal District Court judge ordered more than 100 prisoners freed. After reviewing the ruling, the Louisiana Supreme Court said 34 of the inmates should be released immediately. The others have to remain in custody until at least Jan. 6 while the district attorney’s office considers how to proceed in those cases. But, the DA’s office bears an unusual burden in attempting to prosecute cases when the evidence room at New Orleans Police Department headquarters on Broad Street, the crime laboratory on Tulane Avenue, and the basement of the criminal court at Tulane and Broad were all were flooded. Much of the evidence has been destroyed.
So, where do we stand on the rights of the criminally accused? Do we extend the deadlines in order to allow prosecutors additional time to make a case sans evidence? Do we hold the accused under the burden of transporting themselves back to the jurisdiction they are charged when it was the government that displaced them? Do we throw up our hands and allow a fractured community to sink further into lawlessness in the name of civil rights? Or do we just concede that you win some and you lose some and like the levees that protect New Orleans, we have to build the legal system over from scratch?
about the heinous nature of some of these crimes makes it very difficult for me to make an unbiased judgment. It is hard to concede that in order to preserve the civil rights of the accused that many of these individuals should go free.
Just some food for thought…another small, but important story, another chapter in the rebuilding of the gulf coast.
the “rights of the accused” mentality. Legal processes, even stripped down to pro forma “public defense” simply does not generate the same revenue stream as imprisoning the individual and keeping him there.
Who is defining “heinous” and who is making the accusation? If in fact there is evidence of a heinous crime, put if forth. The “trust me, these are bad guys” doesn’t wash.
The entire premise of our justice system is that charges must be made and the accused has the right to defend himself against the charges. Without that, we’re back to the entire reason the founders drafted the Bill of Rights. The King’s justice was absolute.
If we trample the basic legal rights of any accused, including those who fall under the Military Code of Justice, we have trampled the very principles we say we are fighting for. Slippery slope my friend.
in the wash of questions at the end of the diary, I think you missed the point or perhaps, I was not being clear.
I was not saying that civil rights should not be preserved. I was posing questions that were only to stimulate the discussion.
There is no question that many, many who were previously charged, i.e., before Katrina will be released because evidence has been lost or tainted. I do not have any grief over that, as the majority who indulge in such behavior will reoffend and will be rearrested. Crimes that occurred subsequent to Katrina were in no way my focus.
My larger concern is that in the disruptive environment that the court system finds itself in that many charges will be dropped because of these issues of expediency, when all that is required is to locate eye witnesses to crimes such as assault, armed robbery and attempted murder. These crimes are not a product of Katrina or of the aftermath, but the inability to produce witnesses in a timely manner certainly is. Neither the Red Cross or FEMA have any idea who they have relocated or where, so it is a bit absurd to think that a DA’s office could reasonably locate witnesses or provide transportation for return to the jurisdiction given the fiscal condition of the system.
Can we not agree that the court system in Louisiana is an extraordinary circumstance justifying some a-typical solutions? It was afterall, government neglect and subsequent intervention that finds the citizens of south Louisiana flung to the four winds. Extending the prescription period for bringing a case to trial under these circumstances is not all that extraordinary.
a varient of the bigger problem we face in the “new kind of war” environment. If we agree to break the law for extraordinary circumstances, then who defines those extraordinary circumstances and when?
Issues of expediency are not trivial ones, they are enshrined in our Constitution for a reason. Our founding fathers witnesses the abuse of absolute power, the very same abuse we are seeing in the WoT.
The fact that government neglect is the reason that LA’s citizens are flung to the four corners gives the government less benefit of any doubt, not more.
Act of God:
“An act occasioned exclusively by violence of nature without the interference of any human agency. It means a natural necessity proceeding from physical causes alone without the intervention of man. It is an act, event, happening, or occurrence, due to natural causes and inevitable accident, or disaster; a natural and inevitable necessity which implies entire exclusion of all human agency which operates without interference or aid from man and which results from natural causes and is in no sense attributable to human agency.” [Black’s Law Dictionary]
There is no one to blame here, and there is no conspiracy to circumvent the rights of the accused.
Issues of expediency are not trivial ones, they are enshrined in our Constitution for a reason.
Enshrined yes, set in concrete no:
and by the diarists own admission, the delay is not an Act of God, but an Act of Government. See “without the intervention of man” and “no sense attributable to human agency” clauses above, and the diarist description below:
“In the wake of Katrina, 10,000 violent offenders were transported, after a fashion, to other jurisdictions in Louisiana without proper paperwork to identify them, or their crimes. Many, many others under incarceration in New Orleans for lesser crimes were also sent to parish detention facilities farther north.”
Concrete under LA law, as referenced in the diary itself:
“There is a clash ongoing between the tenets of Louisiana law that provides for detention without charge for 60 days on felony charges and 45 days for misdemeanors”
The rights of public justice extend to the government’s ability to bring charges as required under LA law.
