Even years before the water came to New Orleans, many of its indigent criminal defendants had been left to drown in the state's criminal justice system. During the last decade, Louisiana's indigent criminal defense was so underfunded that in 1993, one public defender in New Orleans refused to go forward with his cases, saying that with such inadequate resources he couldn't provide a level of representation that would pass constitutional muster. A year later the State Supreme Court created an emergency board to reform the state's system and that was followed by legislation a few years later.

But things didn't get much better. From the American Bar Association to the New York Times, nearly every single report on indigent defense in the state over the past ten years has declared the system in crisis. When Katrina hit last year it made a bad situation much, much worse. With public defender staffs at a third of capacity, caseloads that continue to mount and defendants scattered across the state (some of whom shouldn't be in jail), an ad hoc coalition of public interest lawyers and local legal clinics are now fighting upstream to deliver justice to those now languishing in a doubly-broken system. The situation has grown so dire that one New Orleans judge is threatening to release 1,000 people currently in jail unless they are provided with constitutionally adequate counsel.

Since first being appointed to head the state board charged with reforming criminal justice, Louisiana native Jelpi Picou has been one of the state's most outspoken advocates for reform. As head of the Capital Appeals Project, he directs appeals up to the state's supreme court for indigent clients sentenced to death, and has testified dozens of times before legislative bodies about the shortcomings of the state's criminal defense system. In These Times spoke to Picou about the challenges facing public defenders trying to rebuild an apparatus that was already in ruins.

So, first, tell me how indigent defense works in New Orleans specifically?

New Orleans has a staff of public defenders. A lot of the attorneys are hired for extremely low salary and called "part time," but given more cases than a full time attorney somewhere else. There was even a front page New York Times article some years ago about how over-worked they are. New Orleans indigent defense claimed to have 42 attorneys, 6 investigators, and 6 personnel prior to Katrina hitting. If you look at the statistics from pre-Katrina, just in district court there were almost 10,000 criminal filings in one year. Juvenile had another 1,000 cases, and they staff municipal and traffic [cases], which is another 300,000 cases.

I don't know what the average salaries were; some of the studies say in the $20,000s, some say in the low $30,000s. Of course, these people were carrying caseloads in record numbers--numbers that make the national experts of caseload and workload statistics blush. There's never been a study done of the system that hasn't found embarrassing levels of cases; there's very, very little support. Orleans Parish indigent delivery system is one of the worst if not the worst in the country.

I'm guessing--just to kill the suspense here--that Katrina didn't make things a lot better.

No it did not, unfortunately. In the immediate aftermath of Katrina, the Orleans Parish public defender's office was reduced pretty quickly to about six attorneys and one investigator. And that lasted until about March and now there are 11 attorneys and one investigator.

And was there a corresponding drop in the caseload?

No. Absolutely not. When the levees broke on August 30, 2005, there were 7,000 inmates awaiting trial. About 5,000 of those were in jail.

And they're still awaiting trial?

Many of them are. We don't have exact numbers. A consortium of volunteer attorneys around the state is now trying to get a grasp on how we might go about providing representation to the thousands of prisoners that are languishing in 13 different facilities throughout the state. If you think about trying to track down thousands and thousands of cases, it's Herculean.

OK, so let's say you were picked up for possession in New Orleans in July and you didn't bond out, you're sitting in jail, the hurricane comes...

...Which was a debacle; the jailhouse drowned.

And when it's all over you end up in some other part of the state.

Separated from your paperwork. We are still trying to track down and contact those detainees awaiting trial.

So lawyers don't even know where their clients are physically?

They don't even know who their clients are. Part of the problem is that due to a peculiarity of the New Orleans system, there's this huge gap of representation. Say you're brought in for possession of drug paraphernalia. There's a public defender there for that initial appearance, but it's completely pro-forma--they do them en masse each day. The judge will set a bond for a $1000, which a lot of poor people in Louisiana just can't make. If you can't make it, you go back into custody and are no longer represented by the public defender anymore. Now, the district attorney (DA) has 45 days in which to decide whether to charge you if it's a misdemeanor, and 60 days if it's a felony. So you sit unrepresented in jail in New Orleans until the DA decides if they are going to charge you.

Once they make a decision, if they don't charge you, then you're supposed to get released, though we've found people who've slipped through the cracks. If they do charge you then you get assigned a lawyer.

But what actually ends up happening is that you get arrested and you sit in jail for 45 days with no representation at all. The vast majority of these 5,000 people who were shipped out around the state were detained pre-trial, and they weren't being represented by anyone!

They were in the gap.

Correct. One of the shameful things in Orleans is that the district attorney's office refuses charges in somewhere between 35 and 50 percent of the cases. So between 50 and 65 percent of those who spend up to two months in jail don't have any criminal charges brought against them at all.

That's insane.

Yeah, it's appalling. And it's not the DA's office, it's not their fault that they can't make cases from bad police work. I really do lay that statistic mostly at the feet of the police who are making a lot of bad stops and bad arrests.

So what is the situation like now? Are there people sitting in jail somewhere in Louisiana right now who should have been released around when Katrina hit?

Absolutely. We find new ones everyday. A group called Safe Streets actually traveled to these 13 facilities and talked to people and they've released a report with their stories. They're quite telling--sad, small vignettes of untold human misery.

Given the scope of the chaos and destruction in New Orleans, what are the odds that criminal defendants are going to receive any kind of attention from anyone ?

We have some extremely powerful forces working against us. The DAs in Louisiana are an extremely powerful political force and they want absolutely no improvement. They have testified against every bill designed to improve this system. And I think that the judiciary is lackadaisical to a certain extent.

My hope--and they say hope dies last--is that this is our great opportunity to see wonderful changes made to a system that's desperately needed it for decades. But I also recognize that indigent defense has always been last on everyone's list.

If you could wave a magic wand and change three things about the system starting tomorrow, what would those be?

We would have an independent public defender system. We would have parity with the prosecutorial function in the sense of caseload limitation, collateral resources, communications with your client, those types of things. And I think the third would be wraparound, vertical representation for every person in need of constitutionally mandated counsel. I envision a system where someone can call up and say, 'I know that there's a warrant out for my arrest and I don't know what to do.'

The same way that if you had money for a lawyer you would do that.

Exactly. A lot of successful criminal defense happens prior to the charge. We need to keep the system honest and if we could make inroads in just those three things, then I think we would have a vastly improved indigent defender system. Our clients come to us because they're poor, not necessarily because they're guilty.