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Dec 3, 2016

If you can’t afford a lawyer

Co-produced with PRX Logo

UPDATE, April 8, 2017: Producers Eve Abrams and Eve Troeh have followed up on this story. An updated version of the original episode can be heard now.

If you can’t afford a lawyer, one will be appointed to you – that’s how it’s supposed to work. But in New Orleans, Chief Public Defender Derwyn Bunton, the lawyer in charge of representing poor people accused of crimes, is saying no. His office doesn’t have enough money or time to do a good job, he says, so he’s refusing some serious cases, which is jamming up the courts and leaving hundreds of people stuck in jail with no lawyer. Bunton’s goal? To break the system in order to fix it.

So far, Bunton has earned the ire of a few judges and skepticism from the city’s district attorney.  The American Civil Liberties Union has sued his office. We go inside the mass shooting case that sent Bunton on this path, and trace the ripple effects of his plan on the lives of the people accused of crimes, left in limbo without legal representation.

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Credits

Support for Reveal is provided by The Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation and Mary and Steven Swig.


TRANSCRIPT:

Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal's radio stories is the audio.

Section 1 of 5          [00:00:00 - 00:10:04] (NOTE: speaker names may be different in each section)
Al Letson: Hey, everybody. This is Al Letson, host of Reveal, and this is the time of year that we come to you and ask for your support. Every week on Reveal, we give you something you can't get anywhere else, investigative reporting with engaging storytelling. We've got a pretty big newsroom here, and every day all the reporters are out trying to find stories that really reveal what is happening behind the scenes.
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Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson. New Orleans is a town where culture takes place in public. Parades, second lines, festivals, just about every week here, folks gather in large groups to listen to music and dance and often follow a band down the street. When people come together like this, it can spark a great time or ...
Speaker 3: Looks like we've got multiple people shot in the park.
Speaker 4: Okay. 10-4. I'm-
Al Letson: That spark can light a wildfire.
Speaker 3: [crosstalk 00:02:35]. Jack. Jack. Jack, come around the corner real quick. Jack. Jack [inaudible 00:02:39] Here. Here. Here. Here. Here. Here.
Al Letson: November of 2015, a few nights before Thanksgiving. It was a Sunday, just after sunset. A few hundred people had gathered in a playground called Bunny Friend Park. There were DJs and music, and a little after 6:00 p.m., people started getting rowdy, then shots rang out.
Speaker 5: It was actually like a war. There is the people falling, machine guns, all type of guns.
Al Letson: This young college student, who also worked full time, had come to Bunny Friend Park with a friend to check out the DJs. She asked us not to use her name because she's afraid someone involved in the crime will come after her. When the shooting started, she tried to run.
Speaker 5: It was fenced off, and it had exits, but they had people standing in exits shooting. It was very, very intense.
Speaker 6: We need to secure this park. Just come-
Speaker 5: I guess it was kind of like a rushing pain. My leg felt very heavy, more than the other leg, so that's what made me look down. I noticed I had puddles of blood.
Speaker 6: We've got a female shot in the back, unknown part of the back.
Al Letson: 17 people were shot. Now, no one was killed, but it shook New Orleans up. The Bunny Friend shooting was all over the news. It was one more reminder of how bad crime is in the city. Independent producer Eve Abrams has been reporting in New Orleans for nine years. She was following the shooting and what happened when the police made their first arrest. That arrest would have huge and unexpected ripple effects that would go way beyond the shooters and the victims. Here's Eve.
Eve Abrams: Five days after the shooting, the New Orleans police identified their first suspect, a 32-year-old man named Joseph Allen, and that same morning, the day after Thanksgiving, private defense attorney Kevin Boshea went into work. I met Boshea at his office outside New Orleans. It was weird. It looked like a motel converted into office suites. We sat down at a big table in the conference room lined with books so he could tell me this whole story.
Can you walk us through the Joseph Allen case from the very-
Kevin Boshea: Sure.
Eve Abrams: ... beginning.
Kevin Boshea: Absolutely. No. No, problem.
Eve Abrams: This is how Boshea sounds almost all the time, like he's in the middle of putting out a fire.
Kevin Boshea: All right, the scoop. Let's see. 2015-
Eve Abrams: He's slight with curly, grey hair and glasses. He's been a lawyer for over three decades.
Kevin Boshea: I have, almost without exception, worked the day after Thanksgiving. The phones don't ring. The clients aren't banging on the doors. It's quiet. It's peaceful. It's beautiful.
Eve Abrams: But this day, Boshea's phone was ringing when he walked in. On the other end of the line was a former client, Joseph Allen. Boshea reenacted the call for me. He got really into it.
Kevin Boshea: "Kev?" "Yeah." "This is Joseph." "Yeah?" "This is Joseph Allen." "Yes, Sir?" Now, I figured this can't be a social call. There's something wrong, but I don't know what it is.
Eve Abrams: Boshea knew Allen. He had represented him before, getting him out of prison and on parole, so Boshea wasn't too happy to hear what Allen said next.
Kevin Boshea: "I'm wanted." "For what, Joe?" "The thing." "What thing?" "The thing." "What thing?" "You know, the Bunny Friend thing." Expletives deleted, "You can't be serious." "Kevin, I'm telling you, I didn't do it. I wasn't there. I didn't do it. I wasn't there." "Where are you?" "Houston." "Get your behind back here right this minute."
Eve Abrams: Boshea had worked really hard to get Allen out on parole before, so the next day, when Allen made it to his office, Boshea was annoyed. "This is how you repay me?"
Kevin Boshea: "You know, being involved in the worst ... You're charged with 17 counts of attempted second-degree murder. Holy guacamole. Come on," and he says, "But, Kevin, I've got proof. I've got proof." He starts showing me receipts.
Eve Abrams: From Walgreens, Walmart, the Burlington Coat Factory, all from stores in Houston from the same day as the shooting. Allen told Boshea he was shopping with his pregnant wife. The problem was he paid for everything in cash. None of the receipts had his name on them. Boshea knew the prosecutors would say Allen's receipts proved nothing.
Kevin Boshea: "Well, where's the video?" they will ask. I sat back, and I turned to Joseph and said, "Joseph, this is good, but it's not good enough."
Eve Abrams: Boshea was on the case, but in the meantime, he had to bring Allen to the police station, where he was booked. The next morning, Boshea gets on the phone with a private investigator in Texas. He's racing against the clock. He needs to get his hands on security camera footage, something that will prove his client was in Houston and not in New Orleans at the time of the shooting. He knows stores record over their videos on the regular, so Boshea tells his detective ...
Kevin Boshea: Failure is not an option here. We've got to have it. "Well, I'm having this problem." I don't want to hear it. We had to have it, and we had to get it quickly.
Eve Abrams: And they got it.
Kevin Boshea: It would have been December 7th at 8 o'clock in the evening. We've got the video.
Eve Abrams: Security camera footage from multiple stores in Houston. Joseph Allen had been arrested based on the word of a single eyewitness. Now Boshea had proof that Allen couldn't possibly be one of the Bunny Friend shooters, a legal ace in the hole.
Kevin Boshea: Now I'm not relying on a guy who's got a record or his wife who's going to, quote, according to the DA, lie and say whatever needs to be said, or paper receipts that don't show a credit card that they will argue are fabrications. Now I've got it here.
Eve Abrams: Boshea shows up at court the next day for Allen's hearing. He's ready to go. He's got his video. He figures the DA will charge Allen, and it's a pretty informed hunch because Boshea used to work for the district attorney's office.
Kevin Boshea: This administration, basically they charge everything. We know that.
Eve Abrams: The DA is aggressive. He accepts almost every case the police bring his office, around 90% of the cases. What happened next was surprising. The assistant district attorney prosecuting the case stood up and said, "At this time, the State dismisses all charges against Joseph Allen."
Kevin Boshea: Kaboom, and that was it.
Eve Abrams: But Boshea didn't quite trust that the DA was done with Allen.
Kevin Boshea: We tried the case on the streets of the city. We wanted the public to see with their own eyes what we had seen with our own eyes.
Eve Abrams: Boshea set up a TV on the courthouse steps, and the news cameras followed. Here's New Orleans WDSU News.
Speaker 9: Right now, we're actually looking at video of Joseph Allen and his wife, Valencia, when they were in Houston, Texas on the day of that shooting. Surveillance video shows they were shopping. They started-
Eve Abrams: Joseph Allen's mother, who'd been on TV before defending her son, took the mic.
Deborah Allen: I am so thankful to the DA for dropping these charges. When I told ya'll that my son wasn't-
Section 1 of 5          [00:00:00 - 00:10:04]
Section 2 of 5          [00:10:00 - 00:20:04] (NOTE: speaker names may be different in each section)
Deborah Allen: So you're dropping these charges. Then when I told y'all that my son wasn't there, then the people thought I was lying just trying to protect him. He was not there.
Al Letson: It was a huge relief for Joseph Allen and his family. But that whole saga of Allen, his lawyer Boshea and the video footage, all of that was the last straw for someone else. A guy named Derwyn Bunton. He's the man responsible for defending everyone in New Orleans who's too poor to afford a lawyer. When Derwyn saw Joseph Allen go free, it made him rethink his job and his role in the justice system. He knew he had to do something big. Eve Troeh of WWNO is New Orleans, that's right, we have two Eve's on this episode, takes the story from here.
Eve Troeh: That video footage of Joseph Allen, played on the courthouse steps, was all over the news. Derwyn Bunton couldn't help but watch.
Derwyn Bunton: I am the Chief Public Defender for Orleans Parish.
Eve Troeh: In Louisiana, a Parish is what we call a county basically.
How long have you had this job?
Derwyn Bunton: I have had this job now for seven years.
Eve Troeh: Feels like how many years?
Derwyn Bunton: I joke with my friends, it's like dog years.
Eve Troeh: Derwyn leads a team of 50 or so lawyers who defend poor people. In New Orleans pretty much everyone arrested is poor. The office had 20,000 cases last year. For a guy with so much responsibility, Derwyn, tall, calm, always in a suit, has an easy laugh too. Like when I ask if I can watch a case in court, he points to my microphone.
Derwyn Bunton: They're not going to let you bring that in.
Eve Troeh: I understand. I have no allusions about that, it has been made very clear that there is no recording in any Louisiana courtroom.
No recording in court. Which makes this whole story more difficult to tell you because we're about to dive into the world of Louisiana's court system. What you won't hear is the courtroom drama where Public Defender's face off against District Attorney's, the Prosecution.
Public defenders are there to uphold the sixth amendment. That whole, you have a right to an attorney. If you cannot afford an attorney, one will be provided for you. Derwyn says that's been hard to do for his thousands of clients because the budget kept getting cut.
Derwyn Bunton: 2011, 2012, 2013, 2014, I'm like, okay, this is a trend.
Eve Troeh: He's had to fire lawyers. That means everyone left gets more cases. Often, they barely get to meet with clients, much less hire private investigators to chase evidence.
Derwyn Bunton: You're not serving your clients your best when you are handling cases twice over the national standard.
Eve Troeh: Here's how the mass shooting at Bunny Friend park fits in. When Derwyn watched Joseph Allen, the man accused, go free, he thought, what if that man didn't hire a private attorney? If he hadn't called Kevin Boshea? If he couldn't afford to pay a lawyer? Derwyn's office would have defended the case.
Derwyn Bunton: I looked at that case as it played out. At the end of that case I thought to myself, I'm not sure we would've made it to Houston on time. I'm not sure we would've made it to that footage before it was discarded or overwritten or erased as a lot of that footage is nowadays. Even though it's out there it doesn't remain forever. If you move slow then you're going to miss this very important evidence.
Eve Troeh: Derwyn says it would've been hard, maybe impossible for him or his Public Defenders to move as fast as private defense lawyer Kevin Boshea. Derwyn thought, if he had to defend Joseph Allen and didn't get that tape ...
Derwyn Bunton: That man would've been on trial for what would have been effectively his life, based on the alibi of his mom and the mother of his child. Which would have immediately been discredited by the District Attorney as folks who love him, of course they're saying he wasn't there. He actually wasn't there.
Eve Troeh: This innocent man easily could've gone to jail for decades. It shook Derwyn. This was January 2016. Derwyn called an all-staff and made an announcement.
Derwyn Bunton: I told my leadership team, I told my staff, we're not going to be complicit in that. That's when we made the decision, we're going to start refusing cases. Not just a wait list but we're going to say no. These are not our cases.
Eve Troeh: He began to refuse cases. Some cases that needed lots of time and attention, ones with high stakes.
Derwyn Bunton: The armed robberies, the rapes, the murders, a lot of the sex offenses.
Eve Troeh: If his office doesn't have the time or resources to do it right, they won't take a case. Especially those really serious cases, what they call level five.
Derwyn Bunton: Say for example a murder comes in, that would be what we call a level five case and we'd have to give that to a level five lawyer. If we don't have a level five lawyer with room on their case load, we'll refuse that case.
Eve Troeh: Since January, his office has refused hundreds of cases. To be sure they can defend the clients they do have. Better to make people wait than risk someone innocent going to jail. But refusing some cases is not the same as a strike. Derwyn wants to be clear.
Derwyn Bunton: I'm like, a strike is when you're not doing work you can do, to prove a point. This is work we cannot constitutionally, ethically and professionally do, this is not a strike.
Al Letson: When Derwyn's office started refusing cases, there were consequences. For one, hundreds of people accused of serious crimes were left in limbo, with no legal representation. Which got the attention of the American Civil Liberties Union.
ACLU: We started hearing that there were people who were going to be sitting in jail, without the lawyers that they have the constitutional right to have. From our standpoint, it doesn't matter why they're not getting lawyers. They're. Not. Getting. Lawyers.
Al Letson: Derwyn's office gets sued and other ripple effects. That's coming up on Reveal.
From The Center For Investigative Reporting and PRX this is Reveal. I'm Al Letson. We just met Derwyn Bunton. He's the Chief Public Defender in New Orleans. His office is there to defend anyone who can't afford a lawyer. In New Orleans that's almost everybody. 85% of all criminal cases. The thing is Derwyn's funding has been cut every year for the past five years. At the end of 2015 he realized he couldn't do the job. His office just didn't have enough lawyers to defend the people that needed them. He took action. Derwyn started refusing some cases, leaving hundreds of people accused of crimes just stuck. Some of them were waiting in jail for months.
Derwyn Bunton: That's really the low point for me in this, is knowing that there's people on the other end of this, there's families on the other end of this, looking for access to justice. I'm not able to provide everybody with access to justice. I know what that means.
Al Letson: It means some people facing serious charges are left in limbo with no legal counsel. Eve Troeh of WWNO found a guy like that.