In many cases both the jailors and the incarcerated were evacuated in haste with as much security as could be afforded the situation. There was no admission or implication that documentation was left behind out of negligence, but sheer circumstance. To twist this as anything but a series of extraordinary events as the result of an act of God is just speculation on your part and flies in the face of reason.
And to the clash, it is between what is a legitimate interpretation of the law of the state and the intent of the constitution. This ground has been covered already re: the flexibility in the interpretation of ‘speedy trial’.
The vast majority of non-violent offenders have been released on the basis warrant prescription times and the LA Supreme court is reviewing the held-on-warrant cases on the remaining violent offenders who are currently held without charge.
Reasonable care required the State to transfer prisoners safely, with “proper paperwork to identify them, or their crimes” after the evacuation call was made. We also have reports of prisoners left in flooded cells for days without food and water.
To my mind, the fact that the State was negligent isn’t even a question. Proper planning and proper procedure for evacuation – even of prisoners – is basic. That the State failed to properly transfer prisoners, or transfer them at all does not give the State a do-over.
The problem is, as always, how do we know who did it?
Usually we don’t: We are just guessing. The sayso of an officer charged to fill his quota of arrests is not enough.
BTW how is it that the entire state of LA is helpless? They’re not underwater.
Random responses:
First and foremost, if your entire justice system is not functioning, there is no choice but to improvise. “Act of God” is a term of art.
It reads like one of your first priorities would be “triage”. Isolate property vs. personal, misdemeanor vs. felony cases. (I know there can be crossover). The former group is released, the latter not. Drunks, stoners, and car theives may get a pass, but no one charged with a violent crime would. Always a balance test to be sure, but how else to protect your citizens? (Definitely easier to keep them if the case(s) was based on eyewitness testimony).
…it would more or less be like a change of venue for the whole court system. That in itself would produce all manner of new burdens for DA’s, the accused and defense attorneys alike.
Without an operating court system in Orleans Parish do you have another choice? A bit far-fetched, but I think it possible to conduct at least some actions using video teleconferencing. (Ok, I know it sounds looney-toon). Seems I’ve read some jurisdictions allow witnesses to testify via video link. Is it that far a reach to impanel a jury in the same manner?
If the judge, and attorneys for both sides would agree, it would definitely simplify the logistics without harm to the defendant. Last stats I saw place huge numbers of Orleanians within Louisiana borders. Huge numbers in Houston and other parts of Texas and Arkansas, but there’s that State line thing.
I guess my point is that as long as the rights of the defendant are protected, what difference does it make if a bailiff and jury are 100 miles away, as long as they are properly sworn? (Of course that assumes you have enough evidence to take the case to trial).
I’m also curious about how much information was gathered and input into a computer system somewhere, and whether there were backups outside the damage zone. For instance, how much information is copied to NCIS?
It sounds like you’ll need a substantial influx of trained professionals as well to help accelerate the rebuild. Does LA and/or the Parish have the resources?
Very scary. You may be designing the future of jurisprudence.
The federal courts in Louisiana had video conferencing in place prior to Katrina, primarily for the judges to confer on non-oral arguments cases. To my knowledge, a similar system was not deployed in the state courts or local criminal and civil courts.
The main obstacle to implementing such a system now is money. The state is dead broke. Prior to Katrina we were in a state constitutional crisis over the public defender system which was deemed extra-constitutional because it was underfunded and understaffed. 80% of all cases that go to trial in the criminal division are handled pro bono or by staffers on the indigent defender board.
Since Katrina hit 75% of these staffers (in New Orleans) have been laid off due to lack of city funds; Gov. Blanco stripped $500,000 from the public defender system budget and it was not addressed (i.e., re-funded) during the special session. Since Katrina hit, the state’s Indigent Defender Board that disperses the money to the local boards has not met due to lack of quorum.
During the special session, the legislators passed a law that shields the state department of corrections and the local parish sheriff’s departments from liability for holding a prisoner longer than warranted.
Under current Louisiana law, the number of judges cannot be reduced/increased to match the population shift and the jurisdictions cannot be transferred. More attention to the court system at a legislative level is going to be required.
I understand debraz’s concerns upthread, but we have to be able to stand back and come to the conclusion that government and the law and the courts are three separate things. Each has their own responsibilities and confinements, but none should be considered chiseled in stone or without flexibility.
As to your question regarding the off-site backup of police and/or court electronic records, I just don’t know. Common sense would say that they were, but given the budgetary restrictions on the court system and most municipal and parish law enforcement agencies, I rather doubt that such a system was in place. I’ll have to make some inquiries next week.
rba, thanks for your thoughtful participation in this discussion. I apologize for the delay in responding to your post…I should monitor more closely.