Now in Legal Rebels:
Posted Feb 02, 2006 03:03 am CST
With no power and nearly all communications down, Johnson had no way to contact the group, many of them employees and their families who took refuge in the fortress-like Israel M. Augustine Criminal Justice Center, at Tulane Avenue and Broad Street, as the storm approached in late August 2005.
So he took the only route he could—by boat. Just before he arrived on Sept. 2, the group was moved by helicopter to drier quarters. But Johnson returned the next week, this time to help retrieve the court’s computers and servers.
“The captain’s got to get on the boat,” says Johnson, expressing his sense of duty toward the handling of his court’s data. Johnson had planned to seek shelter in the courthouse before Katrina hit, but he decided instead to evacuate his family to be with relatives near Baton Rouge.
Visiting the waterlogged courthouse that first weekend in September to assess the damage was a beginning, yet crucial, step in what promises to be a lengthy process of rebuilding the courts in New Orleans and the Gulf region. “The storm devastated us just like it did [the city],” Johnson says. “We had 9 feet of water on the ground floor. Our power systems were all destroyed.”
Now old records and evidence, stored on the ground floor, are undergoing restoration. “The evidence was salvaged and we are told that a lot of it will be recovered,” Johnson says.
Ethel S. Julien, chief judge of the Orleans Parish Civil District Court, which serves the city of New Orleans, describes a similar level of personnel disruption and infrastructure and data destruction. “After the hurricane, all of our judges were displaced and all of the staff,” she says. Near the end of 2005, some of her judges were still commuting from farflung locations in Massachusetts, Georgia and Mississippi. Some traveled daily, while others stayed in New Orleans during the week and returned to their temporary out-of-state homes on weekends.
Like so much of New Orleans, the ’50s-era civil district courthouse at Poydras Street and Loyola Avenue would have weathered the hurricane, but the flooding took its toll. Water filled the basement, where there were key court records, including mortgages and conveyances, and cherished historic documents such as land grants dating back to the 1700s from France and Spain.
Julien says that before Katrina, the court was in the midst of converting to a more modern computer system. Even though the conversion wasn’t complete, Julien says, enough work was finished that a remote location could be set up. “I don’t think the old system could have made the transition to the new place,” she says. “We had a company already under contract, so we were able to get them back here to set up and continue the process.”
Julien says many of the court’s records were salvaged, frozen and shipped away for restoration. Like Johnson, she is optimistic that most of the court’s most precious records will survive. But at least some, possibly a large portion, of the records and evidence may not survive. What that will mean for the pending cases in the system and the thousands of pretrial detainees scattered across the state is unknown.
“Every day I see somebody who isn’t supposed to be in jail,” says Phyllis E. Mann, a criminal defense lawyer based in Alexandria, La., who has worked tirelessly since the storm to chronicle the plight of and file habeas petitions for detainees evacuated from the coastal parishes hit by Hurricane Katrina on Aug. 29 and then Hurricane Rita on Sept. 24.
The survivors of Katrina often tell the same story: Although the oncoming storm scared them enough to evacuate, they expected to come back a few days later. They packed overnight bags believing that, in the worst case, within a few weeks all would be back to normal.
“Even though all my life I had heard that a hurricane would come and wipe out New Orleans, no one understood the magnitude of this disaster,” says Catherine D. Kimball, an associate justice of the Louisiana Supreme Court.
Kimball has an apartment near New Orleans, where her court is based. But her permanent chambers are in Baton Rouge, at the state’s First Circuit Court of Appeal. It was from there, in the hours and days after the storm, that she made it her mission to find judges from every affected court, keep them connected and get the courts operating as quickly as possible. “From the very first day, these courts wanted to go back to operating,” she says. “There was a desire for normalcy that was just overwhelming.”
But it will take time, money and commitment for anything like normal to return to New Orleans. Months after the hurricanes, if criminal and civil courts were operating at all, they were doing so at temporary locations and in borrowed space: briefly at the New Orleans Bar Association for eviction proceedings, the historic courthouse in Algiers for traffic and some other civil matters, the House of Detention for bonds and appearances, and even in the Greyhound/Amtrak bus and train station for municipal court matters.
To conduct day-to-day business and hold nonjury trials, many judges held court farther afield—80 miles away in Baton Rouge for some criminal proceedings and 60 miles away in Gonzales for civil proceedings. The 5th U.S. Circuit Court of Appeals left the state entirely for a time, basing operations out of the Houston chambers of Chief Judge Carolyn Dineen King.
Because of massive electrical problems, it will be April or May before the criminal courts can go back to their building at Tulane and Broad, Johnson says. Until then, Johnson is happy to at least be back in a real courtroom, even though his judges have to rotate in borrowed space they began occupying in mid-December at the U.S. District Court for the Eastern District of Louisiana. Slowly but surely, however, courthouse doors have reopened at their former locations. Some judges and clerks expected to be back in their own buildings and fully operational early this year. Others say it will be many more months before anything close to normal returns to court operations.