Eve Troeh: It was January when Derwyn stared refusing cases. That same month this man you're about to meet was involved in a situation with a woman who called the cops. He was arrested on charges of attempted second degree rape and simple battery. He went to jail. The arrest upended his life.
John: I ended up actually losing my job that I had been on for almost a year. It was retail and that was actually in management.
Eve Troeh: His retail management job counted him as a no-show. He hasn't been able to get steady work since. We're not using his real name because he's afraid his arrest record might keep him from getting a new job. We'll call him John. In jail he also worried about his mom.
John: My mother suffers from dementia. I was her sole provider. It was very stressful just wondering if or what would happen to my mom not taking her medication.
Eve Troeh: John didn't even know if anyone else in his family actually knew he was in jail. No Public Defender came to see John, no one talked to him about his case or helped contact family or his boss. The first time he talked to a lawyer was when he was brought to court for what's called first appearances. There's a tiny booth in the courtroom where he spoke briefly with a Public Defender behind a plastic window.
John: It maybe was like a five minute at the most, conversation.
Eve Troeh: Remember there's no recording in court but here's what first appearances look like. A group of inmates, almost always all black men, stand in orange prison jumpsuits, shackled. The judge asks them each to stand and say out loud what they do for a living, how much they make, who they take care of at home. The inmates mostly seem confused about why the judge is asking these very personal questions. It's uncomfortable. What the judge is doing is deciding whether they're too poor to afford a lawyer and can get a Public Defender. John remembers his judge urging another guy to avoid the Public Defenders.
John: A guy was in there for some more serious accusations. The guy said that he wasn't able to afford a lawyer. The judge adamantly said, "You have to get you a lawyer in this case." From just hearing that, I-
Section 2 of 5          [00:10:00 - 00:20:04]
Section 3 of 5          [00:20:00 - 00:30:04] (NOTE: speaker names may be different in each section)
John: In this case, from this here or that, I knew that there were [public 00:20:05] [defender 00:20:07]. I wouldn't have anyone working mainly to spend the time on my case, like someone to spend on it.
Narrator: John spent about a week in jail before his family scarped together 4,000 dollars to pay a bail bondsman. Once he got out, John lost his spot with the public defenders. He didn't know this, but he was on the wait list. People stuck waiting in jail were ahead of him, so he just waited for his court date without a lawyer.
John: I did try to contact a few lawyers to represent me, and they ranged basically around 10,000 dollars that I didn't have.
Narrator: 10,000 just to get started.
John: Right, just to get started. Right.
Narrator: John didn't know what to expect in court. Should he wear his Sunday best? Would he even get to go home that day or would the court decide to detain him and send him right back to jail?
John: I just had to basically go on faith.
Narrator: Nothing happened. The judge said, "Come back in thirty days." John did. Then the judge said, "Come back if you get something in the mail." Then more nothing. When I called John, he hadn't heard anything in eight months.
John: Even to this day I didn't know where the case was, so really I'm [inaudible 00:21:23] in not wanting any police to actually in avoiding any type of confrontation, just in regular interaction with people.
Narrator: The state had dropped the more serious attempted rape charge. That was months ago in June. How did you find out that the charges were dropped?
John: Actually, you confirmed that the charges were dropped.
Narrator: So, no one ever told you what happened. You just never heard back. You never got a letter in the mail saying the charges were accepted, but you also never got anything saying that they were dropped.
John: Nothing. Nothing.
Narrator: No one had told John. The battery charge seems to have been kicked down to municipal court. John asked me what that meant. Was he cleared? I didn't know. I'm not a lawyer. All I had was an email saying the felony charge was dropped.
John: Are you able to send me a copy of that?
Narrator: Yeah, sure.
John: What information you have on me, I appreciate that. I appreciate it.
Narrator: Just as John didn't know what was going on with his case, the public defender's office didn't know either. Because they'd refused the case, no one was tracking it. We told [Derwyn 00:22:37] [Button 00:22:37] what his decision did to John's life.
Judge: What should have happened is he would've been assigned a lawyer very early on, and then looking into his case to perhaps get the charges dismissed or refused faster and, of course, to keep him apprised of the status of his case at every change and more information for not just him, but for his family as well.
Narrator: This is the standard [Derwyn 00:23:05] wants to meet, but he says he just can't. No time, not enough lawyers, hence the slow-down. Yeah, that means some people wait longer or get no help at all.
Judge: There's more and more of those families being touched by this, and I think that's tragic. It's really hurtful for me and the rest of my staff.
Narrator: But this heavy conscious doesn't help the people waiting. When Louisiana's American Civil Liberties Union learned about the public defender's wait list, ACLU lawyer Marjorie [Esman 00:23:39] said, "Not okay."
Marjorie: We started hearing that there were people who were going to be sitting in jail without the lawyers that they have the constitutional right to have.
Narrator: Right after the wait list started, [Esman 00:23:52] filed a lawsuit in federal court, on behalf of several men whose cases got refused.
Marjorie: From our standpoint, it doesn't matter why they're not getting lawyers. They're not getting lawyers. What people don't always realize is that because of the Sixth Amendment Constitutional Right to Council, if we can't defend, we also can't prosecute because anybody who says, "I want a lawyer," has the right to have a lawyer. That means they can't be prosecuted. The back log in the courts is going to be massive.
Narrator: [Derwyn 00:24:26] knows that and he actually welcomes this lawsuit because it could draw attention to what he sees as a deeply unfair system.
Judge: Poor people justice as the same as rich people justice, and what I do hear a lot from some stakeholders and decision makers is I'm fighting for a Cadillac system and poor people don't deserve a Cadillac criminal justice system, don't deserve a Cadillac defense. All the people who say that have yet to define for me what that means. I don't know what I'm asking for. That's extra.
Narrator: [Derwyn's 00:25:03] not jamming the gears so he'll be able to offer a Cadillac defense, he says. He's doing it to keep us off his running to avoid a total breakdown of justice. All over the country public defenders are over-burdened, and there's no place worse than Louisiana, lots of parishes here are in crisis. They have too many cases and not enough time, yet the stakes are really high. Will Snowden is one of [Derwyn's 00:25:40] public defenders in New Orleans. He's tall, slender with a neatly trimmed beard. He works two blocks away from the courthouse in a dingy, florescent lit office building.
Will: The wait list has been fortunate for me, but terrible for my clients, or potential clients, because they've been sitting in jail without a lawyer.
Narrator: The professional standard is lawyers shouldn't take more than 150 felony cases a year. Before [Derwyn's 00:26:06] slowdown, Will had 255 felonies in 2015. That would give him about one business day to put together a defense for murder, rape, or armed robbery. One business day.
Will: I used to have nightmares about my clients going to prison because I failed to do something.
Narrator: He's talking literal nightmares.
Will: Like waking up in the middle of the night, like, "Did I file this motion for this client," or, "Did I do this?" The person that's facing 20 years to life for a nickel bag of weed, and they're for trial. What am I going to do? How is this possible? What is going on? What can I do to stop it? You try to go back to sleep. You end up closing your eyes and sitting there, but you're mind is just racing and you're thinking, "Well, did I do this? Did I do that?" Then you get mad at yourself for not doing certain things.
Narrator: Will and a lot of public defenders here are driven by a mission. Their office is like the Peace Corp for lawyers.
Will: We simply are locking up too many black people, and that's one of the reasons why I came to New Orleans to be a public defender.
Narrator: On Will's office walls there are pictures of him with former clients, and in the corner is a clothing rack full of suits for his clients to wear to court so they're not in orange jumpsuits. Will has been doing this three years. He says he used to be in the office seven days a week just trying to get through his cases. Things are better under the wait list, but he's troubled by all the people waiting.
Will: Right. If we're here to accept these cases and to represent these people, and procedurally we're not allowed to do that, it just questions your existence as a public defender. The emotional experience is shame.
Narrator: This is not the goal of the slowdown. What [Derwyn 00:27:50] ultimately wants is reasonable case loads for his lawyers, like Will, and to be able to defend everyone who needs their help. For that he needs not just more money. He would actually need the entire system for how his office gets its money to change. Derwyn says, "That's because the bulk of the funding for public defense in Louisiana comes from a really weird source. It's traffic tickets."
Judge: Rolling through a stop sign, speeding in a school zone, all those sort of moving violations there is a public defender fee attached when you pay that ticket.
Narrator: Run a red light and part of that money you owe goes to pay a lawyer for, say, someone accused of armed robbery. It's odd and unstable. You never know how many traffic tickets will get written each month. I asked [Derwyn 00:28:39], "So, why traffic tickets?" He didn't know. Lots of people I asked didn't know. We found a long time Louisiana lawyer, Walt Sanchez. Who knows? Over the phone he explained the Louisiana legislature came up with this in the 70s.
Walt: The funding scheme was simple the path of least resistance. There wasn't any real in depth thought put into how do we come up with a stream of income that actually meets the needs of the given parish?
Narrator: It was a punt, a way to fund an unpopular issue, lawyers for accused criminals. That funding was left to traffic patterns.
Walt: If you had a parish that had a stretch of interstate through it, you generally had a pretty reasonable level of funding or a consistent stream of funding.
Narrator: Because a major highway means more traffic tickets. No interstate, your poor people don't get as strong a defense if they get arrested. So uneven. Now, some other states also use traffic ticket money to help pay for public defense, kind of an extra slush fund, but Louisiana uses traffic tickets as the main funding source. "That causes chaos," says James Dickson. He runs Louisiana State Public Defender Board in Baton Rouge. He points to this year's devastating floods as a perfect example, and emergency shelter was set up right by his office when we talked. Any district that flooded this year is in for big problems.
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Section 4 of 5          [00:30:00 - 00:40:04] (NOTE: speaker names may be different in each section)
Speaker 1: Any district that flooded this year is in for big problems funding public defense.
Derwyn Bunton: You have districts that rely primarily on traffic tickets for their funding. Flooding takes that out of the equation. No sheriff in his right mind or her right mind is going to emphasize traffic tickets during a disaster. No citizen would expect them to, and I certainly don't, so traffic tickets are going to plummet in every single one of those districts.
Speaker 1: Baton Rouge police write fewer traffic tickets because they're busy with more serious issues right after the flood and all of a sudden the public defender sees a drop in money. Can't afford to pay an expert witness, can't hire a private investigator, can't work up as strong a case for a client. Here's another problem. When Louisiana created this system, it also created a public defender fee. Derwyn Bunton hates that.
Derwyn Bunton: If you're deemed eligible for the public defenders office, the first thing is, you owe me $40. There's an application fee.
Speaker 3: We just saw a guy in the lobby trying to pay that.
Derwyn Bunton: $40. Once we have your case and we carry it through resolution, if you're found guilty or you plead guilty, then you owe us another $45. That's the public defender fee.
Speaker 1: If you're guilty, you pay $45 for your order. If you walk free...
Derwyn Bunton: You owe nothing. If you pay attention to that, folks quickly realize we get paid to lose, because if we get your case dismissed or you're acquitted, the officer sees nothing. If you're found guilty or plead guilty, we receive another $45.
Speaker 1: Public defenders have told me they get clients who look them in the eye and say, "You're paid to lose." James Dickson says that's awful.
James Dickson: That is a horrible optic. I can tell you, public defenders, it does not effect how they work at all, but the problem is, there is a grain of truth behind it, and that makes it very difficult to deal with a client. When a defender has trouble communicating with his client, everybody suffers, and I mean everybody. It undercuts the court, it undercuts the credibility of the court because they're seen as just being a part of a process. It is just a horrible, horrible way to fund a public defense system.
Speaker 1: Public defenders in Louisiana want a baseline of stable, guaranteed funding. No more of this user pay system where guilty verdicts get them more money, and their ability to do their jobs well depends on how many people get caught speeding. Derwyn's slow down in New Orleans is causing problems getting attention, but in a state with a looming $1.7 billion budget gap where even schools and hospitals are on the chopping block, getting extra millions to defend people accused of crimes seems a long shot.
Al Letson: In Louisiana, public defenders are not funded nearly as well as the police, the courts, and district attorneys. That means when public defenders show up in court, they're always the under dogs. Coming up next, the prosecution weighs in.
Leon Cannizzaro: If the shoe was reversed, I can't see myself saying to the citizens of the city of New Orleans, "Listen, we're not going to be able to prosecute the case that a victim brings to us, or some police officer brings to us because we just don't think we have the funding to effectively prosecute the case." In all fairness, I can't let budget constraints effect my ability to operate this office.
Al Letson: You're listening to Reveal.
Speaker 7: Hey folks, Cole Goins here from Reveal. If you're in the Bay Area, we have a special event coming up on Thursday, December 15th. To celebrate the second year of a class we teach with the California College of the Arts, we're hosting a night of animated documentary short films at the New Parkway Theater in Oakland. We'll feature original animations from students in our class, along with a variety of excellent documentary shorts from around the world. The best part, tickets are free. You just need to RSVP and reserve your seat. To do that, visit our website: RevealNews.org/events. That's RevealNews.org/events.
Al Letson: From the center for investigative reporting and PRX, this is Reveal. I'm Al Letson. We've been telling the story of New Orleans chief public defender, Derwyn Bunton. After a mass shooting in New Orleans in 2015, the Bunny Friend Park shooting, Derwyn realized something big: 17 people were shot that night. The wrong man was accused, but his private lawyer found evidence that freed him. Derwyn realized his office might not have been able to prove that mans innocence. They were simply too overloaded, so Derwyn made moves to lighten their load. His office started refusing cases, backing the court up, and leaving some clients waiting in jail. We're going to pick up the story with the prosecutor, not just of the Bunny Friend case, but of every case in Orleans Parish. Here's independent producer Eve Abrams.
