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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 Courthouse

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.

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.” 

Solitary Confinement, Jail Deaths Rock Race For Sheriff in California

In Santa Clara County, incarcerated people, and a former undersheriff challenging six-term sheriff Laurie Smith, have turned conditions of confinement into a potent electoral issue.

Santa Clara County Sheriff Laurie Smith and challenger John Hirokawa.
Photo illustration by Anagraph/Photo via County of Santa Clara Office of the Sheriff/ Photo via John Hirokawa

Solitary Confinement, Jail Deaths Rock Race For Sheriff in California

In Santa Clara County, incarcerated people, and a former undersheriff challenging six-term sheriff Laurie Smith, have turned conditions of confinement into a potent electoral issue.

The Appeal is spotlighting sheriffs across the country who are seeking re-election on Nov. 6. The rest of the series is available here. This piece is a collaboration with Solitary Watch

In August, Wendy and Chris Hogan called 911 after their 24-year-old son Andy stopped taking his medications for schizophrenia. Andy had hit his father at their home in Milpitas, California and they were hoping for help. Instead, deputies from the Santa Clara County Sheriff’s Office arrested Andy Hogan on misdemeanor assault charges and a probation violation. When Hogan was booked, staff at the Main Jail’s Psychiatric Unit noted Hogan’s schizophrenia but determined that he could be held in general population at the Elmwood jail, one of the county’s three jails.

But within days, Hogan complained about hearing voices, said that men were out to get him, and began banging his head against the cell wall. Jail staff then placed him in handcuffs and leg irons in order to transport him to the county’s main jail. In the van, he began banging his head repeatedly against a post. When the van arrived at the jail, supervisors instructed the deputies to leave him inside, unattended, until EMS arrived. Later, EMS opened the van doors and found Hogan unconscious with his skull split open. After the incident, Hogan was in a medically-induced coma but his condition has improved since then.  

Three years earlier, in 2015, three Santa Clara County jail deputies fatally beat 31-year-old Michael Tyree, who also suffered from mental illness. Under pressure, Sheriff Laurie Smith investigated and arrested the deputies; in 2017 they were convicted of manslaughter and sentenced to 15 years to life. But problems continued to plague the Santa Clara jail system, which on an average day detains approximately 3,500; nearly 48,000 people, many of them pre-trial, cycle through the jails each year.  In 2016, 2017, and 2018 incarcerated people staged three mass hunger strikes to protest conditions in the jails. More than a dozen suicides have taken place in the jails since 2011, the most recent in mid-October.

On Nov. 6, Santa Clara County voters will determine if Sheriff Smith deserves a sixth term; conditions of confinement in the jails have emerged as a potent issue in her re-election campaign. Indeed, Smith’s challenger and former undersheriff John Hirokawa has described Smith as “asleep at the wheel” when it comes to management of her jail and her 1,800 employees. Hirokawa said that after Tyree’s death he received calls from Smith’s staff asking for help. “The sheriff’s in town,” he said, “why aren’t you calling her?”

The U.S. has over 3,000 sheriffs, nearly all of whom are elected. For voters—even in enclaves of wealth and education like Santa Clara County, whose nearly 2 million residents include many who live and work in Silicon Valley—this is an often-overlooked ballot on Election Day. But increasingly, prison justice organizers and abolitionists are seizing upon sheriffs’ races to push for much-needed changes to both criminal justice and immigration policies, as well as jail conditions. In North Carolina and Wisconsin, they’ve defeated sheriffs who’ve embraced the 287g program which allows state or local law enforcement to enter into a partnership with ICE for immigration enforcement—and made jail conditions an electoral issue.   

Similarly, in Santa Clara, incarcerated people and their advocates have forced the crisis in the county’s jails into the campaign for sheriff. In April, more than 100 incarcerated people in its jails launched a hunger strike protesting the practice of holding people in indefinite solitary confinement, and arbitrarily classifying them into various custody levels. “I am participating in Santa Clara county jail’s current hunger strike due to uneven application of policy which has resulted in discrimination and unfair treatment by administration,” stated one man six days into the strike. “Ultimately, I believe Laurie Smith is responsible.”

This year’s strike, organized by Prisoners United of Silicon Valley, an advocacy group led by people inside the jails, lasted 11 days and was suspended only after jail administrators agreed to meet with hunger strikers. In a letter to Sheriff Smith, participants issued four main demands: an end to the classification reviews, in which jail officials determined people’s housing or security levels; an end to solitary confinement practices; a response to appeals and grievances within 30 days; and increased out-of-cell time, including time to clean their day rooms and showers.

