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State V Covington Louisiana Supreme Court
Statement of Stephen F Hanlon
Expert Witness for East Baton Rouge Chief Public Defender Michael Mitchell
State v Covington, Louisiana Supreme Court
Docket No. 2020-KK-00447
On Tuesday, October 20, 2020, at 9:30 a.m. CST, the Louisiana Supreme Court heard oral arguments in State v. Covington, a case that had the potential to significantly reform not only Louisiana’s public defense system, but also the entire criminal justice system in Louisiana.
Louisiana public defenders have the capacity to ethically handle only 21 percent of their workloads. They can no longer ethically represent the clients in the remaining 79 percent of their workloads. The question to the Louisiana Supreme Court in this case is: What should be done with the cases in the remaining 79 percent of the Louisiana public defenders’ workloads?
In this case, we have presented a detailed plan to the Louisiana Supreme Court to remedy Louisiana’s longstanding, systemically unconstitutional and unethical criminal processing system over the course of five years.
Proceedings in the Trial Court
This case was tried in Baton Rouge in June 2019. East Baton Rouge Chief Public Defender Michael Mitchell asked the trial court to allow his appointed public defenders to withdraw from existing cases and decline representation in future cases because those lawyers were carrying so many cases that there was a significant risk that they could not be competent and effective for all of their clients, as required by the Louisiana Rules of Professional Conduct that apply to all Louisiana lawyers.
The trial court denied Mr. Mitchell’s request for relief, signing a proposed order that had been submitted to the court by the prosecutor, including all of the prosecutor’s typographical errors.
Proceedings in the First Circuit Court of Appeal
On March 13, 2020, the Louisiana First Circuit Court of Appeal reversed the trial court and held that Mr. Mitchell had presented sufficient evidence to the trial court to demonstrate that his appointed public defenders cannot effectively and competently represent their clients in a manner consistent with their constitutional and ethical obligations due to their excessive caseloads.
Central to the First Circuit’s ruling were the Louisiana Rules of Professional Conduct, which are identical to the American Bar Association (ABA) Model Rules of Professional Conduct, which are in force in almost every jurisdiction in America. Those rules flatly prohibit lawyers from representing more clients than they can competently represent. Those rules have been in place in every state in America for the last 50 years. Until now, with rare exception, they have been systemically ignored for public defenders working in criminal courtrooms in Louisiana and all over America.
For the first time ever a public defender has presented reliable data and analytics to the court to support his claim of excessive caseloads: a study conducted by the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants (ABA/SCLAID) and Postlethwaite and Netterville (“P&N”), a “Top 100” accounting and consulting firm in the nation, called The Louisiana Project. That study concluded that Louisiana public defenders have the capacity to handle only 21 percent of their workloads with reasonable competence and effectiveness.
Based on that study and other evidence, the First Circuit directed the trial court to allow East Baton Rouge public defenders to withdraw from their lower risk cases and to decline future representations until their workloads are no greater than 100% of their annual capacity, as determined by The Louisiana Project.
The First Circuit also directed the trial court to give priority to the most serious offenses before it, and those in which defendants are unable to seek or obtain bail, even if that means that other cases are continued or delayed because of the state’s failure to appoint counsel who can meet the ethical and constitutional standards required of all lawyers, including public defenders.
But beyond such continuances and delays for criminal cases representing 79% of the Louisiana public defenders’ workloads, the First Circuit gave no further direction or guidance. The Louisiana Supreme Court, unlike the First Circuit, has a duty under the Louisiana Constitution to give such direction and guidance to the lower courts in Louisiana, and we have asked it to do so in this case. (See below).
The state in this case produced no expert testimony to contradict the conclusions of The Louisiana Project. The methodology used in that study was developed by the RAND Corporation in the 1960s and has been peer reviewed and reliably employed across a diverse array of industries and professions, including the legal profession, for over a half century.
Thus, the unrebutted evidence in this case established that the Louisiana public defense system currently has the capacity to handle only 21 percent of its workload with reasonable competence and effectiveness. Until the Louisiana public defense system has the capacity to handle 100% of its workload with reasonable competence and effectiveness, Louisiana public defenders can only ethically and constitutionally represent some of their clients charged with murder and other serious felony cases, and no others.
In briefs in this case, the state advised the Louisiana Supreme Court that the First Circuit’s ruling “carries extremely significant ramifications…” The state continued: “Covington for certain will impact thousands of indigent defendants… Covington could impact all trial courts, public defenders, and prosecutors in the State of Louisiana… Covington affects our society.”
Covington will indeed significantly affect our society, particularly that part of our society known as Louisiana’s and America’s criminal processing system.
