Since 2007, Court Watch NOLA has trained New Orleans residents to observe in real time the city’s courtrooms and the myriad ways our criminal justice system is stacked against the city’s most vulnerable populations. Equipped with multi-page forms and bright yellow clipboards, Court Watchers sit in municipal, magistrate, and criminal court on a daily basis, collecting data that the organization compiles and releases annually to reveal injustice and inefficiency in the criminal justice system, and to render our opaque legal infrastructure more transparent. The city desperately needs their efforts: New Orleans is both America’s most wrongfully convicted city and one of its most incarcerated. I spoke to Simone Levine, executive director of Court Watch NOLA, about Court Watch’s upcoming annual report and the organization’s everyday work, from campaigning for fairness in courtrooms to educating the public about the criminal justice system ahead of the 2020 elections.
Let’s begin with the origin story of Court Watch New Orleans. How, when, and why did y’all get started?
We really started after the chaos of Katrina. There was chaos in the criminal justice system at that time. There was a whole lot of evidence that was flooded in the basement of the criminal court system. There were a whole lot of criminal defendants that were lost in the larger system and couldn’t get in front of the court.
What was it about that vacuum in the criminal justice system that inspired the first Court Watchers to try to bring transparency to the courts then?
There was a lot of change—some of it good, some of it not so good—occurring post-Katrina in the criminal courts, policing, government corruption, education, and housing. In the criminal courts at the time there was a lot of fear about cases being dismissed due to lost evidence and witness intimidation, the escalation of violent crime, criminal defendants being detained often on very minor charges in far away jails and forgotten, an indigent defense system that did not work; and judges, prosecutors, and defense attorneys not showing up to court… Court Watch NOLA was created because people felt it would bring some order to what was perceived as chaos.
When Court Watch was a young organization, what shocked observers most during their first courtroom experiences?
When we first started, one of the things we were recording was when judges would arrive to the bench and how often a case was delayed. It was really shocking just how very long a case can stay in criminal district court without any disposition occurring whatsoever. It was shocking how very long a criminal defendant can remain in jail before their case goes to trial, and how very long a crime victim can keep returning back to court again and again, trying to get some kind of resolution. I think that’s still really shocking today.
How many Court Watchers volunteer with your organization today? About how many cases do you think Court Watch NOLA watchers have observed since 2007?
We have about 100 to 125 Court Watchers in a year, which is many more than when we first started. When we first began, I believe we had about seven or eight Court Watchers with the organization. In terms of cases, since the very beginning, I would say certainly over 100,000 cases have been observed at this point.
That’s a lot of data. What kind of data are your observers collecting, and in which courtrooms?
We monitor municipal court, we monitor magistrate court, and we monitor criminal district court. So anywhere that a criminal defendant could serve jail time, we are in that court. Municipal court is where misdemeanors are heard, and criminal district court is where felonies are heard. Magistrate court is where bail hearings take place, and where pretrial release is determined, at least initially.
We’re the only group that is in there collecting data. It’s really important because it’s really hard to get data out of the courts. The courts themselves oftentimes don’t aggregate data. If you make a public records request, a lot of the time the response is, “We just don’t collect that data,” so we try to fill that hole.
[pullquote]”One of the issues we’ve tracked since the beginning at Court Watch NOLA is the lack of transparency in our judicial system: all the backroom dealings and all the conversations that occur off the record.”[/pullquote]
A lot is going on in these courtrooms. How do you decide what type of data to collect?
We speak to a whole number of people including prosecutors, defense attorneys, church groups, community groups, victims’ rights groups, and a whole host of groups about what data we should be collecting. Every year around October, we go out to many different stakeholders and we ask them, “Hey, what data do you think we should be collecting this year?”
I like to think we represent the interests of just a normal New Orleanian, and a normal New Orleanian wants a fair criminal justice system. They don’t want wrongful convictions. They want to hear that their public officials are following constitutional law. They want to know that they’re safe in their homes. They want to know that victims are being healed by the system and that they are being treated with respect.
When you go into the system, it’s a real insider’s system. They speak a different language, they have different interests. It’s a real adversarial system of prosecutors against defense, but that is not what is in the interest of New Orleanians. New Orleanians want a fair system, a system that will treat people with respect even if they have been arrested, a system built on the notion that people are innocent until proven guilty and that victims need to be treated with respect and given closure.
Sample of a data sheet (1 of 10) for Criminal District Court
Since 2009, Court Watch NOLA has released an annual report summarizing all of your Court Watchers’ data from that year. In the past, these reports have revealed massive failures of justice in New Orleans’ criminal justice system. Can you tell me what your two most recent reports uncovered?