The New Orleans-based Louisiana Supreme Court returned on Dec. 5 to its home on Royal Street after spending the previous months operating on an emergency basis. Before the return, the court clerk’s offices had been housed in two trailers below the front steps of the Baton Rouge court of appeal building. Rather than close down its operations just for New Orleans and the areas affected by the hurricanes, the supreme court declared a statewide legal holiday and closed itself off to all but emergency appeals.
Chief Justice Pascal F. Calogero Jr. says the closure was necessary to toll legal deadlines as lawyers and judges painstakingly sorted out which cases were affected by the storms.
Well into 2006, damage assessment will remain an ongoing process in the Gulf region, where population shifts in hardhit sections may mean reduced services, including scaleddown court operations and fewer judges. Before spring, many expect the financial picture for the courts to be clearer—and the outlook bleak.
Financially, the courts are in a catch-22 scenario: To sustain operations, they need to generate fees from filings, court fines, traffic tickets and the like that most of the courts use in their budgets. To generate fees, they need to be in operation (along with the rest of the economy).
“Monetarily, I’m worried about the long haul,” Calogero says. While there have been significant layoffs in many courts, including about two-thirds of the support staff in the Orleans Parish Civil District Court, the courts were able to operate after the storm at some level under their current budgets—in some cases with the help of rainy day funds created during better times.
“More importantly, it’s a progressive problem,” Calogero says. Months without fines and fees, no traffic tickets, and no sure bailout from the Federal Emergency Management Agency lead Calogero and others to be concerned that the courts will not be able to remain financially solvent, even with drastically reduced operations.
Nowhere is this financial reality felt more acutely than in the Orleans Parish public defender’s office, which is supported almost entirely by fees collected from traffic tickets. With the region unable to enforce traffic regulations for nearly three months after the storm, an already financially struggling indigent defender system has taken a huge hit. Twenty-eight of 39 Orleans Parish public defenders were laid off.
This group was already operating under a crushing caseload: In addition to being responsible for 17 different courts, these public defenders often represented 300 to 400 clients at any given time, Mann says. “Now that’s basically quadrupled,” she says. “If we started with zero, perhaps 11 public defenders could handle [cases] going forward. But there’s this tremendous backlog.”
The layoffs and exodus of licensed attorneys from the area pose a particular challenge for Mann and other criminal defense lawyers who are trying to find representation for the estimated 8,500 detainees evacuated from the region. By year’s end, Mann says, her network had filed habeas corpus petitions for 2,100 of the detainees, most of them selected because they had already served their full sentences or were in jail for minor offenses that would qualify them for low- or no-bond release.
Mann continues to face criticism for pushing habeas petitions and trying to get these cases back on the radar. “Everybody keeps saying, ‘You’re making a mountain out of a molehill,’ that there’s no problem,” Mann says. She is being told prisoners will be returned to New Orleans and they will get lawyers. “It’s been four months and it’s not happening,” she says.
Orleans Parish prosecutors, she adds, have “still not made charging decisions on people arrested before the storm. The failure to make those decisions is causing people just to sit there.” And that, predicts Mann, will cause more problems for the courts as those inmates begin filing pro se petitions. “I think if things don’t get moving, we’ll see more federal litigation,” she says.
Johnson, plodding forward as best he can, prefers to see the situation as an opportunity. “The public defender system is now truly devastated,” he says. “It was more than a stretch before. Now it’s an absolute impossibility.”
The indigent defender system, at least in New Orleans, needed to be re-created, Johnson says, and he has appointed legal clinic professors from Tulane University and Loyola University New Orleans to propose the development of a model system. “I’m hoping that, by all of the attention placed on this, national entities will come to pass and come to town and create a model public defender office and a way of funding it,” he says. “This is a golden opportunity for us to do what we should have done decades ago.”
This isn’t the only opportunity that reform-minded individuals are seeing. New Orleans has long been criticized for maintaining unnecessary, duplicative services. The problems extend to the judicial system.
“There are some areas where we’ve had more judges than we’ve needed. Other areas where there are fewer than needed,” says Chief Justice Calogero. “Solving that politically would have been impossible, … [but] with New Orleans evacuated,” he says, change is now necessary. “One of the things we’re looking at for sure, notwithstanding constitutional protections, is reducing the size of [the judiciary] by not permitting judges to run for reelection except where [the judge’s seat is] supported by the population,” Calogero says.
Until those systemic changes are made, most judges are focusing on picking up the pieces.
Traffic Court Judge Paul Bonin has seen his popularity among detainees and their families increase since Katrina threw his beloved city and courts into turmoil. Despite a prestorm order that Bonin says should have released all traffic prisoners and municipal inmates from jail, they weren’t released.
