NEW ORLEANS — Judges hearing an appeal Monday on whether putting poor defendants on wait lists for an attorney violates their constitutional rights appeared skeptical as to whether it was the federal court's job to step in or whether there was still a need to do so.
The three-judge panel at the 5th U.S. Circuit Court of Appeals was hearing a case brought by the American Civil Liberties Union.
The ACLU sued the New Orleans and state public defenders in 2016 on behalf of three defendants after the New Orleans body began putting some poor defendants on wait lists to get an attorney. The Orleans Public Defenders argued they didn't have the resources and staffing to fairly defend those clients.
The lawsuit was part of a long history of challenges to the state's indigent defense system, which critics say is underfunded and relies too heavily on fines and fees that can vary wildly from year to year.
The ACLU would like the federal courts to declare the wait lists a violation of the defendants' constitutional rights. A lower court judge acknowledged a "serious systemic problem" in Louisiana's indigent-defense system, but said the issues should be addressed in the appeals process.
The federal appeals panel seemed just as skeptical Monday.
Judge Jennifer Walker Elrod questioned why these cases weren't brought before the relevant state judges, for example, by arguing their right to a speedy trial was being violated.
"Remedy is with the state judge," she said.
The judges also pointed out that there seemed to be little difference in the position of the ACLU and the defendants, with both sides calling on the federal judge to make a ruling. At one point, Judge E. Grady Jolly questioned whether the court case was simply a public relations effort to get a decision from the federal court that they could then show to the state legislature, presumably to force change.
Speaking after the hearing, Buskey said states aren't allowed to get out of following the constitution by simply not paying for a constitutional right.
Elrod also questioned why the case was still continuing when the defendants were no longer on a wait list. The three defendants were eventually appointed lawyers and have had their cases adjudicated.
John Landis, an attorney representing the state public defender, said that at the state level money was reallocated from capital cases to non-capital cases which helped eliminate the wait list. But he said there is now a wait list for lawyers in capital cases and warned that wait lists in non-capital cases could come back in New Orleans and in other districts.
Derwyn Bunton, who heads the Orleans Public Defenders office, said after the hearing that the fundamental problem remains with the public defender system. He said it relies too heavily on fines and fees from court cases and traffic offenses, which can vary greatly from year to year.
"We are always going to be vulnerable," he said.
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