Proposed Remedy to Louisiana Supreme Court
In this case, we are asking the Louisiana Supreme Court to fashion a statewide, tailored, phased-in remedy to bring an end to Louisiana’s longstanding systemically unconstitutional and unethical criminal justice system, namely:
1. Subject to paragraph 2 of this order, the state immediately shall take such action as is necessary to dismiss without prejudice sufficient pending criminal prosecutions to eliminate 79% of average public defender workloads, as measured on a state-wide basis in accordance with The Louisiana Project; and release all incarcerated defendants whose cases are so dismissed by triaging cases so that the cases of those defendants charged with the most serious offenses are dismissed last.
2. The effectiveness of the relief granted under paragraph 1 of this order shall be suspended until 90 calendar days after adjournment of the next regular session of the Louisiana Legislature, or one year, whichever occurs first; thereafter, the effectiveness of the relief granted under paragraph 1 of this order shall remain suspended provided that average public defender workloads, measured on a statewide basis in accordance with The Louisiana Project criteria, are reduced by at least 20% annually for a period of four years.
3. The Court appoints James Austin to serve as Special Master, and he is directed to (a) receive reports from the Louisiana Public Defender Board regarding the State’s compliance with the annual average workload reductions set forth in paragraph 2 of this order, and (b) to confer with interested persons from time to time as he deems necessary and to report to the Court on an annual basis regarding such compliance.
4. If, during the four-year period during which the State must reduce average public defender workloads as set forth in paragraph 2 of this order, the Special Master determines and reports to the Court that the State has failed to comply with any required annual workload reduction, the Court will schedule a hearing within 60 days following such report to consider whether the suspension of the effectiveness of the relief granted under paragraph 1 of this order should be terminated and/or other remedial action should be taken.
5. The Court encourages Louisiana policymakers and the Louisiana Legislature to implement policies and legislation as will allow the annual average workload reductions set forth in paragraph 2 of this order to be achieved, such as (a) statutory decriminalization of misdemeanors and low-level felonies that do not present significant risk to public safety, (b) sentencing reductions as appropriate for crimes remaining in the Louisiana Criminal Code, and (c) increased funding for public defense.
6. The Louisiana Public Defender Board shall provide to the Special Master such reports as it deems appropriate to keep the Special Master advised of the State’s progress in achieving the annual workload reductions set forth in paragraph 2 of this order.
7. The Court shall retain jurisdiction of this proceeding to enforce or amend the terms of this order, and to appoint a successor Special Master, as and if necessary.
The Equal Defense Act
An amicus brief on behalf of 43 distinguished members of the Louisiana Bar has been filed in this case supporting our position. In that brief, the amici advise the Louisiana Supreme Court that ordering such a remedy could trigger Federal supplemental indigent defense funding for Louisiana under the Equal Defense Act (“EDA”), introduced by Congressman Ted Deutch and Senator Kamala Harris and now pending in Congress.
The EDA as currently drafted would provide $250 million a year over a five-year period to state public defender organizations that have effective case management systems. Because the Louisiana Public Defender Board has developed a highly effective case management system over the course of the last seven years, Louisiana is well positioned to be among the first in the nation to receive EDA funds.
We have been working very closely with Congressman Deutch’s office to amend the current version of the EDA in two significant ways.
First, the EDA will contain a provision that priority for receipt of funds under the EDA will go to states that have adopted a plan to be implemented over the course of the five years of the funding cycle provided in the EDA to decriminalize misdemeanors and other crimes that carry no significant public safety risk and to reduce sentences for the remainder of their criminal codes so that public defender resources can be applied to more serious cases in their criminal justice system.
Second, new national numerical caseload limits for the various case types that public defenders handle (ranging from homicides to misdemeanors), based on reliable data and analytics, will be incorporated into the EDA.
These new national numerical caseload limits will replace the 1973 NAC Standards (e.g., 150 felonies, 400 misdemeanors). Based on public defender workload studies to data, it appears that those 1973 NAC Standards probably allowed public defenders to take approximately three times as many cases as they should. In Louisiana, we now know that Louisiana public defenders are handling about five times as many cases as they should.
ABA/SCLAID has published public defender workload studies similar to the Louisiana Project in Missouri, Colorado, Rhode Island and Indiana and is currently working on such studies in New Mexico and Oregon.
I have been the Project Director for all of the ABA/SCLAID public defender workload studies and I testified as an expert witness in this case.
Attached please find:
Stephen F Hanlon
 Mr. Austin is president of the JFA Institute (www.jfa-associates.com) and the principal investigator for the Brennan Center’s Report on American Prisons and Jails (www.brennancenter.org). That report concluded that nearly 40% of America’s prison population are behind bars with little public safety reason, and could be safely released, saving the nation $20 billion per year, and $200 billion over 10 years. Louisiana, which incarcerates a greater percentage of its citizens than any other government in the world, could reap significant benefits, both financial and societal, from such an approach.