Every year we try to write a short annual report, and every year we end up with a 50 or 60 page annual report. We wrote a report two years ago relating to domestic violence victims being incarcerated by the district attorney (DA) in order to compel their testimony, which was an issue we brought to light. Putting that in the report was our approach to a problem that advocacy groups had been working on for a really long time. It is very important to acknowledge that, because we were the ones that made it public but victim advocacy groups and victims had been struggling in the dark about this for a very long time, so certainly we cannot take credit for pushing this issue.
Another issue we brought up was the lack of evidence we see in criminal district court. The last time it was documented, we [in New Orleans] have the highest number of wrongful convictions for any county or parish above 400,000 people. One of the issues that we think really leads to wrongful incarceration is the fact that in a lot of criminal cases it’s about a “he said, she said” issue, so you have witnesses who may not have a clear understanding of who it was that did commit the crime, or you might have witnesses that have an adverse interest in pointing out somebody else in the case. We have some heavy sentences in Louisiana, and when you are one of the highest wrongful incarcerators in the country and you couple that with such high sentencing, the stakes are very high.
One of our recommendations—that I don’t believe ever occurred—was that there be more lab techs and individuals from the police department to collect hard evidence at crime scenes, and for courts to use more videotape footage. This is all really so you could be able to say with a greater degree of certainty: here is the hard evidence.
In this year’s report, we are going to revisit one party sidebars, which are when judges have private conversations with the DA or the defense attorney without having the opposing counsel there. If they’re talking about the merits of the case, it is totally unethical. It is against the judicial canons and it happens a lot. One of the issues we’ve tracked since the beginning at Court Watch NOLA is the lack of transparency in our judicial system: all the backroom dealings and all the conversations that occur off the record.
Speaking of backroom dealings, Court Watch also uncovered another huge breach of ethics in the City’s justice system: phone calls between incarcerated criminal defendants and their defense attorneys were being secretly recorded by the parish jail and given to the district attorney’s office. Can you talk about that discovery?
We reported on the fact that our jail—our sheriff’s office—was recording attorney-client privileged communications. Attorney-client privileged communication has existed… a really long time. Actually it’s been about 1,000 years that we’ve had this privilege. So they were recording these attorney-client privileged conversations against that privilege and they were then turning it over to the DA, who was using it in criminal cases against the criminal defendant, which is completely against their constitutional rights.
The point of attorney-client privilege is to get to the truth. If a defendant knows they are having a private conversation with their lawyer, then they are able to be more truthful and the lawyer has the ability to ascertain what a proper defense is. If you have someone that constantly feels that they are being surveilled, you already have a level of distrust between somebody who is incarcerated and their defense attorney. How else are these defendants supposed to have truthful conversations with their attorneys? The jail said defense attorneys can just go into the jail and have these private conversations there. Well, the problem is that half the conversation booths in the sheriff’s office actually have video cameras installed. They say that there’s no sound, but who knows if that is the case?
In light of all these revelations, have you seen behavioral changes from justice department players like sheriffs, judges, and prosecutors?
Yes. The response has been really interesting. One of the issues we looked at in the last report was the lack of interpreters at bail hearings. The way that Court Watch NOLA’s system works is we collect the data, we release the data, and we do the research to say, “Hey, this is what the law is, what the constitution says, what the best practice is.” Then we sit down with the judges, the prosecutors, the defense attorneys, the DA, the sheriffs, and the police and give our recommendation. The stakeholders are supposed to discuss it with us and then hopefully they follow our recommendation.
So with the interpreter issue, we worked hand in hand with the criminal district court and city council and the mayor’s office to try to find adequate funding to ensure that there were interpreters that were always going to be available in bail hearings; and we did. They did put that money in the budget to hire additional interpreters and we do think the problem has gotten much better. We managed to do that with the cooperation of the chief judge, Keva Landrum-Johnson.
Another example occurred with the issue of lack of counsel, which we were looking at in municipal court. We saw that in 61% of cases, there was no defense attorney present with the criminal defendant at all. And in a majority of cases, there were criminal defendants taking pleas without defense attorneys present at all. There is this notion that it’s legal for criminal defendants to take pleas without a defense attorney; but in fact, what the law says is that if there is any chance the defendant will go to jail—even eventually—the defendant needs a defense attorney.
We pointed that out and put it in the report. We worked with judges, city prosecutors, and public defenders… We commend our stakeholders when we think they’re doing the right thing, even when it means they’re doing the obvious thing, or the thing they should have done a long time ago.
