In Louisiana, Defendants Facing the Death Penalty Face a Wait List for An Attorney

In 2016, Louisiana Democratic Governor John Bel Edwards made good on a campaign promise to fix his state’s wildly underfunded public defender system by pushing the state legislature to increase funding to public defender offices working on regular felony and misdemeanor cases.

But there was a catch: the majority of the increased funding didn’t come from new taxes or other sources of additional revenue — instead, $3 million was simply cut from the $8.5 million budget for death penalty defense.

As a result, indigent defendants charged in death penalty cases in Louisiana, in either the pre-trial or post-conviction phase, are facing capital defense lawyers resisting new appointments as well as a waiting list for an attorney.

This is the first time that indigent capital murder defendants in Louisiana have faced a wait list since 2007, when the state’s capital defense standards were overhauled by the Louisiana Public Defender Board (LPDB).

“Before the [2016] budget cuts, we had just begun to meet standards for trial and appeal, but not post-conviction,” said Ben Cohen, a capital defense lawyer who is of counsel with the Promise of Justice Initiative, a New Orleans-based criminal justice reform non-profit, referring to the creation of the LPDB in 2007 and the capital standards it adopted.

The LPDB oversees the state’s public defender offices, including law offices specializing in indigent death penalty defense, such as the Capital Post Conviction Project of Louisiana.

But after the 2016 cuts to capital defense, the wait list returned, a shocking reversal for a state that was just beginning to meet constitutional minimums for indigent capital defendants. Historically, Louisiana has consistently struggled to adhere to the Sixth Amendment’s right to counsel requirement, especially in death penalty cases.

Traditionally, Louisiana has spent a fifth of its indigent defense funding on capital appeal cases, a drain on its already modest public defense system. Louisiana funds its indigent defense through a combination of state funding and local revenue, which is mostly provided by traffic tickets and differs from district to district. In 2017, for example, just 38% of funding came from the state, while 62% came from local revenue sources.

State lawmakers are cognizant of capital punishment’s enormous costs and in March of 2017 a death penalty abolition bill was introduced in the state house but then failed to pass the criminal justice committee by a single vote. In late April that year, a similar bill in the senate successfully advanced out of committee but then died after it lost critical political support.

One of the death penalty abolition bill’s fiercest opponents was Hugo Holland, a former assistant district attorney with the Caddo Parish district attorney’s office, which became notorious in 2015 when then-DA Dale Cox said that the state should “kill more people.”

Like his onetime boss Cox, Holland is a death penalty evangelist. “If a stray kitten was hit in the street, I’d pick it up and take it to the vet, pay the bill and then try to adopt it out,” Holland, who owns a cat named after Lee Harvey Oswald, told the Advocate in 2017. “But it would not faze me in the least to watch a man executed, and that would include hanging or firing squad.” After being forced to resign from the Caddo DA’s office in 2012 for falsifying paperwork to obtain eight M-16 rifles from a military surplus program for supposedly dangerous “front line” prosecutions, Holland began contracting with DA’s offices in Louisiana to handle high profile capital cases, including a cold murder case that was the oldest prosecution of a suspected serial killer in United States history. Holland serves as a prosecutor on such significant cases despite the fact that he’s faced numerous accusations of misconduct, such as withholding exculpatory evidence.

But Holland is not just a prosecutor; he has been hired by the Louisiana District Attorneys Association (LDAA) to lobby against criminal justice reformas well as state funding for indigent defense.

Holland’s role as Louisiana’s prime public defense antagonist was on display during a February 1 hearing in Alexandria, Louisiana regarding legal representation for Matthew Sonnier, who was indicted for first-degree murder in November of 2017. In Louisiana, first-degree murder is punishable by life without parole — or death — and Holland is prosecuting Sonnier on behalf of the Rapides Parish district attorney’s office.

At the hearing, Sonnier’s appointed attorney Richard Bourke filed a motion to withdraw from the case, based on his already overwhelming workload. According to the American Bar Assocation guidelines for death penalty representation, “in making assignments of counsel to a particular capital case, the Responsible Agency should give careful consideration to counsel’s qualifications, skills, and experience…and the relative onerousness of prospective lawyers’ existing caseloads.”

