by Matt Clarke

Where can you face criminal prosecution for doing your job? The answer is New Orleans if you work for the Orleans Public Defenders (“OPD”).

Prosecutors in New Orleans have been threatening to criminally charge the public defenders and investigators who conscientiously do their jobs, in a tactic to suppress their zeal. Some have actually been charged.

In one case, prosecutors indicted OPD investigator Taryn Blume for impersonating a peace officer after she sought to obtain records from a public housing security office. Another OPD investigator, Emily Beasly, was arrested and led out of the courtroom in handcuffs after prosecutors charged her with two counts of kidnapping for talking with two young girls, who allegedly had been sexually assaulted, outside their house while their mother slept inside.

Prior to the devastation of Hurricane Katrina in 2005, New Orleans had no full-time public defenders. Instead, judges appointed attorneys to handle individual cases involving indigent defendants. In the pre-Katrina era, New Orleans was jailing more people per capita than any other major city. After Katrina, the OPD was reformed into an independent, full-time office recruiting mission-driven, top-tier lawyers from across the nation.

The reform shocked a criminal justice system that was accustomed to churning out convictions wholesale with little investigation by—or opposition from—the appointed defense attorneys.

“They [the new breed of OPD lawyers] believe in this basic concept that your lawyer and your defense shouldn’t be dictated by the amount of money you have,” said OPD attorney Danny Engelberg who, along with OPD attorney Kenny Green, was convicted of contempt for protesting the arrest of Emily Beasly after she interviewed the two girls. The convictions were overturned on appeal, and Engelberg insists that such tactics by prosecutors will not dampen his zealous representation of clients.

The same cannot be said of Taryn Blume, who was 25 when she was arrested for impersonating a peace officer. She had requested a phone log from the security office at a public housing complex where an alleged rape had occurred. She identified herself as an OPD investigator and even gave the security officers business cards that identified her as such. Nonetheless, when one of them called the prosecutor’s office to ask when they would be needed to testify, he mistakenly said she had identified herself as an investigator for the District Attorney’s Office. That miscommunication by the security guard prompted the prosecutor on the case Blume was investigating, Jason Napoli, to seek and get an indictment for impersonating a peace officer.

What followed was a nightmare for Blume. Napoli did not contact OPD prior to the indictment. When he got it, he did not notify the judge that Blume was an OPD investigator, so the judge set her bond at $50,000, an amount typically reserved for those charged with a violent assault. The next 18 months of Blume’s life were consumed with preparing her defense, only to have the prosecutor drop the charges on the day of trial when the judge refused to grant a fourth delay. The prosecutor specifically retained the right to recharge her, so she remains in potential legal jeopardy until the statute of limitations expires in April 2018.

Blume no longer works for OPD. She could no longer endure the stress and started studying social work in New York. But the effects of the pending charge followed, barring her from internships or jobs involving children—the field she wants to enter as a career.

Since District Attorney Leon Cannizzaro Jr. took office in 2009, OPD attorneys have been accused of kidnapping, impersonation of a peace officer, and witness tampering. None of the charges withstood scrutiny, but all have left an indelible mark on OPD staff. Both attorneys and investigators at OPD said they feel that everyone in the office is vulnerable.

To reduce the risk of being criminally charged, OPD instituted a new policy requiring employees to work in pairs when working outside the office. That way there is always a witness. But the OPD is perpetually underfunded, and that precaution is resource-intensive, reducing the ability of the OPD to properly represent its clients.

According to legal experts, “the practice of charging public defenders is highly unusual and raises ethical concerns.” Bennett Gershman, law professor and notable expert on prosecutorial misconduct, offers this critique of the alarming episodes that have taken place in New Orleans: “I can’t think of any way to justify what the prosecutor’s office has done.” He worries that prosecutors in the office are using their charging power in an effort to gain an advantage or to intimidate defense lawyers and investigators. “It’s an abuse of power by Cannizzaro’s office,” Gershman concludes.

The tactics being utilized by Cannizzaro’s prosecutors has caused alarm across the country. In December 2016, the National Association for Public Defense released a public letter to Cannizzaro, warning that the practice of threatening and intimidating the defense undermines the system as a whole. The letter states, “The legitimacy of our criminal justice system depends upon defense lawyers and defense investigators doing their jobs, and doing them well, without fear of reprisal from a prosecutor acting more like a bully than the champion of truth and justice he is supposed to be.”

 “As crazy as it sounds, there’s no reason it couldn’t happen in your jurisdiction, that it couldn’t happen to you,” said Mark Stephens, chair of the association’s steering committee. “So definitely it could have a chilling effect on public defenders across the country.”  

Sources: www.theguardian.com, www.nola.com

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