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Inside NOLA public defenders' decision to refuse felony cases

Defenseless 13:25
  • How do 50 lawyers handle 22,000 cases? They can’t. New Orleans public defenders say the criminal justice system needs urgent reform.
  • New Orleans public defenders admit they’ve not been able to adequately represent all their clients and innocent people have gone to jail.
  • “A lawyer poorly resourced can cause irreparable harm to a client,” says Chief NOLA Public Defender Derwyn Bunton.
Nine current and former New Orleans public defenders admit they do not have the time or the budget to adequately represent every client. CBS News

In the past year hundreds of people accused of crimes in New Orleans have been stuck in jail — defenseless — denied their constitutional right to a lawyer.

It’s happening because the city’s public defenders, attorneys who are supposed to represent those who can’t afford private lawyers, have been staging a kind of protest. They say they are so overworked and underfunded, they don’t have the time or resources to defend their clients properly, so they have been refusing to represent people charged with some of the most serious crimes – rapes, robberies, and murder. 

The man who made this startling decision is the chief public defender Derwyn Bunton. He says he didn’t have a choice because the criminal justice system in America is so broken, it’s become just a criminal processing system.

New Orleans Chief Public Defender Derwyn Bunton CBS News

Anderson Cooper: What does that mean, a processing system?

Derwyn Bunton: Think about “I Love Lucy.” They have that, that famous scene where she and Ethel are trying to wrap chocolates. And their job is grab the chocolates, and wrap ‘em, then get ‘em back on the conveyor belt. Our criminal justice system has become something of a conveyor belt that starts with you arrested. And then there’s hands that touch you on the way to prison. It is not about figuring out at any point your innocence. Should you even be on this conveyor belt, no matter what you did?”

“You do your best, but a lot of times you can’t provide the kind of representation that the Constitution, our code of ethics and professional standards would have you provide.” Derwyn Bunton

Anderson Cooper: That’s a pretty frightening picture you paint. I mean, that’s not a justice system. That’s a system sending people to prison.

Derwyn Bunton: And that’s what we’re fighting to change.

Derwyn Bunton has been head of the New Orleans Public Defenders’ office for the last eight years. The 52 lawyers on his staff are responsible for representing more than 20,000 people a year who are unable to afford a private attorney.

Anderson Cooper: How do 50 attorneys handle 22,000 cases?

Derwyn Bunton: You do your best, but a lot of times you can’t provide the kind of representation that the Constitution, our code of ethics and professional standards would have you provide.

It was a year ago in January, that Bunton announced his public defenders would no longer take on any felony cases in which defendants were facing a possible life in prison. That left hundreds waiting in jail without lawyers.

Anderson Cooper: Isn’t having a busy public defender better than languishing in jail without any kind of attorney?

Derwyn Bunton: No. No. A lawyer poorly resourced can cause irreparable harm to a client.

Ordinary injustice and mass incarceration 00:40

We sat down with nine current and former New Orleans public defenders who all admit they simply do not have the time or the budget to adequately represent all their clients.

Anderson Cooper: How many of you believe that an innocent client went to jail because you didn’t have enough time to spend on their case?

Anderson Cooper: All of you. You feel you’ve all had that experience?

Brandi: We simply don’t have the time. We don’t have the money. We don’t have the attention to be able to give to every single person.

It’s not for lack of skill. Sarah Chervinsky went to Yale and won an award for best young trial lawyer in the country.

Sarah Chervinsky: A lot of us went to law schools with good criminal defense you know clinics. We come into this job being told, like, “Here’s what you do to investigate. Here’s how often you visit your client.” And as soon as you start working you realize the gap between what you should be doing and what you can do.

Stephen Hanlon:  It’s unethical, it’s unconstitutional. The judges know it, the prosecutors know it, the bar association knows it and it has to come to an end.

Over a year in jail with no lawyer 03:25

Stephen Hanlon is general counsel for the National Association for Public Defense. He’s just concluded a study in conjunction with the American Bar Association finding Louisiana public defenders are handling nearly five times as much work as they should.

Anderson Cooper: Each public defender is doing the work of what five public defenders…

Stephen Hanlon: That’s exactly...

Anderson Cooper: …should be doing?

Stephen Hanlon: ...right.

Anderson Cooper: Would any other profession be asked to work this kind of a load?

Stephen Hanlon: If obstetricians had five times as much work as they could handle competently, if airline pilots had five times as much work as they could handle competently, terrible things would happen.

Anderson Cooper: It wouldn’t be allowed. I’m mean there are strict regulations.

Stephen Hanlon: Of course it wouldn’t be allowed.

Anderson Cooper: Public defenders have people’s lives in their hands, just like airline pilots or doctors?

Stephen Hanlon: They have people’s lives in their hands, they have people’s liberty in their hands. They have their whole future in their hands.