Speaker 1: New Orleans district attorney, Leon Cannizzaro looks straight out of central casting from Law and Order; crisp white shirt, tie, neat and tucked. Also, very old school. He answered many of my questions like this:
Leon Cannizzaro: Yes mam, I do. I have no objection. Certainly, I want them to have the necessary funding that...
Speaker 1: Cannizzaro has been watching from the other side of the courtroom ever since Derwyn Bunton started refusing cases. Remember, Derwyn's argument is that the public defenders don't get enough money to provide all their clients with a constitutional defense, but Cannizzaro's not buying it.
Leon Cannizzaro: Well, I disagree with that. I think that they ... They certainly have been extremely effective in that courtroom, and I know because we have to do battle with them on a daily basis.
Speaker 1: No matter how effective Derwyn's attorneys are, their budget is way smaller than the DA's. Last year around 6 million to the DA's 12 million. That's not exactly apples to apples though. The DA's office does a lot more stuff than just argue court cases. Cannizzaro says he needs more money too. In fact, his budget for next year was just cut.
Leon Cannizzaro: In the criminal justice system, especially in the city of New Orleans, all of the participants in the criminal justice system are woefully underfunded.
Speaker 1: Which is true, but it's especially bad for the public defenders. In order to do public defense right, Derwyn told me he needs to double his funding.
If you've ever been to a courthouse, you've probably seen a statue of Lady Justice. She's that Greek goddess looking woman, the one blindfolded and holding a scale. She's meant to symbolize the balance in our judicial system; the truth that emerges when opposing sides are equally matched. If Cannizzaro's funding was ever as unstable as Derwyn's, would he do what Derwyn did? Would he ever refuse to prosecute cases?
Do you have to think about, "Oh, is there space in the budget?" Or is that not something that you really think about?
Leon Cannizzaro: If the shoe was reversed, I can't see myself saying to the citizens of the city of New Orleans, "Listen, we're not going to be able to prosecute the case that a victim brings to us, or some police officer brings to us because we just don't think we have the funding to effectively prosecute the case." In all fairness, I cannot let budget constraints effect my ability to operate this office.
Speaker 1: In the case of the Bunny Friend shooting, he didn't. When it came to investigating their first suspect, the guy we heard about earlier, the DA didn't let budget constraints get in the way. Cannizzaro used his resources, his investigators. Remember that security camera footage? Well, the DA's investigators found that too. It proved the suspect was in another city at the time of the shooting, and that's why, the DA says, they never pressed charges.
In the weeks that followed, the district attorney went on the charge ten other people in the shooting. Four of those people got their lawyers through the Public Defenders Office.
It's late summer, and I'm in Will Snowden's office, the public defender who had nightmares about his caseload. He's now representing one of the Bunny Friend defendants, Malik Johnson, who faces eight charges, firing a gun among others. The police arrested Malik because another defendant said Malik was at Bunny Friend the night of the shooting, and identified Malik from a photo lineup. Malik's a little hard to reach because he's not in the New Orleans jail. He's in a jail in the northeastern corner of the state, next to Arkansas.
Speaker 9: Hello, this is Sheila, how can I help you?
Will Snowden: Hi Sheila, my name is William Snowden from the Orleans Public Defenders office. I had schedule-
Section 4 of 5          [00:30:00 - 00:40:04]
Section 5 of 5          [00:40:00 - 00:54:32] (NOTE: speaker names may be different in each section)
William Snowden: My name is William Snowden from the Orleans Public Defender's Office. I had scheduled a phone, attorney-client phone visitation today with my client, Malik Johnson, at 2:00 p.m.
Female: Mercy, I didn't even get that. Where'd you fax it to?
William Snowden: I faxed it yesterday to 318-559 ...
Narrator: Malik was moved from New Orleans because of issues with the city jail, which has been under a federal consent decree since 2013. Meaning, there were so many problems in the jail, poor mental health care, inmate violence, and inmate deaths that the Department of Justice stepped in. Will says still, all the time, his clients tell him how violent the jail is and about all the weapons.
William Snowden: Shanks and shivs and knives and the terror is very, very real. It's very palpable. I have clients who say, "Listen, we may get one hour outside of our cell, but I just shower and do what I need to do and go back because it's more safe in my cell."
Narrator: To reduce the number of people behind bars, a brand new much smaller jail opened in the Fall of 2015. The sheriff claims it's too small, so he's moved hundreds of people, like Malik, who are awaiting trial in Orleans Parish to jails in other parts of the state.
Automated: Thank you for calling the River Bend Detention Center. For English, press one. Gracias.
Narrator: Hundreds of defendants are now being held hours and hours away from their families and their attorneys. Several of Will's clients are four and a half hours away in East Carroll Parish, which means Will can't see them.
William Snowden: I'm not going to drive to East Carroll Parish. I have a 2001 Mercury Sable and I need to change the brakes on it. I'm just not going to do that drive.
Narrator: He can't. Will has to be in court in New Orleans every weekday. Visiting just one client in East Carroll Parish would take around nine hours round-trip just for driving. To get to know those clients, Will has to call them on the phone, but that brings up a whole other problem. Will isn't sure who else is listening.
William Snowden: Because the prompt that happens in the beginning is that the call is going to be recorded and that prompt happens maybe every five minutes. You'll get a reminder in the middle of the conversation that the call is being recorded.
Narrator: Will's talking about the New Orleans Jail here. The person he's worried might be listening is the DA.
William Snowden: They have pretty much unfettered access to those jail calls and they listen to them to see if they can find anything that's useful.
Narrator: The calls to his clients in East Carroll Parish aren't supposed to be recorded, but Will doesn't trust that no one's listening. Still, in order to speak with Malik, it's the only option. After four phone calls and two different kinds of hold music ...
Female: Hold on just a minute.
William Snowden: Thank you.
Narrator: ... Will finally gets through to his client.
Malik: Hello?
William Snowden: Hi. Malik?
Malik: Yeah.
William Snowden: Hi. This is your lawyer, William Snowden. I'm good. How are you?
Narrator: Malik was 17 when he was arrested. He's 18 now. He's been in jail for over 10 months waiting for his trial, 10 months.
Malik: I'm just ready to go home to my family.
Narrator: Will says when you have a client as young as Malik, even though he's legally considered an adult, he's still very much a kid. Will got in touch with his mom and he went back to [Bunnyfront 00:43:22] Park to gather evidence for Malik's defense.
William Snowden: This is a picture of the basketball court. It's a picture of the bathrooms, scoreboard, so that I can get a general understanding when a detective is testifying, I know what he's talking about. If he's saying that this witness saw this particular individual at this location, I'm going to be able to say if that's possible or not.
Narrator: Will says preparing for a case is an infinite task. There's always more to do, motions to file, case laws to brush up on, detectives to subpoena, school records to look at, and endless people to interview. I asked Malik how he feels about his lawyer.
Malik: He about his business.
Narrator: He's about his business?
Malik: Mm-hmm (affirmative).
Narrator: What does that mean?
Malik: That means he focused on your case and he going to get it right. He focused on everything he do.
Narrator: Malik used to think public defenders worked with the prosecutors. They didn't care about defending clients like him. Now having Will represent him, Malik's entire picture of public defenders has changed.
Malik: Oh, they'll help you [inaudible 00:44:27] like they're a regular paid lawyer.
Narrator: They're a regular paid lawyer, is that what you said?
Malik: Mm-hmm (affirmative).
Narrator: Like a lawyer you would hire, not get for free. This is how the public defense system is supposed to work, with public defenders who have the time to do just as good a job as private attorneys. It's what Derwyn's Slowdown is all about, providing clients with a solid defense, no matter how much it gums up the works. In a lot of places, that's not what happens, according to [Il Hama Oskia 00:44:55]. She's the executive director of Gideon's Promise, a national organization that supports public defenders out of Atlanta, Georgia.
Female: What we have found across the country is that although people go into the work to help people, they quickly are burned out or tired or are so under-resourced that they leave the job or fall victim to processing people through the system and not effectively advocating for their clients.
Narrator: Processing people through the system. In other words, keeping the system going, barely meeting with clients, resolving their cases as quickly as possible and then moving on to the next. Most public defenders can't escape this pressure to keep things moving.
Female: What happens is clients get arrested. They may sit in jail, trying to make bond, and many of our clients cannot, and they want to go home. A person could be not guilty of the crime they're accused, but knowing that they will sit and languish in jail, possibly losing their job, losing the rights to their children, losing subsidized housing if they stay any longer. What often happens is that they take pleas.
Narrator: Plea deals. Even if they're innocent, they plead guilty and, in exchange, get a lighter sentence or avoid jail entirely. Nationally, around 95% of criminal convictions come from plea deals. Just last month, the District Attorney's Office offered a one-time plea deal to several defendants in the Bunnyfront case, including Malik.
Here's the deal the DA offered, "Plead guilty to unlawfully discharging a firearm and the other seven charges against you will be dismissed." It was an intense decision. Malik was able to sit in the courtroom with his family to discuss it. The other nine defendants were sitting there too with their lawyers. At one point, people started yelling at each other. Malik's family was worried that other defendants would start pointing the finger at Malik in order to get better deals for themselves.
Will wanted to fight for his client. He had a plan for how to defend Malik at trial, but that would be risky. If they lost, Will says Malik could end up in prison for anywhere between 10 and 47 years. With a plea deal, Malik would know exactly how many years he would serve. Will says the whole family was torn up about it. Malik was crying. His mom was crying. His brothers and sisters were crying. Malik did not want to take the plea, but his mom begged him to. In the end, he took it. His sentence is 10 years with credit for time already served. In the best possible situation, he'll be out in six and a half years. He'll be 24.
I asked one of the victims of the shooting, the college student we heard from at the beginning of the story if she kept up with the case at all. She said, "No."
Female: I just let it go all the way. I said I'm fine. I recovered. I just moved on. I don't want any parts of it. I just let it go.
Narrator: Does it matter to you if they find the right people and they go to jail?
Female: No, it don't matter because there are still people out here killing and going to continue doing that. You taking away four, five people and the rest of the city is still bad people, it really don't even matter.
Narrator: In her mind, locking people up doesn't change how violent New Orleans is nor does it help her have more faith in the system. Chief Public Defender Derwyn Bunton says he hears this all the time.
Derwyn Bunton: When I talk to families of clients over the years, they use words like railroaded, racist, unfair, unjust. It's that idea that they're simply not going to get a fair shake.
Narrator: Derwyn says that's all he wants, a fair shake for his clients. The Slowdown was his last resort, a choice that took him seven years to make after trying everything else. Overloading his staff, arguing for different funding, and watching year after year as his budget kept getting smaller and smaller.
Narrator: How does it weigh on you knowing that there's all these people now who are without a public defender because they're on a waitlist?
Derwyn Bunton: Well, it terrible and terrifying. It's one of those things that weighs on me and my staff every day. We think about and keep track of every day folks on the waitlist.
Narrator: How long are you going to hold out? A year? Two years?
Derwyn Bunton: I think we're basically going to move forward constitutionally, ethically, and professionally. We're going to stay inside those boundaries. We are simply not going to play this role of blessing an unjust system.
Narrator: For the foreseeable future, Derwyn is going to continue refusing cases until something really changes. He knows he's putting pressures on the courts and the legislature, and worst of all, poor people waiting in jail without attorneys. Derwyn is forcing the issue. He's forcing people to look at what it would truly cost to properly defend all the people we arrest. Louisiana locks up more of its citizens per capita than any other place in the world. Defending all those people properly, according to the constitution, is expensive. Right now, most people don't see those costs. Right now, the rubber hits the road in courts and jails, places most people avoid given the option.
Derwyn is going to keep loudly pointing at the price tag. Maybe that's the best way to get everyone's attention, to provide them with a healthy amount of sticker shock.
Al Letson: As we were wrapping up this recording, the City of New Orleans gave the public defenders a little bit more money for next year's budget. It will help them replace some of the 37 staff members let go since last year, including experienced attorneys, but it's just a one-time boost. Meanwhile, that ACLU lawsuit against Derwyn's office is still dragging on. A federal judge won't rule on it for months. When that ruling comes down, it will only say whether it's illegal for Louisiana inmates to sit in jail without a lawyer. It won't solve the public defender budget crisis. However it turns out, the lawsuit will keep the spotlight on public defense and maybe illuminate a path to fully funding it some day.
As a reminder to support our work, go to revealnews.org/donate or text DONATE to 63735. We get by with a little help from our friends, so come on, be our friend. Thanks to independent producer Eve Abrams and Eve [Troeh 00:52:44] of WWNO in New Orleans for this episode. Heads up, Eve Abrams also has her own podcast on criminal justice in New Orleans. It's called "Unprisoned." You have to check it out. I will definitely be tuning in. Speaking of great podcasts, I should also tell you about "Offshore." It's a new podcast from PRX in Honolulu's Civil Beat. It's amazing. What I love about both of these podcasts is it really gives you an understanding of that place. In "Unprisoned," it's New Orleans and in "Offshore," it's the Hawaiian Islands. Two vastly different places, but when you dig deep, it really asks the question of what it means to be an American today. Check it out, "Unprisoned" and "Offshore."
Our show was edited by [Laura Starecheski 00:53:28]. Special thanks to [Kira Azord, Nandi Campbell, and John Adcock 00:53:31]. We also wanted to thank WHYY in Philadelphia for production support for this week's show. Our sound design team is the Wonder Twins, my man J-Breezy, Mr. Jim Briggs, and Claire "C-Note" Mullen. They had help this week from Peter [Conheim 00:53:45] and Vanessa Lowe, our head of studios, [Christa Scharfenburg 00:53:48], Amy Pyles, our editor-in-chief, Susanne Reber as our executive editor. Our executive producer is Kevin Sullivan. Our theme music is by [inaudible 00:53:56]. Support for reveals provided by the Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the John S. and James L. Knight Foundation, and the Ethics and Excellence in Journalism Foundation. Reveal’s a co-production of the Center For Investigative Reporting and PRX. I'm Al Letson, and remember, there is always more to the story.
Section 5 of 5          [00:40:00 - 00:54:32]