“Many of us have spent over three years in solitary confinement,” explained another hunger striker. “Eventually we were moved to a secretive, more restrictive location which operated a pilot program. Literally, we were stripped searched several times a day. We were deprived of fundamental bare elements of human existence for approximately six to eight months. We were not allowed to go outside, we were not allowed one single breath of fresh air, and not one single ray of sunlight touched our skin.”

Placement in isolation in Santa Clara’s jails isn’t necessarily determined by violent behavior or rules violations. According to Jose Valle of Prisoners United, upon arrival and booking the jail assigns a classification based on the individual’s charges and alleged gang ties. “Based on classification, prisoners can be housed indefinitely in maximum security housing units without any real path to downclass to a less restrictive setting,” he said. “This punitive and subjective classification system leaves this population to be vulnerable to correctional officer violence and mental health crises.”

Such policies, Valle says, mean that Santa Clara’s jails have “a SHU within a SHU,” referring to the notorious Security Housing Unit at California’s Pelican Bay State Prison, where people spend years and sometimes decades, in isolation. “They called it East Little Max,” Valle said of Santa Clara solitary. “They had individuals there because of their [pending] charges. They had no time out-of-cell unless it was in the middle of the night.” This made it impossible for incarcerated people to call their family members or coordinate legal strategies with their attorneys.

The hunger strikers have found some unlikely allies. At the time of the 2016 strike, the Deputy Sheriffs’ Association, the union for the rank-and-file enforcement officers of the Santa Clara County Sheriff’s Office, released a statement criticizing Smith for not being responsive enough to jail conditions ranging from solitary confinement to inadequate clothing. The sheriff’s office agreed to increase out-of-cell time for people with high-security classification and to release them in groups rather than individually.  But these changes weren’t enough to prevent the 2017 hunger strike, which Smith angrily denounced in remarks to  local news outlet San Jose Inside: “We do not allow gangs to run the jails—and some of them could stand to lose a little weight. We will give their fresh food to the Salvation Army again. There are hungry people who committed no crimes and deserve a dinner.”

Complaints about jail conditions have also spawned a federal lawsuit. In 2015, the Prison Law Office filed Chavez v Santa Clara County on behalf of two men held in the county’s jails. The suit, which has since been certified as a class-action, alleges that the county isolated hundreds of people for months, and sometimes years, in cells as small as six-by-seven foot, with little human contact, sunlight, fresh air, or exercise. The lawsuit also claims a pattern of brutality from Santa Clara County Sheriff’s deputies; a investigation by the Mercury News found more than 300 excessive force complaints between 2010 and 2015.

At the same time, the Blue Ribbon Commission on Improving Custody Operations, a civilian-led commission formed after the deadly beating of Tyree in 2015, recommended removing control of the jails from the sheriff’s office, overhauling the jail’s classification system, and creating an independent civilian oversight commission. Though Santa Clara has had a Jail Observer Program, which relies on calls and requests from people in the jails and their families, the program lacks any investigative or regulatory authority over jail operations.

“Having independent oversight is essential any time you have people in closed institutions,” said Michele Deitch, a lecturer at University of Texas at Austin School of Law and an expert in oversight of correctional facilities. “There needs to be some ability to ensure their civil and human rights.” Deitch emphasized that the oversight needs to be ongoing. “These are chronic issues that need to be managed. It’s not a one-time fix.”  

Regardless of the outcome of the sheriff’s election, Santa Clara jails will receive independent scrutiny. In the county’s 2018 budget $2.5 million is allocated to establish oversight of the Department of Correction and Sheriff’s Office, including the creation of a nine-member civilian commission and an ombudsman office to provide neutral, outside investigation of complaints and concerns. The county issued a request for proposals for prospective monitors in June.

On Oct. 23, a settlement in Chavez v Santa Clara County was reached; the county agreed to improve medical, dental and mental health care and to change its use of force and solitary confinement policies, including a limit of 45 days in isolation for any single rules violation.

Smith did not respond to requests for an interview from The Appeal and has refused to answer questions from the local press about Andy Hogan. In an emailed statement to The Appeal, however, her challenger blasted Smith’s record on running the county’s jails. “The Sheriff has not taken reforms seriously,” John Hirokawa said, “and in the last two and half years since I retired there have been seven additional deaths in the Jails. Community trust has eroded and the investigations have not been transparent. People should expect more from their sheriff and know that the buck stops with them.”

