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Louisiana Judge Threatens To Appoint Every Eligible Lawyer To Death Penalty Case

After the state cut funds for capital defense, there’s a growing wait list of people in jail without a lawyer.

The Caddo Parish CourthouseFlickr/elizabeth_jayne

Sitting in Caddo Parish District Court on Sept. 17, nearly three months after he learned he faced death for allegedly killing his ex-girlfriend on Facebook Live, Johnathan Robinson, 37, still didn’t have a lawyer certified to try capital cases.

My impression was that he was frustrated by all of this argument of who would represent him,” recalled John Landis, outside counsel for Jay Dixon, the director of the Louisiana Public Defender Board.

Landis was in court that day to explain to Judge Ramona Emanuel that the board did not have the monetary resources to immediately provide capital defense for Robinson as required by the U.S. Constitution. Such representation requires special certification in Louisiana. As is customary, Landis provided Judge Emanuel with a list of 48 certified lawyers across the state who could potentially serve as Robinson’s legal team. Rather than select a few from the list, she declared that all qualified attorneys, public and private, would be appointed and ordered to appear. Robinson’s next hearing is scheduled for Tuesday.

“I’ve been called into a number of courts on this issue,” Dixon said. “Calling in every available lawyer? That we haven’t seen.”

This unprecedented move would not address the root issue, public defenders say, which is grossly inadequate funding for capital defense—and public defense in general—across the state. Louisiana is the only state in the country that primarily relies on fines and fees, including traffic tickets, to pay for constitutionally mandated public defense. As traffic ticket revenue declined over the years, public defenders’ offices were thrown into crisis. “The joke in Louisiana is your Sixth Amendment rights depend on how many traffic citations are issued by the local law enforcement,” said Orleans Parish Chief Defender Derwyn Bunton. “And it’s actually not a joke.”

The wait list for capital defense representation has been growing for a year and a half, since the state legislature diverted $3 million from the board’s $8.5 million capital defense fund to local public defender offices, a move Dixon describes as “basically rearranging the deck chairs on the Titanic.” Currently seven people facing the death penalty are in jail indefinitely because they can’t afford a lawyer—a situation that Bunton calls the “worst kind of limbo” for defendants, as well as victims’ families. Robinson is first on the list, according to the board.  

Multiple Louisiana capital defenders told The Appeal that they have yet to be subpoenaed to appear for the Robinson case. Shreveport, in the northwest corner of the state, is a four- to five-hour drive for the majority of the qualified attorneys, who are based in New Orleans and Baton Rouge. According to Dixon, attorneys are already taking measures to avoid the potential trip for a complex case without guaranteed compensation. “We’ve had a couple people basically contact us and ask to be taken off of the list,” he says. “Revoking their certification permanently. It exacerbates the problem.”

Because the U.S. Supreme Court has articulated strict constitutional standards for the death penalty, capital cases require far more resources than a typical felony case. People facing execution are entitled to multiple appeals in state and federal court, which means years of investigation and litigation for both the defense and prosecution.

Louisiana’s requirements for lead trial attorney on capital cases, instated in 2010, include a submission of writing samples, a personal statement, and multiple references; completion of the board’s training program; and at least five years of criminal trial experience, including prior experience on at least two cases where the death penalty was at least sought, if not brought to trial.

Capital defenders point to Louisiana’s above-average reversal rate on death penalty cases—82 percent according to a 2016 study by researchers from the University of North Carolina and Northeastern University—as proof that the public defender board’s standards are merited. Several capital defense attorneys have lost their certification or been suspended for misconduct that included being drunk in court and ignoring clients after collecting fees. One capital defense office lost funding after a string of their clients in Caddo Parish received the death penalty. “We are trying to impose these standards so that the bottom of the barrel isn’t representing these people,” says Ben Cohen, a capital defense lawyer with the Promise of Justice Initiative.

Yet district attorneys accuse the board of setting superfluous standards for capital defense and creating an attorney shortage.

“These are murder cases. That’s all they are. They are not that much more complicated,” says Hugo Holland, a former assistant district attorney in Caddo Parish. Holland was forced out of the office in 2012 for falsifying documents to procure M16 rifles from the federal government. Since then, he has become a prosecutor-for-hire with a specialty in death penalty cases. He has also lobbied on behalf of various district attorneys, and in 2016 testified in favor of the legislation that would slash capital defense funding 30 percent.

Although the expense of capital litigation has drawn criticism in Louisiana in recent years, two death penalty abolition bills faltered this year. Public defenders say this is largely because of Holland’s lobbying.

Holland, who described himself to The Appeal as “just a grunt assistant DA working on my cases,” acknowledged his commitment to preserving the death penalty. “As long as I can keep breathing and going to Baton Rouge, I’m going to try to keep it the law of the state,” he told The Appeal.

He insisted that the public defender board is on a mission to abolish capital punishment. “Does the garbage man get to say, ‘We’re full up today, I can’t pick up the garbage?’” he added. “Just do your job.”

Holland “does not want to have an adversary that’s fully funded,” countered Cohen of the Promise of Justice Initiative. “He’d rather practice law against people who are incapable of defending their clients. It’s tactically sophisticated but morally bankrupt.”

Pete Adams, executive director of the Louisiana District Attorneys Association, told The Appeal that though he did not want to comment on the Robinson case specifically, “Part of the suspicion is that [the board] might have the ability to try this case, but every time there’s a case it’s used as an excuse for the public defenders to discuss the lack of funding.” (A spokesperson for Caddo Parish District Attorney James Stewart declined to comment on the pending case.)

Amid this debate, capital defenders say they are unsure what Judge Emanuel’s decision will mean for Robinson in the short term. “My grandfather has an expression: You can’t get blood out of a stone,” Cohen says. On Tuesday, “I don’t know what she’s going to get these lawyers to do.”

Richard Bourke is director of the Louisiana Capital Assistance Center, which contracts with the state public defender board. In the Robinson representation debate, he sees parallels to the case of the Scottsboro Boys, nine Black teenagers who were accused of raping two white women in Alabama in 1931. Unable to find a defense attorney for the boys, the judge appointed two lawyers the morning of the trial. Eight of the boys were sentenced to death. A year later, the Supreme Court ruled in Powell v. Alabama that the boys, who ultimately were not executed, had been denied their constitutional right not just to representation in a capital case, but adequate representation.  

“Eighty years on from Powell,” he says, “we’re still not able to provide the minimum representation the Constitution requires.”

Update: The Louisiana Public Defender Board received a ruling and modified order on Friday, in which Judge Emanuel retracts her request for all qualified attorneys to appear to possibly represent Robinson. It remains unclear who will represent Robinson in his capital trial. The judge stated in the Oct. 25 ruling that, “At present, the determination of all relevant issues is a work in progress.”