Transcript

Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal's radio stories is the audio.

 

  Section 1 of 5          [00:00:00 - 00:10:04]
(NOTE: speaker names may be different in each section)

 

Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson.

 

Will Snowden: I used to have nightmares about my clients going to prison because I failed to do something.

 

Al Letson: Will Snowden is a public defender in New Orleans.

 

Will Snowden: Yeah, like waking up in the middle of the night like, "Oh, did I file this motion for this client or did I do this," and your mind is just racing.

 

Al Letson: Will took on 255 felony cases in 2015. That's 100 cases more than he's recommended to take, so Will's boss, Derwin Bunton, came up with a solution.

 

[00:00:30]

Derwin Bunton:

 

We're going to say, "No, these are not our cases."

 

Al Letson: Even the most serious offenses.

 

Derwin Bunton: The armed robberies, the rapes, the murders, a lot of the sex offenses ...

 

Al Letson: Derwin's decision has left hundreds of people without a lawyer, sitting in jail, waiting for their turn. But this was all a part of a plan: To break the system in order to fix it. That's coming up on this episode of Reveal.

 

[00:01:00]

Speaker 4:

 

Support for Reveal comes form the Salt Institute for Documentary Studies at Maine College of Art, now offering a graduate certificate in documentary studies. This in-depth 15 week experience is for motivated students who are interested in pursuing the world of documentary storytelling. Students choose from four tracks of study: Radio, photography, short documentary film, and writing. Professional storytellers are in high demand, and Salt will prepare you with the skills, ideas, and confidence needed to work in the field. To learn more and apply, visit meca.edu/salt. Mention the code PRX and have your application fee waived.

 

[00:01:30]

Al Letson:

 

From the center for investigative reporting and PRX, this is Reveal. I'm Al Letson.

 

New Orleans is a town where culture takes place in public. Parades, second lines, festivals, just about every week here. Folks gather in large groups to listen to music, and dance, and often follow a band down the street. When people come together like this, it can spark a great time, or ...

 

[00:02:00]

male officer:

 

Looks like we've got multiple people shot in the park.