Donald Gamble, left, and Anderson Cooper CBS News

Donald Gamble knows what it’s like to have your future rest in the hands of a New Orleans public defender. In February 2015, he was out celebrating Mardi Gras in this neighborhood, when the police pulled up….

Donald Gamble: The detective he just jumped out and he was like, “Donald Gamble, you’re under arrest, and…”

Anderson Cooper: Did they tell you what you were under arrest for?

Donald Gamble: Yeah, he said, “you’re under arrest for two counts of armed robbery.”

A man with a gun stole two women’s purses. The robber was recorded fleeing by security cameras and a witness identified 26-year-old Donald Gamble. His bail was set at $300,000. Unable to afford a private attorney, Gamble was assigned a public defender.

Booking photo of 26-year-old Donald Gamble in 2015.

Anderson Cooper: Did you have confidence in your public defender? Did you ever feel like, “OK, she’s really investigating. They’re really on it?”

Donald Gamble: I never once really felt that she was making progress. I could tell, every time I would interact with her she just seemed busy, rushed. She seemed overworked.

Gamble had some prior nonviolent offenses on his record, but now found himself facing possible life in prison. Even so, court records show that for more than 10 months his case went nowhere.  

Gamble was locked up in a jail that was recently cited by the Department of Justice for its violence and inhumane conditions.

Anderson Cooper: Did you have problems in jail?

Donald Gamble: Yes.

Anderson Cooper: What happened?

Donald Gamble CBS News

Donald Gamble: As you can see, I’ve got my front teeth knocked out. And I’ve had stitches.

Anderson Cooper: So, you got attacked more than once?

Donald Gamble: Absolutely. Yeah.

To protect himself, he says, he got a homemade knife which was confiscated by authorities. Lindsay Samuel was Gamble’s public defender. She told us she couldn’t spend much time on his case because she was already struggling to represent nearly a hundred men facing life in prison. Nearly a year after Donald Gamble was arrested, Samuel quit her job.

Anderson Cooper: Why’d you leave?

Lindsay Samuel: You know feeling like you’re always coming up short. Um, you know, the first 1,000 clients, you feel terrible. The second 1,000 clients, you feel awful. The third 1,000, 3,000 in, it doesn’t feel so bad anymore. One morning I woke up and I just felt like, “I’m not even angry about this anymore.” It’s just everyday to me. Everyday my clients are going away for a decade. And I just move along to the next client.

Pamela Metzger, a constitutional scholar and Tulane law professor CBS News

Samuel left just as the public defender’s office started refusing cases. That meant Donald Gamble, stuck in jail, had no one representing him. But surprisingly, that turned out to be a good thing. A judge appointed Pamela Metzger, a constitutional scholar and Tulane law professor, to advise him – and six other men on their Sixth Amendment right to legal counsel. Metzger argued that if the state couldn’t provide the men with effective representation, they should all be released immediately.

“The cost of not having a good public defender is not just to the defendant. It’s to the victims and it’s to all the future victims.” Pamela Metzger

Anderson Cooper: Some of these men were charged with very serious crimes.

Pamela Metzger: Rape, murder, armed robbery.

Anderson Cooper: You live in New Orleans you have a family here.

Pamela Metzger: Yep.

Anderson Cooper: Do you want them back on the street?

Pamela Metzger: I want to live in a city where the Constitution matters. And I want to live in a city where everybody knows that if you get arrested, you’re gonna have a lawyer and you’re gonna have a lawyer who represents you properly.

When Metzger investigated Gamble’s case, she examined security camera footage and realized Gamble didn’t fit the robber’s description. CBS News

Pamela Metzger’s job wasn’t to disprove the charges against Donald Gamble, but as soon as she started looking at the case file she says she realized the eyewitness who identified Gamble was unreliable. Then she took the time to examine those security camera recordings of the robber. When she studied them closely, she realized, Gamble didn’t fit the description at all.

Pamela Metzger: I noticed the pants and there’s a flat, wide cuff to the pant.

Anderson Cooper: Uh-huh.

Pamela Metzger: The pant cuffs are swinging as this person runs.

These are the pants police said Donald Gamble was wearing during the robbery.

Anderson Cooper: These are tight on the bottom?

Pamela Metzger: These are old-school sweatpants that are elasticized bottoms. See right there?

Anderson Cooper: Uh-huh.

Pamela Metzger: That straight line?

Anderson Cooper: Right.

Pamela Metzger: It’s impossible for those pants to have made that.

Anderson Cooper: As soon as you saw that you knew?

Pamela Metzger: As soon as I saw that, I knew.

Anderson Cooper: How many hours did it take you to determine they had the wrong guy?

Pamela Metzger: They don’t have four to five hours. They don’t. They don’t have four to five hours.

Days after reviewing the case, Pamela Metzger presented the evidence including the security camera videos to the judge.