Bonin says he and other judges spent those early poststorm days trying to locate the evacuated detainees and free them from places such as the Louisiana State Penitentiary in Angola. It took more than a month to get them all out of the state prison system, he says. Mann says that at one point, the state department of corrections was releasing these inmates at a rate of 35 per day.
In the midst of that crisis, Bonin says, the court was focused on resuming operations, partly because judges appreciated the importance of their role in municipal operations. On top of funding court activities and indigent defense, traffic tickets and fines supplement the city budget. And as one councilwoman stated during a November budget hearing, traffic courts are needed to let the public know that there is law and order on the streets of New Orleans. “We’re going to do our part to get this city back up,” Bonin says.
Those grappling with assessment and rebuilding efforts express optimism that New Orleans in particular will rebuild, while at the same time revealing a sense of foreboding and fatigue.
While rumors abound that courts won’t be able to accommodate jury trials until 2007, some judges and clerks of court expect to be ready for voir dire by early 2006. “We have people living in New Orleans,” Chief Judge Johnson says. The potential problem is that it’s not the same New Orleans that existed when the cases or charges were filed. “The people there may not be a jury of their peers, as New Orleans is a city where [prestorm] 70 percent of residents were black,” Johnson says. “Now it’s 95 percent white.”
Some observers expect criminal defense lawyers will argue defendants can’t get a fair trial in New Orleans because the jury pool has changed. But the juryoftheirpeers argument fails to persuade Johnson. “You can only get a jury from the people who are present,” he says.
Indeed, much of the courts’ rebuilding effort depends upon whether and how quickly New Orleans and the metropolitan area will rebound. In one discouraging set of findings, Louisiana State University economists Loren Scott and James Richardson issued a report on the state’s economic outlook and the impact of hurricanes Katrina and Rita. While predicting that Louisiana would operate in a “recession-free” environment, they reported that prestorm projections for a growing economy were trashcan material. Rather than grow by 18,000 jobs, the report predicted, employment in New Orleans would drop from 2004 levels by 278,900 jobs, and the state may lose a congressional seat.
“In effect, our estimates suggest that Katrina and Rita wiped out about 11 years of employment growth in Louisiana,” Scott and Richardson said in the report. And without jobs, people and housing, a stable jury pool will be difficult to come by. When asked when she thinks the courts will be fully operational, Mann predicts December 2006. Noting that mail service only returned to much of New Orleans in December 2005, Mann says notices can go out, “but no one’s home.”
“There is nothing approaching a stable population in New Orleans that you can even attempt to draw a jury from,” she says. “Many of the people who are back are critical to the rebuilding effort.” Those are people who Mann says would likely be excused from jury service.
In nearby Chalmette, which is in St. Bernard Parish just east of New Orleans, population issues surely will change the area’s civil and criminal justice needs. By early December the parish clerk’s office was up to about 50 percent of its staffing levels, and clerks were back to sitting on real chairs at real desks. That was a huge improvement over the weeks before, when the clerks were operating out of the courthouse lobby on folding chairs, banquet tables and borrowed computers.
After the levees broke, that lobby held at least 3 feet of water. As many as 500 people, including judges, deputies, prosecutors and courthouse staffers, had sought shelter in the solid Art Deco building. As the water poured in, they sought higher ground, up onto the wide staircase and to the second-floor offices. During the ordeal, the group witnessed two deaths, a birth and a wedding performed by then-Chief Judge Manny Fernandez of the 34th Judicial District.
There were fewer evacuees at the courthouse before and during the storm, but once the levee breaches filled the streets with water, Fernandez says, “people started coming up in boats, washtubs, anything they could get ahold of.” With no power, no working toilets and about 6 feet of water on the courthouse lawn, the conditions weren’t pleasant. And the records room filled with 7 to 9 feet of water.
During a walk through her offices, Chief Deputy Clerk Lena Nunez pointed to empty shelves that had been filled with soggy documents. Some of the records and books had been on tables anchored to the floor, but they were sent tumbling when standing water caused the tabletop veneers to separate and float away. The only telephone number for the office, which operated from 10 a.m. to 2 p.m., was a personal cell phone. Clerks commuted in or were housed in FEMA trailers and made trips twice a week to the Covington post office nearly 60 miles away to pick up filings.
Nunez says court business is way down, and while she expects to increase her staff by one or two employees, she predicts her office will be operating at no greater than 60 percent for some time. Jury trials are a distant goal, with Fernandez envisioning them by mid- to late 2006.
Fernandez, whose four-month-old home in the village of Yscloskey was gutted by the storm, also expects big changes in how the court serves a new and rebuilding St. Bernard Parish, which had nearly 70,000 residents before the storm. But he says a smaller population may not necessarily mean a smaller court.