 

female officer: Okay, [inaudible 00:02:10], I'm [crosstalk 00:02:11]

 

Al Letson: That spark can light a wildfire.

 

male officer: [inaudible 00:02:18] real quick, [inaudible 00:02:14].

 

Al Letson: November 2015, a few nights before Thanksgiving. It was a Sunday just after sunset. A few hundred people had gathered in a playground called Bunny friend park. There were DJs and music, and a little after 6 PM, people started getting rowdy, then shots rang out.

 

[00:02:30]

Speaker 7:

 

It was like a war. Millions of people falling, machine guns, all type of guns.

 

Al Letson: This young college student, who also worked full-time, had come to Bunny Friend Park with a friend to check out the DJs. She asked us not to use her name because she's afraid someone involved in the crime will come after her. When the shooting started, she tried to run.

 

Speaker 7: It was fenced off and it had exits, but they had people standing in exits shooting, so it was a very [inaudible 00:03:05].

 

male officer: We need to secure [inaudible 00:03:07].

 

[00:03:00]

Speaker 7:

 

I guess it was kind of like a rushing pain, and my leg felt very heavy, more than the other leg. That's what made me look down, and I noticed I had puddles of blood.

 

male officer: [inaudible 00:03:19] we've got a female shot in the back, [inaudible 00:03:21].

 

Al Letson: 17 people were shot. No one was killed, but it shook New Orleans up. The Bunny Friend Shooting was all over the news. It was one more reminder of how bad crime is in the city. Independent producer Eve Abrams has been reporting in New Orleans for nine years. Today, we're revisiting a Reveal episode that she helped produce last year. She reported on the shooting and what happened when the police made their first arrest. The arrest would have huge and unexpected ripple effects that would go way beyond the shooters and the victims. Here's Eve.

 

[00:03:30]

Eve Abrams:

 

Five days after the shooting, the New Orleans police identified their first suspect: A 32-year-old man named Joseph Allen. That same morning, the day after Thanksgiving, private defense attorney Kevin Boshea went in to work. I met Boshea at his office outside New Orleans. It was weird. It looked like a motel converted into office suites. We sat down at a big table in the conference room lined with books so he could tell me this whole story.

 

[00:04:30] Can you walk us through the Joseph Allen case from the very beginning?

 

Kevin Boshea: Sure, absolutely. No problem.

 

Eve Abrams: This is how Boshea sounds all the time, like he's in the middle of putting out a fire.

 

Kevin Boshea: Alright, the scoop. Let's see, [crosstalk 00:04:42]

 

Eve Abrams: He's slight with curly gray hair and glasses. He's been a lawyer for over three decades.

 

Kevin Boshea: I have, almost without exception, worked the day after Thanksgiving. The phones don't ring, the clients aren't banging on the doors, it's quiet, it's peaceful, it's beautiful.

 

Eve Abrams: But this day, Boshea's phone was ringing when he walked in. On the other end of the line was a former client: Joseph Allen. Boshea reenacted the call for me. He got really into it.

 

[00:05:00]

Kevin Boshea:

 

"Kev? Yeah. This is Joseph. Yeah, this is Joseph Allen, yes sir." Now I figured this can't be a social call. There's something wrong but I don't know what it is.

 

Eve Abrams: Boshea knew Allen. He'd represented him before, getting him out of prison and on parole, so Boshea wasn't too happy to see what Allen said next.

 

[00:05:30]

Kevin Boshea:

 

"I'm wanted."

 

"For what, Joe?"

 

"The thing."

 

"What thing?"

 

"The thing."

 

"What thing?"

 

"You know, the Bunny Friend thing."

 

Expletives deleted, "You can't be serious."

 

"Kevin, I'm telling ya, I didn't do it, I wasn't there, I didn't do it, I wasn't there."

 

"Where are you?"

 

"Houston."

 

"Get your behind back here right this minute."

 

Eve Abrams: Boshea had worked really hard to get Allen out on parole before, so the next day, when Allen made it to his office, Boshea was annoyed. This is how you repay me?

 

[00:06:00]

Kevin Boshea:

 

"You know, being involved in the worst- Your charge was 17 counts attempted second degree murder? Holy guacamole, come on," and he says, "But Kevin, I've got proof, I've got proof!"

 

[00:06:30]

Eve Abrams:

 

From Walgreens, Walmart, the Burlington Coat Factory, all from stores in Houston from the same day as the shooting. Allen told Boshea he was shopping with his pregnant wife. The problem was he paid for everything in cash. None of the receipts had his name on them. Boshea knew the prosecutors would say Allen's receipts proved nothing.

 

Kevin Boshea: "Well, where's the video," they will ask, and so I turned back to Joseph and said, "Joseph, this is good, but it's not good enough."

 

[00:07:00]

Eve Abrams:

 

Boshea was on the case, but in the meantime he had to bring Allen to the police station where he was booked. The next morning Boshea gets on the phone with a private investigator in Texas. He's racing against the clock. He needs to get his hands on security camera footage. Something that will prove his client was in Houston and not in New Orleans at the time of the shooting. He knows stores record over their videos on the regular, so Boshea tells his detective ...

 

[00:07:30]

Kevin Boshea:

 

"Failure is not an option here, alright? We've got to have it."

 

"Well, I'm having this proble-"

 

"I don't want to hear it." We had to have it and we had to get it quickly.

 

Eve Abrams: And they got it.

 

Kevin Boshea: It would have been December 7th at 8:00 in the evening. We've got the video.

 

Eve Abrams: Security footage from multiple stores in Houston. Joseph Allen had been arrested based on the word of a single eye witness. Now Boshea had proof that Allen couldn't possibly be one of the Bunny Friend shooters. A legal ace-in-the-hole.

 

[00:08:00]

Kevin Boshea:

 

So now I'm not relying on a guy who's got a record, or his wife who's going to quote according to the DA lie and say whatever needs to be said, or paper receipts that don't show a credit card that they will argue are fabrications. Now I got it here.

 

Eve Abrams: Boshea shows up at court the next day for Allen's hearing. He's ready to go. He's got his video, he figures the DA will charge Allen, and it's a pretty informed hunch, because Boshea used to work for the District Attorney's Office.

 

[00:08:30]

Kevin Boshea:

 

This administration, basically they charge everything. We know that.

 

Eve Abrams: The DA is aggressive. He accepts almost every case the police bring his office, around 90% of the cases. So what happened next was surprising. The assistant district attorney prosecuting the case stood up and said, "At this time, the state dismisses all charges against Joseph Allen."

 

Kevin Boshea: Kaboom, and that was it.

 

Eve Abrams: But Boshea didn't quite trust that the DA was done with Allen.

 

[00:09:00]

Kevin Boshea:

 

So we tried the case on the streets of the city. We wanted the public to see with their own eyes what we had seen with our own eyes.

 

Eve Abrams: So Boshea set up a TV on the courthouse steps and the news cameras followed. Here's New Orleans WDSU News.

 

WDSU News: Right now we're actually looking at video of Joseph Allen and his wife [Valencia 00:09:22] when they were in Houston, Texas on the day of that shooting. Surveillance video shows they were shopping, they started [crosstalk 00:09:28]

 

Eve Abrams: Joseph Allen's mother, who'd been on TV before defending her son, took the mic.

 

[00:09:30]

Allen's mother:

 

I am so thankful to the DA for dropping these charges. When I told you all that my son wasn't there, then the people thought I was lying, just trying to protect him. He was not there.

 

Al Letson: It was a huge relief for Joseph Allen and his family, but that whole saga of Allen, his lawyer Boshea, and the video footage, all of that was the last straw for someone else. A guy named Derwin Bunton. He's the man responsible for defen-

 

  Section 1 of 5          [00:00:00 - 00:10:04]
  Section 2 of 5          [00:10:00 - 00:20:04]
(NOTE: speaker names may be different in each section)

 

Al Letson: A guy named Derwyn Bunton. He's the man responsible for defending everyone in New Orleans who is too poor to afford a lawyer. When Derwyn saw Joseph Allen go free, it made him rethink his job and his role in the justice system. He knew he had to do something big. Eve Troeh of WWNO in New Orleans, that's right we have two Eves in this episode, takes the story from here.

 

Eve Troeh: That video footage of Joseph Allen played on the courthouse steps was all over the news. Derwyn Bunton couldn't help but watch.

 

[00:10:30]

Derwyn Bunton:

 

I am the chief public defender for Orleans Parish.

 

Eve Troeh: In Louisiana, a parish is what we call a county basically. How long have you had this job?

 

Derwyn Bunton: I've had this job now for seven years.

 

Eve Troeh: Feels like how many years?

 

Derwyn Bunton: I joke with my friends, it's like dog years.

 

Eve Troeh: Derwyn leads a team of fifty or so lawyers who defend poor people. In New Orleans, pretty much everyone arrested is poor. The office had twenty-thousand cases last year. For a guy with so much responsibility, Derwyn, tall, calm, always in a suit has an easy laugh too. Like when I ask if I can watch a case in court he points to my microphone.

 

[00:11:00]

Derwyn Bunton:

 

I'm not going to let you bring that in.

 

Eve Troeh: Oh, I understand. I have no allusions about that. It has been made very clear that there is no recording in any Louisiana courtroom.

 

[00:11:30] No recording in court, which makes this whole story more difficult to tell you, because we are about to dive into the world of Louisiana's court system. So, what you won't hear is the courtroom drama where public defenders face off against district attorney's, the prosecution.

 

[00:14:30] Public defenders are there to uphold the sixth amendment. You know, that whole you have a right to an attorney. If you cannot afford an attorney, one will be provided for you. But, Derwyn says that's been hard to do for his thousands of clients, because his budget kept getting cut.

 

Derwyn Bunton: 2011, 2012, 2013, 2014 ... I'm like, okay this is a trend.

 

Eve Troeh: He's had to fire lawyers. That means everyone left gets more cases. Often, they barely get to meet with clients, much less hire private investigators to chase evidence.

 

Derwyn Bunton: Your not serving your clients. Your best when you are handling cases twice over the national standard.

 

Eve Troeh: Here's how the mass shooting at Bunny Friend Park fits in. When Derwyn watched Joseph Allen, the man accused, go free he thought what if that man didn't hire a private attorney. If he hadn't called Kevin Boshea. If he couldn't afford to pay a lawyer. Derwyn's office would have defended the case.

 

Derwyn Bunton: I looked at that case as it played out and at the end of that case I thought to myself, I'm not sure we would have made it to Houston on time. I'm not sure we would have made it to that footage before it was discarded or overwritten or erased. As a lot of that footage is nowadays, even though it's out there, it doesn't remain forever and if you move slow then you're going to miss this very important evidence.

 

Eve Troeh: Derwyn says it would have been hard, maybe impossible, for him or his public defenders to move as fast as private defense lawyer Kevin Boshea. Derwyn thought, if he had to defend Joseph Allen and didn't get that tape ...

 

Derwyn Bunton: That man would have been on trial for what would have been affectively his life based on the alibi of his mom and the mother of his child, which would of immediately be discredited by the district attorney's folks who love him. Of course, they are saying he wasn't there. But, he actually wasn't there.

