In August of 2018, I began interviewing attorneys at the Orleans Parish Public Defenders (OPD) office to give the public inside knowledge of the criminal justice system. So far, their collective narratives have spoken to these attorneys’ resolute nature, making sure their clients are treated with equity as they navigate the legal system. This time, I spoke with Aaron Zagory to discuss why he decided to work at OPD, as well as the Metropolitan Crime Commission’s (MCC) Orleans Parish Judicial Accountability Report. MCC is a non-profit organization that annually ranks criminal court judges by examining “inventory of open felony cases or docket, percent of open felony cases more than a year old, and time it takes to close felony cases” to determine how efficient judges are at managing their dockets. We also talked about how efficiency ratings have impacted the courts and in turn negatively affected case outcomes, and what other criteria could be evaluated in order to safeguard individuals who are going through criminal proceedings.
Why did you decide to work for the Orleans Public Defenders Office?
I came to the Orleans Public Defenders because I believe that human beings don’t belong in cages. We use jails, we use prisons as the solution to a lot of problems in society—drug addiction, mental illness, homelessness, poverty, even violence—and I don’t think that’s the right way to go about solving these problems. I think that in the future we’ll look back and see just how brutal and unproductive these measures were, and I think we need to work on it right now, finding other solutions of keeping people out of jails, keeping people in the communities. The reason that I came to OPD in particular is because I knew I’d be surrounded by co-workers who had adopted the same mission in life, and are going to work tirelessly to represent their clients and keep them out of jail. A lot of people believe that jails aren’t the solutions to our problems and that we need to return people to let them be members of our community again.
Was there a reason why you became a lawyer? Is there a specific memory that sticks out?
Ferguson in 2014, when Michael Brown was killed by police in St. Louis County, Missouri. I went there to do legal observations for protests. And you get there and there are tanks, there’s National Guard, there are people on rooftops with rifles pointing down at people in the community, civilians who just want to stop being abused by their police force, to stop being killed by the police. And the way that the government decided to react is with overwhelming force, tear gas, and bullets. Seeing that often state power is not on the side of recognizing our grievances, of resolving disputes that we may have between each other; but instead just uses whatever tools that they have, which is guns, handcuffs, tear gas, and prison cells. That has me convinced that the tools that we’re using right now aren’t making society better. There are people in the community who have better solutions; there are people in the community whose grievances aren’t being addressed. We need to find a way to do that outside of the confines of the criminal legal system. And in order to get there we need to limit the power of the criminal legal system.
Are you familiar with the Metropolitan Crime Commission and their annual accountability report?
The accountability report is one metric that’s used to evaluate what happens at Tulane and Broad. It ranks judges by which one has the fewest cases in their courtroom, meaning which judge gets rid of cases the fastest, as if this is some kind of race. The problem is that it takes a very limited data set; and because there aren’t too many other metrics that are published to the public about what happens at Tulane and Broad, it gets undue attention as the main way that we should be evaluating judges’ work at the courthouse.
Can you talk more in detail about what information is evaluated in that report?
It’s a ranking of each of the 12 criminal district court judges, 1 through 12—which judge has the most cases on their docket. The assumption is that each judge should be receiving about the same number and same type of cases, and that they should be distributed randomly, so there shouldn’t be any appreciable difference in the number of cases that each judge has to handle. But what they rank is the number of cases that each judge has at any one time. So if some judge is allowing cases to go on for longer, then their total number is going to be higher and they’re going to be ranked last on the rankings. And the judges who get rid of cases quickest, they have the fewest cases active and they’re going to be ranked at the top of the rankings. It doesn’t tell us anything about if a client in any case has received all the discovery. It doesn’t tell us anything about how much pressure they’ve been put under to take a plea that maybe they otherwise wouldn’t have. It doesn’t tell us about anything, really, other than which judge is able to get cases to trial or plead faster. Efficiency is extremely easy to rank in the courthouse because it’s easy to see how many cases go in and easy to see how many cases are active in each court section at any time, but it has very little value in telling us if things are going as they should in that courtroom or if they’re not.
What’s being left out of the conversation by giving too much attention to efficiency?
What effect is the court having on people’s lives? And that includes people who are accused of crimes, how many days they spend in jail, how many days they spend away from their family, the suffering that their family experiences as a result of not having them around to support them financially, to be there emotionally. Efficiency doesn’t tell us anything about whether somebody’s root problems are being addressed, whether somebody’s life is being improved such that they no longer come into contact with the criminal legal system, which I think should be our goal. Efficiency doesn’t tell us anything about how complainants feel they’ve been represented in the process, whether they feel that the process has led to any sort of healing for them, or recuperation of what they lost. Efficiency tells us absolutely nothing about that and in fact, goes against improving people’s lives through contact with the system.
Does the report negatively impact the system? Can you give me an example of how a client has been affected?