“I can also see, especially for a number of years, a litigation explosion,” he says. He expects the courts to be busy with homeowner claims, oil spill litigation, and any number of issues relating to the storm and rebuilding.
Even in Jefferson Parish, which received relatively light damage to its infrastructure, getting back to normal is proving more difficult than many expected.
At the Jefferson Parish courthouse in Gretna, just across the Mississippi River from New Orleans’ handsome Garden District, Clerk of Court Jon A. Gegenheimer points to water stains on his office walls where wind shear blasted around the edges of the glass windows as Katrina passed over the building. The 1958 green-glass-and-steel structure made it through the storm with only minor damage: water on the first floor and fewer than a dozen broken windows. The new modern courthouse next door, where the courts are gradually moving, sustained no visible damage.
Unlike in neighboring Orleans Parish, Jefferson Parish had begun the tedious process of scanning records and creating electronic databases in 1992. About two years ago, clerks started transferring title abstracts and land records to electronic formats, and got as far back as the late 1960s. Electronic records, server backups and microfilm were stored off-site in redundant locations. Gegenheimer’s office began offering e-filing in June. So as soon as electricity was restored to the parish, much of the clerk’s operations were online. Indeed, Gegenheimer reports, there was “virtually no interruption” in services.
Despite those steps, the magnitude of the storm simply overwhelmed the court system. “We have taken a big hit financially,” he says, estimating that income for the court, funded largely through filing fees but also from the parish budget, was down in September and October by $1.3 million from the $17 million expected for the year. The courthouse was unable to accept in-office filings for six weeks.
“The whole month of September, this place was virtually a ghost town,” Gegenheimer says. But he didn’t resort to layoffs. He avoided handing out pink slips in part because 40 members of his support staff were displaced by the storm and didn’t return to work. Also, for the first time ever, he required employees to contribute 20 percent of the cost of their health insurance.
Gegenheimer knows that if the economy doesn’t revive, his community may be in real trouble. He is hopeful he will get FEMA grants or loans to relieve some of the financial pressures.
Yet even government assistance won’t help get jury trials, especially for criminal cases, back under way in Gretna. Like New Orleans, though to a lesser extreme, Jefferson Parish needs to have not only a population from which to pull a jury, but also witnesses, defendants and their lawyers in court to resume trials.
By the beginning of this year, most of the 480,000 people who lived in Jefferson Parish before Katrina were expected to have returned. In late 2005 Gegenheimer sent out jury service notices, though he nearly doubled the call from 600 to 1,200 notices in hopes of pulling 120 residents for duty.
Gegenheimer says that by the end of December, the clerk’s office was about 85 percent operational. “In another six months, I think we’ll be back in full operation,” he says. “Then we face the next hurricane season beginning June 1.”
Meanwhile, witnesses, victims and defendants who aren’t in jail were scattered across the U.S. And though FEMA promises to pay for witnesses to return for trials, the tricky part is locating them. Courts have established toll-free numbers for witnesses and defendants to call in.
Jefferson Parish District Attorney Paul Connick Jr., whose office had a skeleton crew running within four days of Katrina, has begun to identify and prepare at least 50 cases for trial and to reset court dates postponed because of the storm. As cases are readied, the idea is that criminal defendants who were moved to detention facilities outside of the region will return to the Gretna jail.
By November, the jail was ready to accept detainees, but as of late December the facility, which can house 1,300 inmates, was empty. Why? Because in order to hold detainees, it needs a contract with a local hospital. For most jails in the area, that was the now-shuttered Charity Hospital, which maintained a separate and secure ward for prisoners. A proposal to decentralize indigent and prisoner care from a single hospital system to local and regional hospitals scattered throughout the parishes is now being explored.
Meanwhile, Connick’s office has been busy with new cases—more than 270 looting cases alone—and cleaning house by getting rid of old cases that should have been dismissed long ago. It also has been asked to assist the state attorney general in dealing with the huge influx of habeas claims. “You plod through it, do what you are able to do,” Connick says. But he also feels a sense of urgency to get the courts functioning again.
“Without the criminal justice system, no matter what you do, you’re going to have total chaos,” Connick says. “You have to have law and order.” That’s why he and so many other prosecutors, judges, lawyers and court system employees have been dedicated to the rebuilding effort.
Just after the storm, Connick was on a ride along with the police, and he recalls how eerie it was in New Orleans. There were no lights in the city as helicopters, filled mainly by news crews with spotlights, buzzed overhead.
“It was just creepy driving through the French Quarter,” he says. He had a feeling that the “bad guys” could easily take advantage of the situation, knowing there were no courts and that the police wouldn’t be able to handle them. He wanted to be sure wouldbe criminals got the message that they couldn’t take over.
“That’s why it was important for us to raise the flag on top of our building so we could say, ‘We’re ready to go,’ ” Connick says.