Bourke explained that his office, the New Orleans-based Louisiana Capital Assistance Center, had already reached the maximum contractual hours it could bill the state to possibly hire more attorneys, and that given his own workload, he could not effectively represent another capital defendant.

“Your honor, my workload at the minute makes it impossible for to ethically accept the appointment of another capital case,” Bourke told the court. “The workload associated with these cases is simply too great for me to assume responsibility in another case, without then having to fail to perform adequately in the cases I’m already on, and for Matthew Sonnier.”

Holland simply declared that attorneys representing indigent capital clients waste state resources, and questioned the LPDB’s James T. Dixon about its funding of offices like Bourke’s, claiming “I can show you the funds are being misspent … What I’m gonna do is ask those people … sitting over here to do their jobs.” But during the hearing, Holland didn’t present any actual evidence of misspending by any law office specializing in indigent capital defense.

Nonetheless, since the reemergence of the wait list for indigent defendants facing the death penalty, Dixon has been subpoenaed by Holland and other prosecutors over a dozen times to testify on the lack of sufficient funds for defense in capital cases, as attorneys attempt to resist their appointments. In an interview with The Appeal, Dixon of the LPDB dismissed Holland’s claims of misspending. “We have a waiting list because of a lack of funding, not anything else,” Dixon said.

Holland declined to be interviewed for this article, writing in an e-mail that after a “quick perusal” he concluded that The Appeal has a “particularly anti-prosecutor and anti-capital punishment leaning.” He then said that the “meat” of his claims would be revealed in a future hearing.

In keeping with Holland’s theory that defense attorneys misspend public funds, he lobbied for the 2016 budget cuts that eviscerated the budget for death penalty defense. “Hugo Holland lobbied to move that funding from capital defense organizations to non-capital services,” said Cohen, the capital defense lawyer. “But they just robbed Peter to pay Paul.”

Cohen says that Holland is singularly influential in moving the conversation around the death penalty and capital defense spending.

“The only person who would be that kind of counterweight would be the pope,” Cohen remarked, “Holland attacks anyone who gets in his way and everyone else is much more measured and restrained.”

Because of the crisis in capital defense spending, according to Cohen, it would be 20 years, at the earliest, before a defendant could be put to death if he or she were arrested anytime after August 2018 and had exhausted all of their appeals. Until that time, he estimates, the state will spend a quarter of a billion dollars to execute a single defendant.

It’s particularly wasteful spending because over the past 30 years, more than half of death sentences in Louisiana have been reversed by higher courts, by far the highest rate in the nation among states that still have the death penalty, spotlighting the need for funding of post-conviction appeals. And the years of overworked and ineffective counsel in Louisiana have left many on death row without any chance to remedy the mistakes of their lawyers.

On March 5, the Supreme Court refused to hear the case of Todd Wessinger, who was sentenced to death in 1997 for killing two restaurant employees by a Baton Rouge jury that hadn’t been presented with serious mitigating evidence including Wessinger’s brain damage. Wessinger’s first post-conviction attorney suffered “a mental breakdown” wrote Justice Sonia Sotomayor in her dissent, and did no work on his appeal, while his next appellate attorney exerted almost no effort on the case. “The layers of ineffective assistance of counsel that Wessinger received,” Justice Sotomayor wrote, “constitute precisely the type of error that warrants relief under this Court’s precedent.”

While Wessinger’s Cert Petition was denied by SCOTUS, Matthew Sonnier found some temporary relief in a Louisiana courtroom. At the end of the February hearing in Alexandria, the judge released Bourke from Sonnier’s case and halted the prosecution for four months to determine if new funding could be identified. There will be a new hearing in June regarding whether the state will have enough money to pay for his defense; until then, he’ll stay on a wait list for an attorney, which has ballooned to a dozen defendants as of February 21.

It’s unclear if the future will bring further funding for capital defense in Louisiana because the state legislature is currently in the midst of a special session focused on closing a massive budget gap. In previous years, that gap had been filled with cuts to healthcare and education that have cut both of those services in the state to the bone. Perhaps this time, to help plug that hole, state representatives might return to the house bill that died by a single vote in committee last year and abolish the death penalty.