New Orleans Public Defenders Punished For Locating Key Witness
The attorneys said they did nothing wrong by finding a victim in a rape case who had disappeared, but a judge accused them of making her unavailable.
In 2017, New Orleans prosecutors charged Regan Preatto with rape for allegedly sexually assaulting a 17-year-old girl. The girl said that in February of that year, the two were sitting on her bed when he raped her. Preatto was arrested in March 2017, but about two weeks later the girl recanted. She later recanted at least three times before prosecutors said she broke off contact with them.
But Orleans Parish prosecutors continued to pursue charges. Just as Preatto’s trial was set to begin last month, prosecutors said they could no longer find the accuser and requested that Judge Paul Bonin allow them to move forward without her.
Prosecutors said Preatto made phone calls from jail shortly after his arrest in which he pressured the girl’s family to get her to recant her statement. On Sept. 17, Judge Bonin listened to the calls and, according to court records, determined that “the defendant played a part in procuring the victim’s unavailability.”
The same day, Bonin barred the defense from presenting “evidence of [the] victim’s recantation of the events,” according to court records.
Preatto’s public defenders, Beth Sgro and James Brockway, objected to Judge Bonin’s decision and requested a stay in the case while they appealed his decision. Bonin denied that request and ordered the case to trial.
At the outset of the trial, prosecutors built their case around the victim’s original statement to police and DNA evidence discovered during her forensic exam that matched Preatto.
When the defense began presenting its case, they produced a surprise witness: the accuser. Sgro and Brockway said they found the woman, now 20 years old, but did not say how. On Sept. 19, she took the stand and told the jury that she had falsely accused Preatto of rape, which matched her prior recantations. Sgro and Brockway also argued that she had not been unavailable, as the state had argued, but instead prosecutors had simply given up their search for her.
Despite her recantation, on Sept. 20 Preatto was convicted of felony third-degree rape and aggravated crimes against nature by a vote of 10-2 after three hours of deliberation by the jury.
In a 2018 ballot measure, Louisiana voters eliminated the practice of nonunanimous verdicts. But state law allows for no-unanimous verdicts for offenses that occurred before January 2019. In October, the U.S. Supreme Court heard oral arguments in a case out of Louisiana that could make all nonunanimous verdicts unconstitutional. Louisiana and Oregon are the only two states that allow criminal convictions with a nonunanimous verdict.
During a Sept. 25 post-conviction hearing, Bonin questioned Sgro and Brockway about the circumstances surrounding their involvement in locating the victim. Bonin’s questioning prompted the two public defenders to invoke their Fifth and Sixth Amendment rights against self-incrimination on behalf of themselves and Preatto. They also requested to be removed from Preatto’s case.
“The Orleans Public Defenders is 100 percent confident the defense team in this case acted both legally and ethically in this matter,” Chief District Defender Derwyn Bunton wrote in an Oct. 18 memo supporting the motion to withdraw as counsel. Bunton wrote that because Bonin asked questions about the appropriateness of interactions between the defense team and the accuser, they had a right to not answer. Bunton also wrote that Bonin’s stance creates a conflict that could prevent them from providing a full and constitutional defense of Preatto as they may have to choose between their Fifth Amendment right to remain silent and Preatto’s right to effective counsel.
“Part of the unusualness of what’s going on here is the judge questioned the lawyers about how they located a witness and how they investigated and tried a case,” Carissa Byrne Hessick, a University of North Carolina law professor, told The Appeal. “I wouldn’t say it’s unheard of, but it’s not common.”
Hessick said it’s possible that the public defenders may have been concerned that answering questions could open themselves or Preatto up to obstruction charges but also that answering Bonin’s questions could violate attorney-client privilege.
“As a general matter, I think judges are generally hesitant to ask lawyers questions about how they prepared for trial,” she said.
The Orleans Parish public defenders office declined to comment to The Appeal, but in a Sept. 30 interview with nola.com, Bunton said Sgro and Brockway did not answer questions because Orleans Parish had a history of putting his employees “in handcuffs.”
In 2009, an investigator with the Orleans Parish public defenders office was charged with kidnapping and contempt by the Orleans Parish DA’s office for allegedly speaking with two underage girls outside their apartment while their mother was asleep inside.
In 2014, investigator Taryn Blume was charged with felony impersonating a peace officer and faced up to two years in prison. Prosecutors said Blume spoke with security officers from the local housing authority and requested evidence for a case. After speaking with Blume, one of the security officers contacted a lawyer for the housing authority and mistakenly said that Blume said she worked for the district attorney’s office.
The Orleans Parish DA’s office continued to pursue the case against Blume until the charges were abruptly dropped in January 2017.
Preatto is scheduled to be sentenced on Nov. 6 and now faces the potential of life in prison because on Oct. 2, Orleans Parish prosecutors filed a multiple bill against Preatto seeking to label him a habitual offender.
Louisana’s habitual offender statute allows prosecutors to seek enhanced sentences—up to life in prison without parole–for people convicted of felonies multiple times. The statute has contributed to Louisiana having the second-highest incarceration rate in the United States and one of the highest rates of people serving life without parole.
Without the habitual offender label, Preatto faced a maximum sentence of 30 years in prison.
“It’s unusual that after a defendant has been convicted that the judge would ask the lawyers questions about the witnesses they called,” Hessick said. “I’d imagine [the defense attorneys] would be worried about creating an atmosphere where defense attorneys couldn’t mount a vigorous defense of their clients because they’d have to be worried about themselves afterward.”
On Oct. 22, the Louisiana Supreme Court reprimanded the Orleans Parish prosecutors for its conduct in another rape case. The court ruled that the office undermined the authority of the trial court to the point “that it offends bedrock principles of fundamental fairness and due process” because it dismissed and refiled charges against a man as a means to introduce testimony barred from his original trial.