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New York’s long-overdue ‘Raise the Age’ law will protect 16- and 17-year-olds from Rikers Island, but not upstate prison

New York’s long-overdue ‘Raise the Age’ law will protect 16- and 17-year-olds from Rikers Island, but not upstate prison

What you’ll read today

  • Spotlight: New York’s long-overdue ‘Raise the Age’ law will protect 16- and 17-year-olds from Rikers Island, but not upstate prison

  • The Appeal Podcast Episode 19: Prison strikes are the front line against mass incarceration

  • Georgia mayor plans to round up paroled sex offenders while kids trick or treat

  • North Carolina county’s practice of shackling young people in court might be illegal

  • Will Alabamans vote to stop sheriffs from pocketing money designated for prisoner food?

  • Tennessee voters will have the chance to install a police misconduct oversight board

In the Spotlight

New York’s long-overdue ‘Raise the Age’ law will protect 16- and 17-year-olds from Rikers Island, but not upstate prison

This month, a New York State law raised the age for trying youth in family court and took everyone under 18 from Rikers Island. Now, New York will no longer automatically charge 16-year-olds as adults; in October 2019, the law will also apply to 17-year-olds. New York had long confined youth alongside adults despite ample evidence of harm. A 1972 oversight report on conditions for youth on Rikers Island concluded that the adolescent facility “is the worst prison in the city.” A U.S. Justice Department investigation four decades later found things little changed, describing a “deep-seated culture of violence.” [Vincent Schiraldi / New York Daily News] So there was certainly cause for celebration after the Raise the Age initiative passed, with some calling it a historic protection for young defendants. The law is a major change in how the state deals with 16- and 17-year-old defendants, diverting the majority of those cases directly to family court or to judges with access to social services and special training. And until it passed, New York was one of only two states, with North Carolina, to automatically treat every 16- and 17-year-old as an adult. [Jesse McKinley / New York Times]

But after hard-fought negotiations, the resulting bill left many supporters disappointed. “This is real simple, and we made it complicated,” state Senator Kevin S. Parker of Brooklyn said. “All we had to simply do is say that we’re going to take 16- and 17-year-olds and we’re going to treat them just like 15-year-olds. … And we messed that up.” [Jesse McKinley / New York Times]

Kate Rubin, director of policy and strategic initiatives for Youth Represent, told the Daily Appeal that the vast majority of 16- and 17-year-olds arrested are accused of misdemeanors, and under the new law, those facing misdemeanors will have their cases handled in family court, not criminal court. There, they will have no chance of getting a criminal record, the case will be kept confidential, and they will be spared the vast majority of the collateral consequences that make it so difficult to lead a successful life after a criminal conviction.

Nonviolent felony cases will all start in criminal court, in a new section known as the “youth part,” which is staffed by judges trained in family court law. After 30 days, 16- and 17-year-olds will be automatically sent to family court unless a district attorney proves “extraordinary circumstances,” a term the law does not define. In violent felony cases—which make up about 1 percent of juvenile charges in New York each year—young people will start in the youth part of criminal court but could be diverted to family court if the victim did not sustain significant physical injury, if the case did not involve a deadly weapon, and if there is no allegation of criminal sexual conduct. [Jesse McKinley / New York Times]

Rubin notes that there’s a meaningful difference between how young people see themselves when they are tried in family court, as opposed to the way they see themselves if they go through criminal court. Professor of law and public health Jeffrey Fagan has compared young people who were arrested in New York to those arrested in New Jersey, where people are legally considered juveniles until age 18. Fagan found that the New York youth, who went through the adult system, were arrested again more quickly, more often, and for more serious crimes. [Vincent Schiraldi / New York Daily News]

Vincent Schiraldi, co-director of the Columbia Justice Lab and former commissioner of New York City Probation and director of youth corrections for Washington, D.C., wrote in an op-ed that although “it is laudable that the governor and Legislature have acted, the new law creates a hybrid system that is nationally unprecedented and potentially dangerous.” He points to the “quasi-adult system” that will send incarcerated 16- and 17-year-olds to “facilities run jointly by adult and juvenile corrections personnel—facilities that do not currently exist and are particularly difficult for small counties to create.” It will take young people far away from their families and attorneys and will counteract “the intended goal of raising the age of criminal responsibility in the first place—namely, to treat youth like youth.” [Vincent Schiraldi / New York Daily News]

“An adult prison is always a prison, even if there’s programming and some services related to training and education and re-entry preparation,” Rubin told the Daily Appeal. “Prisons are designed for punishment and retribution.” Ideally, a youth facility sets a young person up to exit that facility and succeed on the outside, with services tailored to a young person’s needs. Maybe the difference between serving a 40-year-old and a 50-year-old isn’t tremendous, she notes, but the difference between serving a 16-year-old and a 30-year-old is. “If a 40-year-old wants to get a high school degree, we don’t send them back to high school because we know that they learn in a different way, their brain operates differently,” she says. “We should have the same philosophy when it it comes to corrections.” And adult facilities, she adds, have been shown to be terrible for kids. Suicide rates are high, young people are vulnerable to high rates of staff abuse, and they are unlikely to raise complaints.