 

Eve Troeh: This innocent man easily could have gone to jail for decades. It shook Derwyn. This was January 2016. Derwyn called an all-staff and made an announcement.

 

Derwyn Bunton: I told my leadership team, I told my staff, we're not going to be complicit in that and that's when we made the decision, you know, we're going to start refusing cases. Not just a sort of wait list, but we are going to say no, these are not our cases.

 

Eve Troeh: He began to refuse cases. Some cases that needed lots of time and attention. Ones with high stakes.

 

Derwyn Bunton: The armed robberies, the rapes, the murders, a lot of the sex offenses.

 

Eve Troeh: If his office doesn't have the time or resources to do it right, they won't take a case. Especially, those really serious cases. What they call level 5.

 

Derwyn Bunton: Say for example a murder comes in, that would be what we call a level five case and we'd have to give that to a level five lawyer. If we don't have a level five lawyer with room on their case load, we'll refuse that case.

 

Eve Troeh: Since January, his office has refused hundreds of cases. To be sure they can defend the clients they do have. Better to make people wait than risk someone innocent going to jail. But refusing some cases is not the same as a strike. Derwyn wants to be clear.

 

[00:15:00]

Derwyn Bunton:

 

I'm like, a strike is when you're not doing work you can do, to prove a point. This is work we cannot constitutionally, ethically and professionally do, this is not a strike.

 

Al Letson: When Derwyn's office started refusing cases, there were consequences. For one, hundreds of people accused of serious crimes were left in limbo, with no legal representation. Which got the attention of the American Civil Liberties Union.

 

[00:15:30]

ACLU:

 

We started hearing that there were people who were going to be sitting in jail, without the lawyers that they have the constitutional right to have. From our standpoint, it doesn't matter why they're not getting lawyers. They're not getting lawyers.

 

Al Letson: Derwyn's office gets sued and other ripple effects. That's coming up on Reveal.

 

[00:16:00]

Narrator 1:

 

Reveal is supported in part by Hello Fresh. Hello Fresh is the meal kit delivery service that makes cooking more fun so you can focus on the whole experience, not just the final plate. Each week Hello Fresh creates new, delicious recipes with step-by-step instructions designed to take around thirty minutes for everyone from novices to seasoned home cooks short on time. They source the freshest ingredients, measured to the exact quantities needed so there is no food waste. Hello Fresh is now offering light, Spring meals and has just introduced breakfast options for less than ten dollars per meal. For thirty dollars off your first week of Hello Fresh, visit hellofresh.com and enter the promo code Reveal30.

 

[00:17:00]

Al Letson:

 

From The Center For Investigative Reporting and PRX this is Reveal. I'm Al Letson. We just met Derwyn Bunton. He's the Chief Public Defender in New Orleans. His office is there to defend anyone who can't afford a lawyer. In New Orleans that's almost everybody. 85% of all criminal cases. The thing is Derwyn's funding has been cut every year for the past five years. At the end of 2015 he realized he couldn't do the job. His office just didn't have enough lawyers to defend the people that needed them. He took action. Derwyn started refusing some cases, leaving hundreds of people accused of crimes just stuck. Some of them were waiting in jail for months.

 

[00:17:30]

Derwyn Bunton:

 

That's really the low point for me in this, is knowing that there's people on the other end of this, there's families on the other end of this, looking for access to justice. I'm not able to provide everybody with access to justice. I know what that means.

 

[00:18:00]

Al Letson:

 

It means some people facing serious charges are left in limbo with no legal counsel. Eve Troeh of WWNO found a guy like that.

 

Eve Troeh: It was January when Derwyn stared refusing cases. That same month this man you're about to meet was involved in a situation with a woman who called the cops. He was arrested on charges of attempted second degree rape and simple battery. He went to jail. The arrest upended his life

 

John: I ended up actually losing my job that I have been off for almost a year. It was retail and that was actually in management.

 

[00:18:30]

Eve Troeh:

 

His retail management job counted him as a no-show. He hasn't been able to get steady work since. We're not using his real name because he's afraid his arrest record might keep him from getting a new job. We'll call him John. In jail, he also worried about his mom.

 

[00:19:00]

John:

 

My mother suffers from dementia. I was her sole provider. It was very stressful just wondering if or what would happen to my mom not taking her medication.

 

Eve Troeh: John didn't even know if anyone else in his family actually knew he was in jail. No Public Defender came to see John, no one talked to him about his case or helped contact family or his boss. The first time he talked to a lawyer was when he was brought to court for what's called first appearances. There's a tiny booth in the courtroom where he spoke briefly with a Public Defender behind a plastic window.

 

[00:19:30]

John:

 

I mean it was at most a five minute conversation.

 

Eve Troeh: Remember, there is no recording in court, but here is what first appearances look like. A group of inmates, almost always all black men stand in orange prison jumpsuits, shackled. The judge asks them each to stand and say out loud what they do for a living, how much they make, who they take care of at home. The inmates mostly seem confused about why the judge is asking these very personal questions.

 

  Section 2 of 5          [00:10:00 - 00:20:04]
  Section 3 of 5          [00:20:00 - 00:30:04]
(NOTE: speaker names may be different in each section)

 

Narrator: ... Used about why the Judge is asking these very personal questions. It's uncomfortable. But what the Judge is doing is deciding whether they're too poor to afford a lawyer and can get a Public Defenders. John remembers his Judge urging another guy to avoid the Public Defenders.

 

John: Guy was in there for some more serious accusations. The guy says he wasn't able to afford a lawyer and the Judge hasn't really said, "You have to get a lawyer in this case." From hearing that, I knew that [inaudible 00:20:35] Public Defender, I wouldn't have anyone working being able to spend the time on my case unlike someone who spends on it.

 

[00:20:30]

Narrator:

 

John spent about a week in jail before his family scraped together $4000 to pay a bail bondsman. But once he got out, John lost his spot with the Public Defenders. He didn't know this, but he was on the wait list. People stuck waiting in jail were ahead of him. So he just waited for his court date without a lawyer.

 

[00:21:00]

John:

 

I did. I tried to contact a few lawyers to represent me and they raised based around $10000 that I didn't have.

 

Interviewer: $10000 just to get started?

 

John: Right. Just to get started, right.

 

Narrator: John didn't know what to expect in court. Should he wear his Sunday best? Would he even get to go home that day? Or would the court decide to detain him and send him right back to jail?

 

John: I just had to basically go on faith.

 

[00:21:30]

Narrator:

 

Nothing happened. The Judge said, "Come back in 30 days." John did, then the Judge said, "Come back if you get something in the mail." Then more nothing. When I called John, he hadn't heard anything in eight months.

 

John: Even to this day I didn't know where the case was. So really, I'm kind of tippy-toeing [inaudible 00:21:51] not wanting any how police interactions and avoiding any type of confrontation with just some regular interacting with people.

 

[00:22:00]

Narrator:

 

The state had dropped the more serious attempted rape charge. That was months ago in June.

 

Interviewer: How did you find out that the charges were dropped?

 

John: Actually, you confirmed that the charges are dropped.

 

Interviewer: So no one ever told you? What happened? You just never heard back. You never got a letter in the mail saying the charges were accepted, but you also never got anything saying that they were dropped?

 

John: Nothing.

 

[00:22:30]

Narrator:

 

No one had told John. The battery charge seems to have been kicked down to municipal court. John asked me what that meant. Was he cleared? I didn't know. I'm not a lawyer. All I had was an email saying the felony charge was dropped.

 

John: Are you able to send me a copy of that?

 

Interviewer: Yeah, sure.

 

John: What other information you have on me I appreciate that.

 

Narrator: Just as John didn't know what was going on with his case, the Public Defenders Office didn't know either because they refused the case, no one was tracking it. We told Derain Bunton what his decision did to John's life.

 

[00:23:00]

Derwin:

 

What should've happened is he would've been assigned a lawyer very early on, and then looking into his case to perhaps get the charges dismissed or refused faster, and of course to keep him apprised of the status of his case at every change, and more information for not just him but for his family as well.

 

[00:23:30]

Narrator:

 

This is the standard Derain wants to meet, but he says he just can't. No time, not enough lawyers, hence the slowdown. And yeah, that means some people wait longer or get no help at all.

 

Derwin: There's more and more of those families being touched by this and I think that's tragic and it's really hurtful for me and the rest of my staff.

 

Narrator: But this heavy conscience doesn't help the people waiting. When Louisiana's America Civil Liberties Union learned about the Public Defenders wait list, ACLU lawyer Marjory Esmond said, "Not Okay."

 

[00:24:00]

Marjory:

 

We started hearing that there were people who were going to be sitting in jail without the lawyers that they have the constitutional right to have.

 

Narrator: Right after the wait list started, Esmond filed the lawsuit in Federal Court. On behalf of several men whose cases got refused.

 

Marjory: And from our standpoint, it doesn't matter why they're not getting lawyers, they're not getting lawyers. And what people don't always realize is that because of the sixth amendment constitutional right to counsel. If we can't defend, we also can't prosecute because anybody who says "I want a lawyer" has the right to have a lawyer, and that means they can't be prosecuted. The backlog in the courts is going to be massive.

 

[00:24:30]

Narrator:

 

Derain knows that. He actually welcomes this lawsuit because it can draw attention to what he sees as a deeply unfair system.

 

[00:25:00]

Derwin:

 

Poor people justice is the same as rich people justice, and what I do hear a lot from some stakeholders and decision makers, I'm fighting for a Cadillac system and poor people don't deserve a Cadillac. Criminal justice system don't deserve a Cadillac defense. And all the people who say that have yet to define for me what that means. I don't know what I'm asking for that's extra.

 

[00:25:30]

Narrator:

 

Derwin's not jamming the gears so he'll be able to offer a Cadillac defense he says. He's doing it to keep his office running, to avoid a total breakdown of justice.

 

All over the country, Public Defenders are over-burdened, and there's no place worse than Louisiana. Lots of parishes here are in crisis. They have too many cases and not enough time, yet the stakes are really high. Will Snowden is one of Derwin's Public Defenders in New Orleans. He's tall, slender with a neatly trimmed beard. He works two blocks away from the courthouse in a dingy, fluorescent lit office building.

 

[00:26:00]

Will:

 

So the wait list has been fortunate for me, but terrible for my clients or potential clients because they've been sitting in jail without a lawyer.

 

Narrator: The professional standard is lawyers shouldn't take more than 150 felony cases a year. Before Derwin's slow down Will had 255 felonies in 2015. That would give him about one business day to put together a defense for murder, rape, or armed robbery. One business day.

 

[00:26:30]

Will:

 

I used to have nightmares about my clients going to prison because I fail to do something.

 

Narrator: He's talking literal nightmares.

 

Will: Like waking up in the middle of the night like, "Oh did I file this motion for this client?" Or did I do this, or the person is facing 20 years to life for a little bag of weed, in a separate trial what am I going to do, how is this possible? What is going on? What can I do to stop it? You try to go back to sleep. You end up closing your eyes and sitting there, but your mind is just racing and you're thinking, "Well did I do this? Did I do that?" And then you get mad at yourself for not doing certain things.

 

[00:27:00]

Narrator:

 

Will and a lot of Public Defenders here are driven by a mission. Their offices are like the peace core for lawyers.

