Following a year of mass death and mass unemployment, the city is settling back into its own normalcy—where evictions breed profit and crime is in the limelight. While the adage goes that nothing is certain but death and taxes, equally axiomatic here is that nothing’s guaranteed but evictions and jail. Luckily, two organizations have been keeping an eye on how the courts are treating people during these times: Court Watch NOLA and Jane Place.
Before the pandemic, housing rights organization Jane Place Neighborhood Sustainability Initiative (JPNSI) piloted an eviction court watch program, training volunteers to collect data while observing eviction proceedings. This project followed the publication in 2019 of their report New Orleans’ Eviction Geography: Results of an Increasing Precarious Market. During the pandemic, first the City supposedly halted evictions, then the CDC issued a moratorium, but evictions have continued illegally and via loopholes regardless. When First City Court reopened, it was met with resistance—protesters shut the court down for the day. While our elected officials publicly debate where City Hall will move and tough-on-crime enters primetime on cue for fall elections, the true workings behind courtroom doors remain largely outside of the public eye.
While JPNSI’s program is the first in New Orleans to focus on eviction court, it is not the only court monitoring program in the city. Since 2007, Court Watch NOLA has sent volunteers to Criminal District Court, Magistrate Court, and Municipal Court to make observations and collect data. These two court monitoring programs each have their own sets of methods and recommendations, but they share one crucial belief: that the simple act of observation changes the dynamic of a courtroom. “Everything changes when there’s a court watcher in the court—everything,” said Simone Levine, executive director of Court Watch NOLA.
JPNSI began monitoring in September 2019 and paused it on March 12, 2020. Their report on data collected during that period found that “82.2% of tenants facing eviction were Black, with 56.8% of all tenants facing eviction being Black women” and that the majority of evictions filed were for just one month’s missed rent. Their data collection filled an important void. “Court records do not include any demographic information, nor do they reflect any of the conversations or proceedings that arise in the courtroom among judges, attorneys, tenants, and landlords,” said Russell Moran, interim program director at JPNSI.
The findings of Court Watch NOLA’s 2019 report (“Courts In Review”) are also disturbing. The organization found that the drug testing lab in Criminal District Court, which is physically in the courthouse, “does not follow scientific best practices when doing drug screens, failing to adequately confirm test results and avoid false positives.” In a review of 11 cases, nine led to arrests based on questionable test results.
But getting updated information for their new report (“All Eyes On Justice”) documenting 2020 was not easy. Levine says it was difficult to even find out fundamentally how the courts were operating. “There were so many contradictory orders back and forth: courts being closed, courts requiring defendants to appear but nobody really knew when, whether a subpoena was served or not was a really big question.” On March 16, 2020, Magistrate Court (which is where first appearances happen and where bail is set) began holding first appearances via Zoom, but Judge Robin Pittman denied court watchers access to viewing proceedings. As Court Watch NOLA began collecting research, they found there was nothing legally or constitutionally that should have denied them access to the courts. The week of March 16, 2020, the judges in Criminal District Court voted to deny court watchers and media access to Zoom proceedings, refusing to share a rationale or disclose how individual judges voted. Individual judges reached out to Court Watch NOLA to express that they disagreed with the decision, but because the vote was private, there was no way to confirm or deny that information. Levine points out that this epitomizes the lack of transparency in the legal system. “You have these elected officials who take a vote, who then don’t share the vote.”
The Court Watch NOLA report shares that while Municipal Court granted access to bail hearings to court watchers nearly immediately, they never gave defendants the option to appear by Zoom. Municipal Court—which handles smaller, non-felony offenses, including traffic matters—closed public, in-person proceedings in late March after not requiring masks from March 16, 2020 to March 20, 2020, when New Orleans was an early hotspot. One deputy constable later died from COVID-19 complications. When Municipal Court reopened in June, defendants were again not given the option to appear by Zoom. This forced people to make the difficult decision to risk their health to show up for misdemeanor charges, or risk being arrested for not showing up. Judges continued issuing failure to appear warrants throughout the pandemic, with at least 62 issued in the period from March 16, 2020 until the end of the year.
In August, when Marissa Hutabarat and Sara Lewis were vying for judgeship of First City Court—which oversees evictions—neither had visited and assessed the conditions in the court since it was reopened. According to census data, in New Orleans about 14% of the population is over 65 and about 10% of the population has a disability. People with disabilities are more likely to be poor, Black, and elderly; these are the same people being evicted at higher rates and not receiving adequate support. Routine sweeps of encampment sites for houseless residents have also continued throughout the pandemic, sweeps in which NOPD takes and disposes of the belongings of unhoused people. Virtual hearings, which are available at request, assisted people with disabilities and those especially at-risk of developing severe symptoms if they contracted the virus. The only time eviction court was closed during the pandemic was in the first few months when the courthouse itself was physically closed. According to Moran, some proceedings have happened over Zoom, but as time goes on that number has dwindled.
What is to be Done?
In a year when a respiratory virus made densely packed rooms exceptionally dangerous, Criminal District Court saw a stark decrease in plea bargains, causing a bottleneck. Some speculated that the backup was because of the lack of jury trials, but according to Court Watch NOLA’s report, the answer is that the district attorney (DA) simply wasn’t offering pleas. “We found that our previous district attorney, Leon Cannizzaro, had just not been offering pleas at all,” said Levine. “So if you had a new arrest, oftentimes you just didn’t receive a plea.” The report notes that another possible explanation was defendants waiting to see what a new DA would offer them because Cannizzaro’s sentence offers were so harsh. One court watcher is quoted in the report as noting multiple lawyers “questioned whether [Cannizzaro] wanted to resolve any cases before the end of the year.”
