One judge observed that, while a retained attorney will begin investigating a case and negotiating for dismissal or a plea early on and before institution of prosecution, all of this time is lost for an indigent client because there is no investigation or negotiation until after arraignment.

Study rips defender office

Balfour calls report inaccurate
  • Advocate Acadiana bureau
  • Published: Jun 17, 2010 – Page: 1BA

LAFAYETTE — A report to be released today criticizes the 15th Judicial District Public Defender Office for allegedly operating with little to no coordinated management to ensure that indigent clients are receiving effective representation.

The Louisiana Public Defender Board hired the National Legal Aid & Defender Association to conduct an evaluation of the office last year after the ACLU complained of heavy attorney caseloads and the office’s sparse use of investigators in cases.

Researchers with NLADA conducted an on-site evaluation of the office’s operations in Lafayette, Vermilion and Acadia parishes in September.

The findings in the 50-plus page report include:

  • Fifteenth Judicial District Defender David Balfour is operating without an official contract with LPDB and is instead working under an arrangement that allowed him to hire himself and determine his own salary as an administrator and a limited felony public defender.
  • Nearly half of the office’s contracted attorneys carry indigent caseloads considered excessive by national standards before factoring in their private caseloads, which are not tracked by the office.
  • Attorneys operate under a flat-fee contracting system that pits their financial interests against the interests of their clients.
  • New attorneys are thrown into court with little training and there is no structure in place to assess an attorney’s performance.
  • Access to investigators —while changing — has been virtually non-existent during Balfour’s tenure as district defender.
  • Many misdemeanor defendants can allegedly go unrepresented despite the fact that some face possible jail time.
  • Defendants are likely to be  represented by as many as three or four different attorneys during the course of a single case.

Balfour has described many allegations in the report as an “insult and a hatchet job.”

Balfour said the report contains numerous misrepresentations and factual inaccuracies about office operations that call into question its validity.

The report acknowledged that many of the office’s attorneys are “very experienced, talented and highly regarded.”

“Yet the level of service provided by any individual attorney within the IDO (Indigent Defender Office) is simply serendipitous and not the result of any plan by the IDO to ensure their ability to provide constitutionally required effective representation,” the report states.

“I think it’s fair to say that the system operates with very little oversight and supervision and I think that is a critical failure of the system,” said David Carroll, NLADA director of research and evaluation.

Balfour found fault with the report’s alleged misrepresentations of the office’s policies regarding caseload, conflicts of interest, defense in death penalty cases and probation revocations.

He said he is proud of the work he has been able to accomplish in his more than 28 years as a public defender. There are some things that could be improved but those require money, which has always been in short supply.

Balfour said he has been talking with LPDB Chairman Frank Neuner about possibly resigning from the post later this year and remaining on as a felony public defender.

However, he said that decision has “absolutely nothing to do with the report.”

“I just want to slow down,” Balfour said.

LPDB Chairman Frank Neuner said Balfour’s decision is acceptable to the board and could be effective in the next 60 to 90 days.

A selection process would then begin to find his replacement, Neuner said.

Carroll said blame is shared with Balfour’s office and with LPDB. But the board deserves a larger share because it has yet to implement many of the standards laid out in Act 307, which established LPDB in 2007 and charged it with supervising, administering and delivering a uniform statewide public defender system.

For example, the board has failed to get the state’s district defenders under contract, Carroll said.

In a statement, LPDB said at the root, all of the problems in the report are the result of chronically inadequate funding for public defense.

Local offices lack the resources required to comply with national and state standards. The 15-person state agency also lacks the capacity to adequately tend to and complete all of its statutory mandates, such as supervising the 42 district public defender offices, according to the statement.

Neuner said the board is working to sign district defenders to a contract, a process he hopes is completed by September.

This would clear up the first of five recommended changes included in the report.

The other changes include creating and implementing attorney qualification and training standards; requiring district defenders in populous jurisdictions to work full-time; and issuing policies and providing training to districts regarding the proper use of investigators.

“It certainly provides us, the board, with a roadmap of things we should do first and foremost,” Neuner said of the report.

Calcasieu to stop taking indigent cases

  • Advocate Acadiana bureau
  • Published: May 29, 2010 – Page: 2BA

The Calcasieu Parish Public Defenders’ Office will stop accepting new indigent defense cases starting Aug. 1.

The moratorium will remain in effect until the office workload conforms to standards and guidelines established by the Louisiana Public Defender Board, District Defender Mitchell Bergeron wrote in a May 25 letter to 14th Judicial District Chief Judge Robert Wyatt.

“While this has been a difficult decision, it is a necessary one,” Bergeron wrote.

The state of Louisiana, the Louisiana Public Defender Board and Bergeron are all named defendants in a pending class-action lawsuit claiming indigent defendants are being denied their constitutional right to effective counsel because of the lack of adequate funding.

The suit originally was filed in 2004 in Calcasieu Parish, moved by the 3rd Circuit Court of Appeal to the 19th Judicial District in Baton Rouge, stayed to allow the state to address the funding issue, and reopened in 2008.

As a result of the continued lack of funding, the Calcasieu office is “unable to carry out even the most basic functions of legal representation, such as properly conferring with clients, engaging in substantive investigation of cases, reviewing client files, securing witnesses, and preparing for hearings and trials,” Bergeron wrote of the allegations.

The letter stated that attorneys in the office have caseloads that are 2 to 2&permil times higher than those set by the Louisiana Standards on Indigent Defense.

John F. DeRosier, 14th Judicial District Attorney, said he does not agree with those figures and believes the Public Defender Office is not nearly as overloaded as they say they are.

“Our numbers show far fewer cases and defendants,” DeRosier said.

He said his office is conducting its own study to determine caseload levels. He said he believes his attorneys have the same number of cases as the public defenders, anywhere from 350 to 450 felony cases per prosecutor.

The caseload for Calcasieu public defenders, however, ranges from 661 to 2,794, according to an October 2009 site visit by the LPDB.

State Public Defender Jean Faria said they hope to sit down with the District Attorney’s Office to go through all the cases to determine the status of each case in an effort to develop a true case count.

Bergeron wrote that the decision to stop taking cases is partially based on the fact that he is unaware of any statute or case that provides him or his attorneys with either limited or absolute immunity from civil liability.

“Thus, prudence would seem to require me to take some remedial action as a precautionary measure,” Bergeron wrote.

Bergeron said he is providing 60 days’ notice to allow for those affected to help address the issue.

Bergeron was unavailable at his office on Friday afternoon for additional comment.

Wyatt said Bergeron’s letter did not come as a surprise.

He said the district is working to address and evaluate the situation and is “going to take whatever action we can.”

Wyatt said he would have to start appointing members of the local bar to take cases if the issue is not resolved by Aug. 1.

“That’s the last resort,” he said.

Wyatt said the U.S. Bureau of Justice Assistance is conducting a study of the district to determine ways to improve the district’s high criminal caseload.

He said he hopes the bureau will be able to help them revamp the system to make it operate more efficiently.

The district has a “multitude of little things that can be done to make it more efficient.

The old way of doing business is not working with the volume we have now,” Wyatt said.

Meanwhile, Frank Neuner Jr., chairman of the Louisiana Public Defender Board, said he found out Thursday night that the House Appropriations Committee stripped $5 million of a proposed $6.6 million increase for the LPDB out of House Bill 1.

The increase would have lifted LPBD’s budget from $28 million to about $34.6 million, he said.

Neuner said more than $1 million was going to assist Calcasieu Parish.

“That money would have allowed us to hire more people and take care of the backlog of cases,” Neuner said.