Louisiana has one of the highest incarceration rates in the United States (which itself has 5% of the world’s population, yet nearly 25% of the world’s prison population). Harsh drug laws, mandatory minimums, life without possibility of parole, and multiple offender sentencing all contribute to the staggering amount of imprisoned Americans. Here in New Orleans, Alexis Chernow has worked on the front lines of the carceral state as an Orleans Parish public defender since the fall of 2014. Over the last few months, I’ve observed Mrs. Chernow’s dealings with the Orleans Parish District Attorney’s office (headed by DA Leon Cannizzaro), including revelations about their use of fake subpoenas deployed by prosecutors to threaten uncooperative witnesses (recently headlined in a story by The Lens). I spoke with Mrs. Chernow about her experiences as a public defender, confrontations with an aggressive District Attorney’s office, and recommendations for reforming the system. My questions were inspired by the placard that sits on the wall behind her desk, which reads: “Everyone deserves to be treated with dignity.”
Why did you decide to work for the Orleans Public Defenders [OPD] Office?
I knew in law school I wanted to use my degree to work for a marginalized population, but I didn’t know what that looked like, nor did I have any thoughts about wanting to do criminal law. I sort of fell into my summer internship at OPD my 2L summer; the people who worked here were so courageous and selfless, and the work they did was difficult, and the system that was ensnaring poor people in the community was so clearly rigged against them. It was as though the people in the office were attempting to help fight for those with voices that couldn’t be heard, with both hands tied behind their back. I felt very soon after I started my internship that if I was going to fight for a truly marginalized group of people who were being trampled on by the system, this was the place to do it. Many of the clients I got to meet, as well as the families I interacted with my summer interning at OPD, were processed by the system in such a way that it seemed as though everyone had become used to viewing criminal defendants as less than human—even some of the clients themselves—but especially those with the power to strip others of their liberty. Everyone deserves to be treated with dignity, whether incarcerated, in the street, presumed innocent, adjudicated guilty. I feel honored to be able to stand shoulder-to-shoulder with my clients and to have the opportunity to learn about who they are beyond a police report or a rap sheet. I think one of the most important things we as public defenders can do is to be the one person in the room who remains in our client’s corner, continuing to view, treat, and advocate for our clients as human beings, rather than as case numbers, criminals, or statistics.
Can people entangled in the justice system in Orleans Parish be treated with dignity if Cannizzaro is the DA?
Given my chosen career, I have to believe that people are capable of change. However, they have to want to make a difference in their behavior, which generally means seeing or being made to see the fault in their ways. Given the current power dynamics and the lack of consequences being meted out—even for demonstrated, blatantly unlawful and unethical practices—it is hard to hold out hope that there will be change in the current incarnation of the DA’s office. The politics of having an elected DA in a city where violent crime is a longstanding hot-button issue makes it easy to espouse rhetoric about “zero-tolerance” policies and being tough on crime. However, when the goal is to create statistics about the number of felony convictions obtained or violent offenders put in prison, all to turn into talking points to garner political support, I think the bigger picture of the long-term effects of the policies gets lost. And when that happens, there isn’t space to try to understand the people who are caught up in the system or what proactive steps could be taken to help them be able to get out.
How can the DA’s office change its policies so people can be treated with dignity in the justice system?
I think as a very basic rule, the most important goal has to be justice in each individual case. Justice includes seeking the truth in each case, listening to all of the parties involved, and trying to find an outcome that takes into account the result that furthers the interests of all parties involved. Unfortunately, politics plays a role both because our DA is elected, and because that office’s funding is not static. I do not pretend to know the first thing about how the DA’s office is funded between the city and the state, but I do know that last year they received a highly publicized $600,000 funding cut from City Council; and overall they are funded at something like four times what we are. Because New Orleans does have a high crime rate, I think shifting the public discourse from “tough on crime” to “restorative justice,” or being proactive about keeping people out of the criminal justice system could go a long way to change the rhetoric within the DA’s office.
One big issue I’ve seen is that the individual ADAs [Assistant District Attorneys] who work in the various sections of felony court have zero discretion about their cases. They don’t screen them, meaning they don’t get to decide what cases get charged or how they get charged. A separate screening division does that. And they cannot, without approval from one of two people in the office (Leon Cannizzaro himself or his first assistant, Graymond Martin), offer any reduction in charges, offer to allow someone not to be multiple billed if they plead guilty, dismiss charges, etc. Thus, the ADAs themselves are hamstrung by the volume of cases they have and their ability to make time to meet with Mr. Martin or Mr. Cannizzaro, and convince them that the defendant should be given some sort of deal. This creates a bottleneck with resolving cases and I’d imagine (though I don’t have concrete evidence to prove it) causes the ADAs to have to prioritize which cases they attempt to get approval for deals for and when.
Other policies that slow down the process and make it more difficult for defendants to exercise their rights include what seems to be the policy in the DA’s office to oppose any request for bail reduction or release without bail. As a matter of course, any bond reduction we file is opposed by the DA’s office, regardless of the individual circumstances of the defendant, the nature of the charge they are being held on, or the facts of the case. If the purpose of bail is to ensure the defendant attends his court dates and is not a danger to the community, not every pretrial defendant needs to be in jail. However, the blanket objection to bond reduction even when a person has been in jail for over a month, two months, six months, to me is used as a tool to pressure defendants, especially those on lower level, non-violent felonies, to plead guilty to something to get out of jail. Once someone is out of jail, they can much more easily decide whether to fight their charges based on the merits of the case.