Can you tell us anything about the 2018 report you are releasing this month?
It’s about a lot of things. One of the sections relates to conflicts of interest and violations of ethics codes. I mentioned one of the things we’re looking at is one-party sidebars. Our Court Watchers include qualitative data if they see any discrimination occurring in criminal court, so we discuss that in our report.
We also include a section relating to victims’ rights, in that we want to make sure that victims are being heard in criminal court, that victims are being given some degree of protection when it comes to their testimony. In one of our last reports we highlighted the fact that in 5% of all the felony cases we saw, there was witness intimidation. So, now we are in a working group with the New Orleans Police Department and the City. I bring this up because we still see a lot of witness intimidation in court.
We also have a section relating to bail and bond reform and fines and fees, and then we are looking at an issue relating to just incarceration. Finally, we are looking at efficiency. When we talk about efficiency, what we are doing is looking at the 100 oldest cases that are in criminal district court and trying to figure out what exactly caused them to be the oldest cases.
Beyond the reforms your organization has called for, there has been a lot of criminal justice reform in this city over the past few years, especially since New Orleans was awarded the MacArthur Foundation’s Safety and Justice grant to decrease our average daily jail population. The mayor’s office has touted changes like the implementation of a risk instrument for bail setting, lower bails for lower charges, and fewer people in Orleans Parish Prison. Have your watchers seen these reforms in effect in the courtrooms?
Do we see the amount of bail reduced on an aggregate level? I would say yes. I think there has been some really healthy debate and conversation around whether the risk instrument is a good risk instrument, and I think the consensus is that it is an instrument, and a human being is a human being so you can never perfectly determine what is going to happen. You can only put a model into place and try to ensure that there are enough tools for it to work.
I’m encouraged in general by the level of conversation we are having in New Orleans right now. We used to get into conversations that were very black and white. It’s never a good idea to cherry pick cases, for example. When you have such a poor populace that is continually incarcerated and such a high wrongful conviction rate, then when you collect data you have to look at the majority of the group that is incarcerated and not individual cases.
One thing that is very important and that we at Court Watch NOLA have been really pushing is that crime victim groups and advocates be more involved in that conversation so it’s more robust. We really feel that criminal justice reform can’t happen without crime victims involved, so we helped set up a table with crime victims and the bail reform coalition so that they would be able to learn of the facts themselves. A lot of times crime victims are tokenized and not given their own voice. Other people speak for them, and usually not well.
Magistrate court has been receiving a lot of attention in the news, especially after the ruling this fall in a federal lawsuit that found New Orleans’ magistrate court’s bail-setting practices unconstitutional for failing to consider the financial status of defendants. But I haven’t seen much coverage of bail-setting in criminal court.
That’s right. There has been a lot of attention placed on those [magistrate] judges, and we feel like those judges have been more active in making their assessments and thinking through their assessments. I can say that the commissioners are trying to make assessments better and think through their actions more. Meanwhile, sometimes you have bails which are $100,000 in magistrate court; and once the case goes through a grand jury or a bill of information is brought (which is just a list of information the DA writes saying there is enough evidence that the case is a felony), the bail is raised to a million dollars. And there are very few people paying attention to that right now.
So while the city is having a lot of very important conversations around reform, we clearly have a long way to go. What big obstacles to reform do you still see?
Recently, I was talking to a representative of a victims’ rights group who told me that we have the second highest female homicide rate [women murdered by men] in the country. I bring this up because we as a city have a long ways to go from all directions. We are not doing particularly well in any area right now; we have a lot of improvement to make.
In light of all the work that needs to be done, what are your goals for Court Watch NOLA in the future?
My biggest goal when it comes to Court Watch NOLA is making sure that voters are going to be educated for the 2020 elections. Historically, we have a low voter turnout in New Orleans but 2020 is a presidential election, so we are optimistic. We are a 501(c)(3) so we will not endorse any specific candidate, but I feel that it is our fundamental responsibility to ensure that there is a healthy debate over the real issues that matter in criminal justice.
We cannot continue to elect somebody’s brother’s cousin to be our judge or our prosecutor. We absolutely need to increase the level of education, and show how the issues that these public officials determine affects everyone’s life, from the most poor to the most wealthy. There is so much at stake.
We have done so much work in Louisiana to make sure that people are allowed to vote, especially after the recent legislative changes that allow people with previous felony convictions or on probation to vote. With an expanded populace with the fundamental right to vote, we need to make sure that people are exercising it and exercising it intelligently. That is my number one priority when it comes to Court Watch NOLA: to empower citizens so that we are electing people from an educated place.