“The new legislation purports to treat adolescents as adolescents, but actually continues the illogical and harmful practice of prosecuting youth accused of more serious crimes as adults,” Gregg Stankewicz, director of the Adolescent Defense Project at the Bronx Defenders told the Daily Appeal. “Lawmakers acknowledged the science of adolescent brain development, but lacked the political courage to afford this understanding to all of the young people in the criminal justice system.”

Stories From The Appeal

Photo illustration by Anagraph. Photo by Justin Merriman / Getty Images

The Appeal Podcast Episode 19: Prison Strikes Are the Front Line Against Mass Incarceration. This fall, thousands of incarcerated people in dozens of states went on strike to protest harsh and exploitative conditions in America’s prisons. Appeal staff reporter Raven Rakia, joined Adam to talk about these efforts and what the future holds for the prisoners’ rights movement. [Adam H. Johnson]

Stories From Around the Country

Georgia mayor plans to round up paroled sex offenders while kids trick or treat: Gary E. Jones, the mayor of Grovetown, Georgia, announced plans to round up all paroled sex offenders in town and hold them at City Hall on Halloween while kids are trick-or-treating. On Facebook, Jones acknowledged that there had been no previous incidents on Halloween; it was purely precautionary. Facing criticism, he wrote: “This is legal….. good grief!” There is no evidence that children are more likely to be targeted by sexual predators on Halloween than on any other night of the year. [Antonia Noori Farzan / Washington Post] See also The Appeal’s coverage of communities that have enacted Halloween-specific restrictions targeting people convicted of sex crimes [Elizabeth Weill-Greenberg / The Appeal].

North Carolina county’s practice of shackling young people in court might be illegal: In Durham County, young people are often shackled at the wrists, waist, and ankles. Judge Jim Hill says that these restraints help keep kids safe in courtrooms, but many have criticized “Durham County’s routine practice of shackling youths, who can be as young as 6, being held in juvenile detention,” according to the Herald Sun. Experts say “restraints can cause long-term psychological damage in children, many of whom have already witnessed or experienced traumatic events.” Many attorneys and advocates believe the practice runs afoul of state law. “I think the basis of the [state] statute is to protect juveniles from having to deal with that kind of embarrassment of being brought in with these handcuffs,” said Hannah Emory, a public defender who represents young people in Durham County. “I don’t think that is something we necessarily want juveniles at such a young age to be made to feel like they are having to be restrained.” [Virginia Bridges / Herald Sun]

Will Alabamans vote to stop sheriffs from pocketing money designated for prisoner food? Ten years ago, paying $500 for half a truckload of corn dogs to feed prisoners was a particularly good deal for Morgan County Sheriff Greg Bartlett, “who liked to find free or donated food for his county jail so he could pocket the leftover money from a state stipend for feeding” prisoners, reports Mother Jones. “For weeks, Bartlett’s prisoners ate corn dogs twice a day,” and he took a total of $212,000 over a three-year period, “taking advantage of an ambiguous state law that lets sheriffs pocket tax dollars meant to buy meals for jail inmates.” He became known as “Sheriff Corndog,” and was ultimately jailed for a night for not providing an adequate diet. On Election Day, voters in Alabama’s Morgan and Cullman counties will “vote on amendments to the state constitution that would require sheriffs to use their food budgets only for feeding” prisoners. The amendments would only apply to those two counties, so they would not apply to Etowah county, home of the infamous “beach house sheriff.” [Madison Pauly / Mother Jones]  See also Our 3/15/18 edition.

Tennessee voters will have the chance to install a police misconduct oversight board: In the last two years, Nashville police officers have shot and killed two Black men who were running away from them, sparking demands for an independent board empowered to investigate police misconduct. Voters will decide whether to approve such a board in a referendum this fall. The proposed board would be able to investigate individual complaints and broader policies. It “would have the power to issue subpoenas and compel witnesses,” according to The Appeal: Political Report. But its recommendations would be advisory, issued to the police department and the mayor. The measure also provides that four of the board’s 11 members need to live in “economically distressed neighborhoods.” The Fraternal Order of Police opposes the amendment, and is airing advertising against it. [Daniel Nichanian / The Appeal: Political Report]

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