Defense attorneys in Louisiana could be subject to new rules governing their investigations—and threatened with criminal sanctions if they don’t comply.
Under legislation passed in the state House of Representatives and soon to come before the state Senate, defense attorneys would be required to notify victims and victims’ family members that they represent the defendant and that the individual being interviewed does not have to talk. Failure to follow the law would be a misdemeanor, punishable by up to six months in jail.
The bill’s sponsor, Representative Jean-Paul Coussan, and district attorneys say that the bill is intended to protect victims.
“Victims’ rights are paramount under the [state] Constitution and the Constitution says the legislature should enact laws to protect those rights,” he said before the state House on April 24.
But defense attorneys argue that they are already required under ethics standards to identify themselves as representatives for the defendant, and this bill puts them at risk of jail time for no apparent reason. They also say that asking them to advise victims and their families of their legal rights would constitute giving legal advice to individuals they don’t represent, which violates ethical standards.
“The bill forces attorneys to choose between violating our ethical mandates or going to jail for following them,” Meghan Garvey, a public defender in New Orleans and member of the Louisiana Association of Criminal Defense Lawyers, told The Appeal.
What you’re doing is essentially hamstringing the ability of public defenders to basically do their duty.
James T. Dixon Jr. Louisiana Public Defender Board
As a result, they say, it would suppress the investigations that are a critical part of a defense attorney’s work, said James T. Dixon Jr., a member of the Louisiana Public Defender Board.
“What you’re doing is essentially hamstringing the ability of public defenders to basically do their duty, which is to defend their client,” he testified in the legislature.
Even before this new legislation was on the table, defense attorneys said, the Orleans Parish District Attorney Leon Cannizzaro’s office had a history of criminally prosecuting public defenders for doing their jobs. In recent years, his office brought felony criminal charges— including kidnapping and impersonating a peace officer—against at least four defense attorneys and investigators for speaking to witnesses during the course of investigations, according to a report in The Guardian. One investigator was accused, due to a mistake, of misidentifying herself, even though she provided a business card. None of the charges against her and the other defense attorneys and investigators resulted in convictions.
At the same time, the DA’s office has arrested and jailed victims and witnesses in order to secure their testimony. DAs were caught using documents that looked like court-ordered subpoenas to pressure reluctant witnesses to appear for private interrogations. In October 2017, Civil Rights Corps, the ACLU, and ACLU of Louisiana filed a federal lawsuit against the Orleans Parish DA’s office. It argued that district attorneys used the fake subpoenas and other “unlawful means to coerce, arrest, and imprison crime victims and witnesses.”
Dixon and other defense attorneys see the legislation as the latest effort to stack the odds against public defenders and their clients.
The bill comes as the Orleans public defenders office said it is instituting a hiring freeze and is curbing the practice of sending cases to private attorneys in order to cut costs. The chief district defender has projected a $400,000 shortfall and a $700,000 cut from the state Public Defender Board this fiscal year, according to the New Orleans Advocate.
The way to protect everyone is to enforce current laws.
Meghan Garvey public defender
Defense attorneys say this legislation would waste the public defenders office’s limited resources because it would effectively require them to send two attorneys or investigators out into the field every time they talk to a victim or a victim’s family so they have corroboration that they followed the law. That’s already the case in Orleans Parish, where after repeated prosecution attempts by the Orleans DA, New Orleans’ public defenders instituted a policy of sending pairs to interview people and required witnesses to sign affidavits confirming they understand they are speaking to a defense attorney.
“This is going to impact us financially, it is going to be a chilling effect on our lawyers, it is going to be a chilling effect on our investigators, for something that does not need to be fixed,” Dixon said.
Colin Reingold, a public defender in New Orleans, said the limited resources would impair his ability to rigorously investigate cases.
“There’s an immediate operational concern that we need witnesses to every interaction, no matter how fleeting, for fear that we’re going to be falsely accused of what is now a crime,” he said.
Dane Ciolino, professor of legal ethics and criminal procedure at Loyola University New Orleans College of Law, called it the legislation an “anti-defense bill” and said that if lawmakers cared about victims, they would protect them against abuses by law enforcement and district attorneys as well.
Garvey says both sides should follow the law, but the legislation is unnecessary. “In Louisiana, we have a rigorous victims’ bill of rights and also strict rules against misleading witnesses,” Garvey said. “The way to protect everyone is to enforce current laws.”