 

Will: We simply are locking up too many black people, and that's one of the reasons why I came to New Orleans to be a Public Defender.

 

[00:27:30]

Narrator:

 

On Will's office walls there are pictures of him with former clients, and in the corner is a clothing rack full of suits for his clients to wear to court so they're not in orange jump suits. Will's been doing this three years. He says they used to be in the office seven days a week, just trying to get through his cases. Things are better under the wait list, but he's troubled by all the people waiting.

 

Will: If we're here to accept these cases and to represent these people and procedurally we're not allowed to do that. It just kind of questions your existence as a Public Defender. The emotional experience is shame.

 

[00:28:00]

Narrator:

 

This is not the goal of the slow down. What Derain ultimately wants is reasonable case loads for his lawyers like Will and to be able to defend everyone who needs their help. For that he needs not just more money, he would actually need the entire system for how his office gets its money to change. Derain says, "That's because the bulk of the funding for Public Defense in Louisiana comes from a really weird source. It's traffic tickets."

 

[00:28:30]

Derwin:

 

Rolling through the stop sign, speeding in a school zone, all those sort of moving violations there is a Public Defender Fee attached when you pay that ticket.

 

Narrator: So run a red light and part of that money you owe goes to pay a lawyer for, say someone accused of armed robbery. It's odd and unstable. You never know how many traffic tickets will get written each month. I asked Derain, "So why traffic tickets?" He didn't know. Lots of people I asked didn't know. We found a long time Louisiana lawyer Walt Sanchez who knows. Over the phone he explained, "The Louisiana Legislature came up with this in the 70s."

 

[00:29:00]

Walt:

 

The funding scheme was simply the path of least resistance. There wasn't any real in depth thought put into how do we come up with a stream of income that actually meets the needs of the given parish.

 

[00:29:30]

Narrator:

 

It was a punt, a way to fund an unpopular issue, lawyers for accused criminals. And that funding was kind of left to traffic patterns.

 

Walt: So if you had a parish that had a stretch of interstate through it, you generally had a pretty reasonable level of funding or a consistent stream of funding.

 

Narrator: Because a major highway means more traffic tickets. No interstate? You're poor people don't get as strong a defense if they get arrested. So un-even.

 

  Section 3 of 5          [00:20:00 - 00:30:04]
  Section 4 of 5          [00:30:00 - 00:40:04]
(NOTE: speaker names may be different in each section)

 

female reporter: ... Don't get as strong a defense if they get arrested. So uneven. Now, some other states also use traffic ticket money to help pay for public defense, kind of an extra slush fund, but Louisiana uses traffic tickets as the main funding source and that causes chaos says James Dickson. He's runs Louisiana State Public Defender Board in Baton Rouge. He points to devastating floods as a perfect example. An emergency shelter was set up right by his office when we talked. Any district that flooded is in for big problems funding public defense.

 

[00:30:30]

James Dickson:

 

You have districts that rely primarily on traffic tickets for their funding. Flooding takes that out of the equation. No Sheriff in his right mind or her right mind is going to emphasis traffic tickets during a disaster. I mean, no citizen would expect them to and I certainly don't. So, traffic tickets are going to plummet in every single one of those districts.

 

female reporter: So Baton Rouge Police write fewer traffic tickets because they're busy with more serious issues right after the flood and all of a sudden the Public Defender sees a drop in money. Can't afford to pay an expert witness, can't hire a private investigator, can't work up as strong a case for a client. Here's another problem, when Louisiana created this system, it also created a public defender fee. Durwin Bunten hates that.

 

[00:31:00]

Durwin Bunten:

 

So if you're deemed eligible for the public defender's office the first thing is you owe me $40. There's an application fee.

 

[00:31:30]

female reporter:

 

We just saw a guy in the lobby trying to pay that.

 

Durwin Bunten: $40. Now, once we have your case and we carry it through resolution, if you're found guilty or you plea guilty then you owe us another $45. That's the public defender fee.

 

female reporter: If you're guilty you pay $45 for your lawyer. If you walk free-

 

Durwin Bunten: You owe nothing. If you pay attention to that, folks quickly realize we get paid to lose. Because if we get your case dismissed or you're acquitted the office receives nothing. If you're found guilty or plead guilty we receive another $45.

 

[00:32:00]

female reporter:

 

Public defenders have told me they get clients who look them in the eye and say, "You're paid to lose". James Dickson says that's awful.

 

James Dickson: That is a horrible optic. I mean, I can tell you, public defenders ... it does not affect how they work at all. But the problem is, there is a grain of truth behind it and that makes it very difficult to deal with the client. And when a defender has trouble communicating with his client everybody suffers. And I mean everybody. It undercuts the court, it undercuts the credibility of the court because they're seen as just being part of a process, it is just a horrible, horrible way to fund a public defense system.

 

[00:32:30]

female reporter:

 

Public defenders in Louisiana want a baseline of stable guaranteed funding. No more of this user pay system where guilty verdicts get them more money and their ability to do their jobs well depends on how many people get caught speeding. Durwin's slowdown in New Orleans is causing problems getting attention, but in a state with a looming 1.7 billion dollar budget gap where even schools and hospitals are on the chopping block, getting extra millions to defend people accused of crimes seems a long shot. (music)

 

[00:33:30]

Al Letson:

 

In Louisiana, public defenders are not funded nearly as well as the police, the courts, and district attorneys. That means, when public defenders show up in court they're always the underdogs.

 

[00:34:00] Coming up next, the prosecution weighs in.

 

Leon Kenozaro: I can't see myself ... if the shoe was reversed, I can't see myself saying to the citizens of the city of New Orleans, "Listen, we're not going to be able to prosecute the case that a victim brings to us or some police officer brings to us because we just don't think we have the funding to affectively prosecute the case". I can't, in all fairness, I can not let budget constrains affect my ability to operate this office.

 

[00:34:30]

Al Letson:

 

You're listening to Reveal.

 

Advertisement: Today's show is sponsored by Talk Space, the online therapy company. For as little as $32 a week, you can work with an experienced, licensed therapist hand picked just for you. On Talk Space you can send text, audio, and video messages to your therapist and talk about your life or just work on feeling a little bit happier. To sign up or learn more, go to talkspace.com/reveal. And to show your support for this podcast, use code Reveal to get $30 off your first month. That's code Reveal at talkspace.com/reveal.

 

[00:35:00]

Al Letson:

 

From the center for investigative reporting and PRX, this is Reveal. I'm Al Letson. We've been telling the story of New Orleans Chief Public Defender Darwin Bunten after a mass shooting in New Orleans in 2015, the Bunny Friend Park shooting, Durwin realized something big, 17 people were shot that night. The wrong man was accused, but his private lawyer found evidence that freed him. Durwin realized his office might not have been able to prove that man's innocence. They were simply too over loaded. So Durwin made moves to lighten their load. His office started refusing cases, backing the court up and leaving some clients waiting in jail. We're going to pick up the story with the prosecutor. Not just of the Bunny Friend case, but of every case in Orleans Parish. Here's independent producer Eva Bruce.

 

[00:36:00]

Eva Bruce:

 

New Orleans district attorney Leon Kenozaro looked straight out of central casing from Law & Order, crisp white shirt, tie, neat, and tucked. Also, very old school. He answered many of my questions like this.

 

Leon Kenozaro: Yes ma'am I do. I have no objection. I simply, I want them to have the necessary funding [crosstalk 00:36:43]

 

[00:36:30]

Eva Bruce:

 

Kenozaro has been watching from the other side of the courtroom ever since Durwin Bunten started refusing cases. Remember, Durwin's argument is that the public defenders don't get enough money to provide all their clients with a constitutional defense. But Kenozaro's not buying it.

 

Leon Kenozaro: Well I disagree with that. I think that they certainly have been extremely affective in that courtroom and I know because we have to do battle with them on a daily basis.

 

[00:37:00]

Eva Bruce:

 

No matter how affective Durwin's attorneys are, their budget is way smaller than the DAs. Last year around six million to the DAs 12 million. That's not exactly apples to apples though. The DAs office does a lot more stuff than just argue court cases. And Kenozaro says he needs more money too. In fact his budget for next year was just cut.

 

Leon Kenozaro: In the criminal justice system, especially in the city of New Orleans, all of the participates in the criminal justice system are woefully underfunded.

 

[00:37:30]

Eva Bruce:

 

Which is true, but it's especially bad for the public defenders. In order to do public defense right, Durwin told me he needs to double his funding. (music)

 

If you've ever been to a courthouse, you've probably seen a statue of Lady Justice. She's that Greek goddess looking woman, the one blindfolded and holding a scale. She's meant to symbolize the balance in our judicial system. The truth that emerges when opposing sides are equally matched. If Kenozaro's funding was ever as unstable as Durwin's, would be do what Durwin did? Would he ever refuse to prosecute cases? Do you have to think about, "Oh is there space in the budget" or is that not something that you really think about?

 

[00:38:00]

Leon Kenozaro:

 

I can't say myself ... if the shoe was reversed I can't see myself saying to the citizens of the city of New Orleans, "Listen, we're not going to be able to prosecute the case that a victim brings to us or some police officer brings to us because we just don't think we have the funding to affectively prosecute the case". I can't, in all fairness, I can not let budget constrains affect my ability to operate this office.

 

[00:38:30]

Eva Bruce:

 

And in the case of the Bunny Friend shooting, he didn't. When it came to investigating their first suspect, the guy we heard about earlier, the DA didn't let budget constraints get in the way. Kenozaro used his resources, his investigators. And remember that security camera footage? Well, the DAs investigators found that too. It proved the suspect was in another city at the time of the shooting. And that's why the DA says they never pressed charges. But in the weeks that followed, the District Attorney went on the charge 10 other people in the shooting. Four of those people got their lawyers through the public defender's office. It's late summer and I'm in Will Snowden's office, the public defender who had nightmares about his case load. He's now representing one of the Bunny Friend defendants, Malek Johnson, who faces eight charges, firing a gun, among others. The police arrested Malek because another defendant said that Malek was at Bunny Friend the night of the shooting and identified Malek from a photo line up. Malek's a little hard to reach because he's not in the New Orleans Jail. He's in a jail in the north eastern corner of the state, next to Arkansas.

 

[00:40:00]

Sheila:

 

Hello, my name is Sheila, how can I help you?

 

William Snowden: He's Sheila, my name is William Snowden from the Orleans Public Defender's office.

 

  Section 4 of 5          [00:30:00 - 00:40:04]
  Section 5 of 5          [00:40:00 - 00:53:42]
(NOTE: speaker names may be different in each section)

 

Speaker 1: Can I help you?

 

William Snowden: Hi Sheila, my name is William Snowden from the Orleans Public Defenders Office. I had scheduled a phone, attorney client phone visitation today with my client Malik Johnson at 2 PM.

 

Speaker 1: Mercy. I didn't even get that. Where'd you fax it to?

 

William Snowden: I faxed it yesterday to 318-559 ...

 

Speaker 3: Malik was moved from New Orleans because of issues with the city jail, which has been under a Federal Consent Decree since 2013. Meaning, there were so many problems in the jail, poor mental healthcare, inmate violence, and inmate deaths that the Department of Justice stepped in.