After the CDC issued an eviction moratorium in September 2020, evictions didn’t stop; JPNSI has observed more than 1,200 eviction proceedings since October 2020. “Since the pandemic started, eviction filings have shifted away from non-payment of rent to lease violations as a way for landlords to bypass the CDC moratorium,” said Moran, “and those that are for non-payment are now for multiple months of rent as tenants struggle financially through the pandemic.” JPNSI’s report found that most renters did not have legal representation—less than 7% of cases observed—but those who did fared substantially better (64.5% of tenants without representation were evicted whereas 14.6% of tenants with representation were evicted). None of this data includes illegal evictions that happen outside of the court system. In late July, one group took it upon themselves to close eviction court. Renters Rights Assembly shut down eviction court by physically blockading the entrances. Protesters blocked dozens of people from entering the courthouse, some chaining themselves together and forming an impenetrable wall. This happened in response to the inhumanity of evictions and also in response to the City hiring former short-term rental operator Peter Bowen to lead land use regulation.
Reports contain information about individual judges and their biases and practices that voters should certainly be aware of. Beyond that, both reports conclude with concrete recommendations. “The work to address the eviction crisis, which existed before the pandemic, needs to be done at the state level because state landlord-tenant laws govern the eviction process that burdens renters here,” said Moran. Some of the reforms JPNSI are hoping for include a 10-day grace period for renters to pay in full before a landlord files for an eviction, replacing 10-day no cause evictions with a standard 30-day notice, ensuring that a five-day notice really means five days, not immediate eviction if the lease has a clause that waives the five-day notice, and judicial flexibility for tenants with serious hardships.
Court Watch NOLA’s recommendations this year include making a detailed emergency plan for public access to the courts, continuing to allow virtual access to the courts, making all court dockets available online, and ensuring all attorney-client phone calls are not recorded. The Orleans Parish Sheriff’s Office became a part of the Securus THREADS program which allows phone calls from prison, including some attorney-client privileged calls, “to become part of an enormous database of recorded prison calls, phone records, and billing names and addresses” of anyone contacted. Securus Technologies is a prison communications company that has faced multiple class action lawsuits and paid millions of dollars in settlements for illegally recording and storing attorney-client privileged phone calls.
Newly elected DA Jason Williams agreed to adopt many of Court Watch NOLA’s recommendations, but did not agree to document each time these phone calls were turned over to his office. “The DA’s office doesn’t know which one is an attorney phone call that they’re not supposed to be listening to; the only way they can realize this is by listening to it,” said Levine. “So what we asked District Attorney Williams to do is once he realizes that this is an attorney-client phone call, please document it so we know how bad and how prevalent the problem is, and then turn it over to us at Court Watch NOLA and to the ACLU, to Orleans Parish Prison Reform Coalition (OPPRC), and Eye on Surveillance, all groups that are doing work around this issue. And he did not adopt the recommendation; he refused the recommendation.”
Out of Order
Moran says that barring specific scheduling issues, JPNSI “currently has monitors in court every day that Orleans Parish eviction court is in session.” They do not currently wear any identifying badges (Court Watch NOLA observers wear yellow lanyards), but they are present and collecting data on tenant demographics, legal representation, reasons for eviction, tenant habitability concerns, tenant complaints of COVID-related financial hardships, CDC moratorium compliance, the behavior of specific judges, and the results of the proceedings. Their goal is “to improve outcomes for renters in eviction court.” Previously set to expire June 30, the CDC Moratorium was recently extended through July for “one final month.” JPNSI currently has about ten volunteers, but they’re training more in anticipation of the wave of new and backlogged cases.
In 2020, Court Watch NOLA had over 150 volunteers who monitored Criminal District Court, Magistrate Court, and Municipal Court. Volunteers are provided with training to help them understand the larger process of how a case goes from an arrest, to an incarceration, to bail, to a conviction, to sentencing—which oftentimes means life sentencing. Levine says, “We really break down these large, hard-to-grasp concepts that we think are intentionally hard to grasp. Because once you break it down… then those community members can then educate their community about what’s really happening.” Observers in both programs are trained to remain silent and unobtrusive. “Something we also do is we monitor individual cases, and we’d love your readership to know this,” she says. “If there is a defendant who feels a great concern toward his or her lawsuit or his or her prosecution, or if there’s a crime survivor who has great concern, then we will sit in the court and monitor that.”
For Levine, the conflict at hand is not about criminals versus the victims or the prosecution versus the defense but rather insiders versus outsiders. She says that insiders want harmful practices to continue. “The way that it is benefits them. They get salaries out of this process, it’s life as usual, they have their own language.” The processes for moving through the court system are notoriously opaque, and there’s a lot of money to be made from prisons and land. While bail bondsmen and real estate developers funnel money into their pet judicial candidates, the people moving through these systems are further dehumanized, with fees piling up.
Just as the simple act of observation changes the dynamic of a proceeding, both JPNSI’s eviction court monitoring project and Court Watch NOLA hope their research has a real world impact. “We try to stick a spoke in that wheel of the machine that keeps on going and going and going and going and really stops for nobody, and really causes trauma to not only crime survivors and not only to defendants but all of their families,” Levine says. “This sort of reverberation of causing harm throughout all this larger community—and how are we as a community going to survive that process?”
illustrations Luke Howard