“One of the most important things we as public defenders can do is to be the one person in the room who remains in our client’s corner, continuing to view, treat, and advocate for our clients as human beings, rather than as case numbers, criminals, or statistics.”
The DA’s office seems to also want their line ADAs to withhold as much discovery as possible for as long as possible, and actively objects to most subpoenas for documents and information we file. This is something that varies widely among jurisdictions. There are rules for discovery, and what must be turned over and when. However, many rules reference “within a reasonable time before trial.” I have had recordings of jail calls that were over two-years-old turned over to me in the volume of several hundred at a time, less than three days before trial—and then when I request [that] the court order the ADA to at least tell me which calls he intends to use at trial, [I have] been denied. In that case I was left scrambling to find people willing to sacrifice their weekend to listen to jail calls so I could continue prepping but also figure out if there were actually any incriminating statements in any of the calls. When I request records pertaining to complainant or witness statements (medical records, criminal histories of complainants), I am often told that they will not be turned over until just before the witness testifies at trial. Even when I am aware that items exist that I have a strong reason to believe contain Brady material [information or evidence that could be favorable to proving a defendant’s innocence], I have received pushback… [The] culture of prioritizing winning over seeking justice does not allow for treating people with dignity, because sometimes people lie, stories change, and incidents are not black and white. We are all guilty of sometimes viewing cases with blinders, having biases, and looking for the answers we want instead of the truth, but being given the permission to change one’s mind or refine one’s position when more information is obtained would go a long way towards treating people with dignity, because it would allow defendants, victims, witnesses, families to be heard, regardless of whether what they are saying agrees with the initial basis for the arrest and charge.
How do prosecutors stop breaking the Brady rule as well as no longer issuing fake subpoenas? Financially punish the DA’s office?
I think there do need to be sanctions for Brady violations. That could be discipline from the State Bar for individual prosecutors who commit the violations, sanctions on the office for allowing its attorneys to commit those violations, or even discipline the supervising attorneys when their line attorneys violate the law. I do think individuals need to be held accountable, because I’ve been hearing about witnesses receiving fake subpoenas even since a group of ADAs were named as defendants in a lawsuit about the practice, which indicates to me that they do not fear consequences for breaking the law in this way. The overturned convictions that have come from the Supreme Court (there are quite a few specifically just for Orleans Parish) for Brady violations discovered post-conviction do not seem to have any deterrent effect on current prosecutors. This is possibly because by the time the cases make it to that point, the individual prosecutors likely are no longer with the office and aren’t affected personally by the overturned conviction.
Are prosecutors punished by the state for breaking the Brady rule?
Well, prosecutors represent the state, but the court can punish them. There are wide ranging sanctions available at a judge’s discretion if Brady is turned over late in a case, including anything up to (but not including) dismissal of a case. If it is discovered after a conviction that Brady was not disclosed prior to trial, the conviction can be overturned, and a new trial set. Additionally, some exonerees have sued the DA’s office for wrongful imprisonment and have been awarded civil judgments. However, many of these—most recently out of Orleans that I remember is John Thompson—get overturned because it is on the exoneree to prove that there is a “pattern and practice” of the behavior that violated that person’s rights, which can be very difficult to do. Mr. Thompson was awarded $14 million dollars for the 14 years he spent on death row, wrongly convicted of murder. However, the Supreme Court overturned the award on the grounds that Mr. Thompson had only shown a violation in his own case, not a pattern of misconduct [on the part of the DA’s office].
“Shifting the public discourse from “tough on crime” to “restorative justice,” or being proactive about keeping people out of the criminal justice system could go a long way to change the rhetoric within the DA’s office.”
Does Cannizzaro instruct his prosecutors to treat people as numbers?
Cannizzaro is the king of the castle for Orleans Parish. I do not think there is someone who he has to report to directly.
How can the community put pressure on the DA’s office in order to affect change?
People need to be engaged about the way criminal prosecution is handled in our community and make their dissatisfaction known. The DA is an elected position, and in 2014, the only person who ran against Leon Cannizzaro was disqualified prior to the election. The policy of winning at any cost rather than pursuing justice is not something that I think most people would favor. Yet, a good portion of the voting population has never been directly impacted by the criminal justice system (beyond jury duty, which many view as an inconvenience rather than a crucial part of keeping our criminal justice system just), so they have no idea what is actually going on at Tulane and Broad, or how the policies of one office can have such a tremendous impact on the entire community. The cycling of people in and out of a world designed to strip them of their rights and liberty, and then exact their money to fund the process, isn’t the way it has to be. But it will take much more awareness, interest, and engagement from those outside looking in to bring about any sort of meaningful evolution of the system. Taking a stand, educating others on the current issues, and then voicing criticisms is where it begins. And then holding the office’s feet to the fire by voting, lobbying for funding parity and bail reform, and helping put defendants in a place where they can more readily assert their rights (if they so choose) could really start a change in the way we think about criminal justice and shift us away from the punitive model we’ve lived with for so long.
words and photos JASON KERZINSKI