 

[00:40:30] Will says, "Still all the time." His clients tell him how violent the jail is and about all the weapons.

 

William Snowden: Shanks and shivs and knives and the terror is very, very real. It's very palpable. And I have clients who say, "Listen, we may get one hour outside of our cell, but I just shower, do what I need to do, and go back because it's more safe in my cell."

 

Speaker 3: To reduce the number of people behind bars, a brand new, much smaller jail opened in the fall of 2015. But, the sheriff claims it's too small. So he's moved hundreds of people, like Malik, who are awaiting trial in Orleans Parish to jails in other parts of the state.

 

[00:41:00]

Speaker 4:

 

Thank you for calling the Riverbend Detention Center. For English, press one. Gracias.

 

Speaker 3: Hundreds of defendants are now being held hours and hours away from their families, and their attorneys. Several of Will's clients are four and a half hours away in East Carroll Parish, which means Will can't see them.

 

[00:41:30]

William Snowden:

 

I'm not gonna drive to East Carroll Parish. I have a 2001 Mercury Sable, and I need to change the brakes on it. I'm just not gonna do that drive.

 

Speaker 3: He can't. Will has to be in court in New Orleans every weekday. Visiting just one client in East Carroll Parish would take around nine hours roundtrip, just with driving. So to get to know those clients, Will has to call them on the phone, but that brings up a whole other problem. Will isn't sure who else is listening.

 

[00:42:00]

William Snowden:

 

Because the prompt that happens in the beginning, you know, is that the call is going to be recorded and that prompt kind of happens maybe every five minutes. You'll get a reminder in the middle of the conversation that the call is being recorded.

 

Speaker 3: Will's talking about the New Orleans Jail here and the person he's worried might be listening is the DA.

 

William Snowden: They have pretty much unfettered access to those jail calls and they, you know, listen to them to see if they can find anything that's useful.

 

[00:42:30]

Speaker 3:

 

The calls to his clients in East Carroll Parish aren't supposed to be recorded, but Will doesn't trust that no one's listening. But still, in order to speak with Malik, it's the only option.

 

After four phone calls and two different kinds of hold music.

 

Speaker 5: Hello [inaudible 00:42:48].

 

William Snowden: Thank you.

 

Speaker 3: We'll finally get through to his client.

 

Malik Johnson: Hello.

 

William Snowden: Hi, Malik.

 

Malik Johnson: Yeah.

 

William Snowden: Hi, this is your lawyer, William Snowden.

 

Malik Johnson: I'm good, how are you?

 

Speaker 3: Malik was 17 when he was arrested. He's 18 now. He's been in jail for over ten months waiting for his trial. Ten months.

 

[00:43:00]

Malik Johnson:

 

You know, I'm just ready, I'm just ready to go home to my family.

 

Speaker 3: Will says, "When you have a client as young as Malik, even though he's legally considered an adult, he's still very much a kid." So Will got in touch with his mom and he went back to Bunny Friend Park to gather evidence for Malik's defense.

 

William Snowden: This is a picture of the basketball court. It's a picture of the bathrooms, scoreboard. So, that I can get a general understanding when the detective is testifying. I know what he was talking about. And if he's saying that this witness saw this particular individual at this location, I'm gonna be able to say if that's possible or not.

 

[00:43:30]

Speaker 3:

 

Will says, "Preparing for a case is an infinite task. There's always more to do. Motions to file, case laws to brush up on, detectives to subpoena, school records to look at, and endless people to interview."

 

I asked Malik how he feels about his lawyer.

 

[00:44:00]

Malik Johnson:

 

He's about his business.

 

Speaker 3: He's about his business?

 

Malik Johnson: Mm-hmm.

 

Speaker 3: What does that mean?

 

Malik Johnson: It means he's focused, like he's focused on your case and he's gonna get it right. And focus on everything he do.

 

Speaker 3: Malik used to think public defenders worked with the prosecutors. They didn't care about defending clients like him. But now, having Will represent him, Malik's entire picture of public defenders has changed.

 

Malik Johnson: They'll help you. They're a regular paid lawyer.

 

[00:44:30]

Speaker 3:

 

They're a regular paid lawyer, is that what you said?

 

Malik Johnson: Mm-hmm.

 

Speaker 3: Like a lawyer you would hire, not get for free. This is how the public defensive system is supposed to work with public defenders who have the time to do just as good of job as private attorneys. It's what Derwyn Slowdown is all about. Providing clients with a solid defense, no matter how much it gums up the works.

 

But in a lot of places that's not what happens, according to Ilham Askia. She's the Executive Director of Gideon's Promise, a national organization that supports public defenders out of Atlanta, Georgia.

 

[00:45:00]

Ilham Askia:

 

What we have found across the country is that although people go into the work to help people, they quickly are burnt out or tired or are so under resourced that they leave the job or fall victim to processing people through the system and not effectively advocating for their clients.

 

Speaker 3: Processing people through the system, in other words, keeping the system going. Barely meeting with clients, resolving their cases as quickly as possible and then moving on to the next.

 

[00:45:30] Most public defenders can't escape this pressure, to keep things moving.

 

Ilham Askia: And so what happens is clients get arrested, they may sit in jail, trying to make bond, and many of our clients cannot, and they want to go home. And so, a person could be not guilty of the crime they're accused, but knowing that they will sit and languish in jail, possibly losing their job, losing the rights to their children, losing subsidized housing if they stay any longer. And so what often happens is that they take pleas.

 

[00:46:00]

Speaker 3:

 

Plea deals. Even if they're innocent they plead guilty, and in exchange get a lighter sentence or avoid jail entirely. Nationally, around 95 percent of criminal convictions come from plea deals. Just last month, the District Attorney's office offered a one-time plea deal to several defendants in the Bunny Friend case, including Malik.

 

[00:46:30] Here's the deal the DA offered, plead guilty to unlawfully discharging a firearm and the other seven charges against you will be dismissed. It was an intense decision. Malik was able to sit in the courtroom with his family to discuss it. The other nine defendants, were sitting there too, with their lawyers. At one point, people started yelling at each other. Malik's family was worried that other defendants would start pointing the finger at Malik in order to get better deals for themselves.

 

[00:47:00] Will wanted to fight for his client. He had a plan for how to defend Malik at trial, but that would be risky. If they lost, Will says, "Malik could end up in prison for anywhere between ten and 47 years." With a plea deal, Malik would know exactly how many years he would serve. Will says, "The whole family was torn up about it. Malik was crying, his mom was crying, his brothers and sisters were crying." Malik did not want to take the plea, but his mom begged him to. In the end, he took it.

 

[00:47:30] His sentence is ten years with credit for time already served. In the best possible situation, he'll be out in six and a half years. He'll be 24.

 

I asked one of the victims of the shooting, the college student we heard from at the beginning of the story, if she kept up with the case at all? And she said, "No."

 

[00:48:00]

Speaker 8:

 

I just let it go. All the way. I said, "You know, I'm fine. I recovered." I just moved on. I don't want any, like, parts of it. I just let it go.

 

Speaker 3: And does it matter to you if they find the right people and they go to jail?

 

Speaker 8: No, it don't matter because there's still people out here killing, gonna continue doing that, so you taking away four, five people, and the rest of the city still bad people, it really don't even matter.

 

[00:48:30]

Speaker 3:

 

In her mind, locking people up doesn't change how violent New Orleans is. Nor does it help her have more faith in the system.

 

Chief Public Defender Derwyn Bunton says he hears this all the time.

 

Derwyn Bunton: When I talk to families of clients, over the years, they use words like, like railroaded, racist, unfair, unjust. It's that idea that they're simply not going to get a fair shake.

 

[00:49:00]

Speaker 3:

 

Derwyn says that's all he wants. A fair shake for his clients. The slowdown was his last resort. A choice that took him seven years to make after trying everything else. Overloading his staff, arguing for different funding, and watching year after year as his budget kept getting smaller and smaller.

 

How does it weigh on you knowing that there are all these people now who are without a public defender because they're on a wait list?

 

[00:49:30]

Derwyn Bunton:

 

Well it's terrible and terrifying. It's one of those things that weighs on me and my staff every day. And we think about and keep track of every day focus on the wait list.

 

Speaker 3: And, like, how long are you gonna hold out? Like a year? Two years?

 

Derwyn Bunton: You know, I think we're basically going to move forward constitutionally, ethically, and professionally. So, we're gonna stay inside those boundaries. We are simply not going to play this role of blessing an unjust system.

 

[00:50:00]

Speaker 3:

 

So for the foreseeable future, Derwyn is going to continue refusing cases until something really changes. He knows he's putting pressures on the courts and the legislature, and worst of all, poor people waiting in jail without attorneys. But Derwyn is forcing the issue. He's forcing people to look at what it would truly cost to properly defend all the people we arrest.

 

[00:50:30] Louisiana locks up more of it's citizens per capita than any other place in the world. And defending all those people properly, according to the constitution, is expensive. Right now, most people don't see those costs. Right now, the rubber hits the road in courts and jails, places most people avoid given the option. So Derwyn is going to keep loudly pointing at the price tag, and maybe that's the best way to get everyone's attention. To provide them with a healthy amount of sticker shock.

 

[00:51:00]

Al Letson:

 

Since this show first aired, public defenders have hired back some staff members. The City of New Orleans promised them a little bit more money for this year's budget. It was supposed to help them replace the 37 staff members who were let go in 2015 including experienced attorneys. But that money didn't actually come through.

 

[00:51:30] That ACLU lawsuit against Derwyn's office we mentioned earlier has been dismissed. We don't know if the ACLU will appeal, but in February the Southern Poverty Law Center filed a new lawsuit on behalf of inmates it says have been denied legal defense because Louisiana's system is so broken. It sued the state, the governor, the Louisiana Public Defender Board, and it's leader, one of the voices in this episode, James Dixon.

 

[00:52:00] Thanks to independent producer Eve Abrams and WWNO's Eve Troeh in New Orleans for this episode. And a heads up, Eve Abrams also has her own podcast and I love it. It is so good, you have to check it out after this one's over. Seriously. When this show's over, go check it out. It's on criminal justice in New Orleans and it's called Unprisoned. Must listen.

 

[00:52:30] Updates were produced by Julia B. Chan and edited by David Richard. Our show was originally edited by Laura Starecheski. Special thanks to Kyra Azore, Nandi Campbell, John Adcock, and Katie Rectall. We also want to thank WHYY in Philadelphia for providing production support for this week's show and Terry Girls, hey. Our sound design team is the Wonder Twins, my man J. Breezy, Mr. Jim Brakes, and Claire Seemeltmullen. They had help this week from Peter Kanheim and Vanessa Lowe. Our head of studio's Christa Scharfenberg, Amy Pyle's our Editor in Chief, Susanne Reber's our Executive Editor and our Executive Producer is Kevin Sullivan. Our theme music is by Commorado, Piten.

 

[00:53:00] Support for Reveal is provided by the Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the John S. and John. L. Knight Foundation, and the Ethics in Excellence in Journalism Foundation. Reveal is a co-production of the Center for Investigative Reporting and PRX. I'm Al Letson and remember there is always more to the story.

 

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