Some judges resist it but this incentivizes every judge to get rid of cases faster. Judges in Louisiana don’t have the ability to dismiss cases; only the district attorneys do that. So, the only other way for judges to get cases off their docket is trial or a guilty plea. We know that in the United States, in every jurisdiction, over 95% of cases end in a plea agreement, because the potential consequences of going to trial are too high. Rational people often don’t want to risk the possible penalties of going to a trial, and so what you’ve incentivized the judges to do is move people to plead guilty as quickly as possible. I’ve seen examples where people walk into court having paid their bond already, and then the DA decides to put on a new charge. The judge sets a bond on that new charge. That person who had been arrested a few months earlier had already paid what little money they had to get out of jail. Because of the DA’s decision to add a charge the police never charged, it makes the guy come up with another five, ten, $50,000 bond… And what you have is a client who’s done everything they’re supposed to do, then is faced with a situation of: “Am I going to plead guilty and hopefully take probation on this case, or am I going to go to jail again? But this time I can’t afford to get myself out.” That’s a situation that’s heavily incentivized by idolizing efficiency.
Can you name any other examples?
Exploding offers… that’s where the DA says you can plead guilty and take X years now, but if you do this hearing, the offer will get worse. Or there won’t be any offer at all. It’s a threat. For the client, they haven’t had a preliminary hearing yet; they haven’t had the opportunity to challenge the evidence in their case or confront any of the witnesses in court. They probably haven’t received all of the discovery and in some cases haven’t received any. All of a sudden they’re expected to make an informed decision at a critical juncture of their case. A lot of times clients make what turns out to be a very rational decision but one that they should never have to make. When DAs use this tactic they do it because they think they’re doing less work and getting rid of a case faster: bully the client into taking a plea offer and you can get rid of that case. But what they’re really doing is preventing people from exercising their constitutional rights. They’re preventing judges from being a check on police power because we don’t get to do the hearing where we call out the officer for a bad stop or an illegal search. They’re preventing juries from being the bulwark of liberty for our people—all in the name of efficiency. The people of Louisiana rejected efficiency as a primary goal of the criminal legal system when we got rid of nonunanimous Jim Crow juries last year. Efficiency often is a euphemism and tool for racism. It was a way of feeding Black people to the convict-leasing system then, and I think it’s impossible to ignore the parallels now.
What other measures should be evaluated besides efficiency?
When the police arrest somebody, accuse somebody of a crime, they fill out a report, they take that person to jail and they put that report in the hands of the DA’s office. The district attorney is then in charge of deciding whether or not to prosecute that case. There are other things that we could be measuring. In cities of comparable size, they accept about 50 to 60% of the cases that the police department hands to them. Historically in Orleans Parish, under the Cannizzaro administration, it’s been about 90% plus. In Louisiana the district attorney has 60 days for felonies to make that decision of whether to accept the charges. That means that you’re sitting in jail for often those 60 days before the DAs decide if they’re going to refuse your charges. So you could end up not being accused of anything at all and spend 60 days in jail, just because you were too poor to be able to pay your way out.
In Baton Rouge, they’ve recently changed it to reduce that from 60 days to a target that’s more like two or three days. That’s possible, but we don’t practice that here, and so I think what you could be measuring is how quickly cases get accepted or refused, so people know what’s actually going on and [can] get back to their lives, especially in cases where it turns out that they’re not going to be charged with anything. Because maybe the police shouldn’t have arrested that person. Maybe there’s evidence saying they didn’t commit the crime. Maybe the person who’s alleged to be a victim says, “I’m not a victim, I don’t want charges to be pressed in this case.”
You could be evaluating how quickly discovery gets turned over. Even after those 60 days, we often get to arraignment (that first court date), and there’s no discovery from the District Attorney’s office. If they’re making the decision to charge you with a crime and they think they have the evidence to convict you of it, then they should be able to turn it all over so you can make an informed decision about what you’re going to do with your case. Instead, we file motion after motion and make request after request to try to get all that evidence, and it comes piecemeal until the night before a major hearing. We get some discovery dumped on us the morning of trial and the client and the attorney are in a position where they have to make extremely important, life-changing decisions on very short notice. Instead we could be measuring whether the district attorneys are willing to engage in something called open file discovery: if you have the evidence to put somebody in jail, prove it, turn it over, let people defend themselves. Right now, we don’t practice that, we don’t practice any sort of comprehensive turning over of discovery. You could evaluate that.
You could also be evaluating whether the court cases are actually in line with what the community wants out of a legal system: if people don’t want marijuana prosecuted, or people don’t want drugs prosecuted, or people who are alleged to be victims don’t want those cases prosecuted. I think it’s pretty clear coming from the community that they don’t think these are matters for putting people in jail.
For more info on the Orleans Public Defenders, go to opdla.org.
photos Jason Kerzinski