Pamela Metzger: I got a call at home that night from the district attorney saying

we’re dropping it. And the paperwork was filed the next day.

Last June, after 16 months in jail, Donald Gamble was freed. He left for Houston immediately to live with his grandmother.

Donald Gamble: Good to see you. You look so good.

Grandma: You do too baby.

Donald Gamble: You look so good. You looking young, girl.

Back at home there was relief and disbelief.

Donald Gamble: You see I got my teeth got knocked out?

Grandma: That’s pathetic.

Donald Gamble: It’ll be alright.

Grandma: It’s time for you to have some good luck.

Anderson Cooper: To someone watching who says, look, it’s unfortunate that some innocent people end up in jail but no system is perfect and it’s the cost of doing business to keep people safe.

Pamela Metzger: We didn’t keep people safe. We put Donald Gamble in jail. The wrong man. And let the actual robber out on the streets for 16 more months. Who knows how many other people he robbed? The cost of not having a good public defender is not just to the defendant. It’s to the victims and it’s to all the future victims.

Gamble, who was arrested again last month for disturbing the peace, had always insisted he was innocent of the robbery. But told us he was so scared in jail he considered pleading guilty.

Anderson Cooper: You were facing potentially life in prison?

Donald Gamble: Yes.

Anderson Cooper: If your attorney had been able to get a plea bargain, for say, five years. Would you have taken it?

Donald Gamble: Absolutely. If you ask yourself that same question, would you rather five years or 99 years.

Anderson Cooper: You would have pled guilty to something you didn’t do?

Donald Gamble: Most definitely.

That doesn’t surprise Derwyn Bunton, the city’s chief public defender. He says their clients know they don’t have the time and money to mount a rigorous defense at trial, so often decide to take plea deals -- even if they aren’t guilty.

Derwyn Bunton: People are pleading guilty to crimes they didn’t do.

Anderson Cooper: All the time?

Derwyn Bunton: All the time.

Anderson Cooper: This is not just an isolated thing here and there?

Derwyn Bunton: This is not isolated. This is a system that has grown so large without any counterbalance that it has produced the highest incarceration rate in the world.

Anderson Cooper: And you’re supposed to be that counterbalance?

Derwyn Bunton: That’s exactly right.

To illustrate his point, Bunton took us to this warehouse where the public defenders’ cases from the past decade are stored.

Anderson Cooper: About how many cases are there here?

Derwyn Bunton: It’s roughly about half a million.

Anderson Cooper: And how many pled guilty?

Derwyn Bunton: You’re probably looking at somewhere between 90,95 percent.

Anderson Cooper: Ninety-five percent of these people were guilty?

Derwyn Bunton: Well, they pled guilty.

Anderson Cooper: I think people who haven’t been in the system find the notion that somebody would plead guilty to something in a plea deal that they didn’t actually do hard to imagine.

Derwyn Bunton: Say you’re, you’re picked up for something you didn’t do and you’re placed in jail. Jail is a terrible place to be. And you find out, through your public defender that if you plea to this, maybe it’s this lesser thing, maybe it’s guilty as charged, you’ll get out today. People will take that plea because they want to get out of jail.

“Here, we have a criminal justice system, stories of innocence throughout and profound. And we still haven’t had the urgency that I think we need to reform it so that we don’t destroy lives. Because make no mistake, we’re destroying lives.” Derwyn Bunton

But plea deals, Bunton says, often lead to serious consequences when someone has a criminal record.

How to fix public defense 00:34

Derwyn Bunton: Louisiana is a state that has a lot of misdemeanor multiples as we call them. That means if you get one misdemeanor is the misdemeanor. A second one turns it into a felony.

Anderson Cooper: So if you’re arrested on a misdemeanor and then a couple months later it happens again that becomes a felony?

Derwyn Bunton: That’s right. The second time it’s a felony. And the penalties increase for each subsequent time that you’re caught.

These public defenders say they see harsh sentences based on prior felonies and misdemeanors all the time.

Barksdale: I had a client who’s doing 20 years for stealing a flat of soda that was worth less than a $100.

Kenneth: I have a client that was sentenced to 17 years for half an ounce of weed. No crimes of violence in his past.

In recent months the public defender’s office here has gotten some relief. The state of Louisiana and the city of New Orleans have come up with more money and Derwyn Bunton has hired nine additional attorneys. But he insists he’ll continue to turn away cases until he can ensure every client gets the defense they deserve.

Derwyn Bunton: Here, we have a criminal justice system, stories of innocence throughout and profound. And we still haven’t had the urgency that I think we need to reform it so that we don’t destroy lives. Because make no mistake, we’re destroying lives.

Anderson Cooper: And you don’t want to be part of it anymore?

Derwyn Bunton: We’re not gonna be complicit in that kind of injustice. No, we’re not gonna do it anymore.

Produced by Denise Schrier Cetta. Megan Kelty, associate producer.

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